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OHIO TO GIVE ATTORNEYS PAST DATA ON DUI BREATH-TESTERS

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

For more than two years, Ohio Department of Health officials told judges and justices that it was nearly impossible — even under subpoena — for the agency to turn over past test results from Intoxilyzer 8000 alcohol breath-test machines.

Faced with an Ohio Supreme Court decision that could have made the $8,000 machines useless in testing drunken-driving suspects, the agency now says it expects to be able to turn over test results to defense attorneys by Dec. 1.

Over the years, some judges across Ohio have refused to admit test results from the Intoxilyzer 8000, ruling that it has not been proved scientifically reliable.

The Supreme Court ruled on Oct. 1 that DUI defendants are allowed to challenge the accuracy of their tests by obtaining data from previous results generated by the alcohol-test machine into which they blew.

Health officials had said it was a difficult technical and financial challenge to turn over years’ worth of computerized data about previous drivers’ test results and calibration tests from the oft-questioned testers.

Now, records provided in response to a request by The Dispatch show that attorneys who since have issued subpoenas for test results are being told that “software is being created to access the requested records.”

DUI defense attorneys had contested the notion that the state could not produce data from hundreds of the Intoxilyzer 8000s that the health department bought for $7 million in 2009 and distributed to law-enforcement agencies across Ohio.

Defense lawyers said that state officials balked at turning over the data because it could prove that the machines deliver inaccurate results and cannot be legally relied on to convict suspects of drunken driving.

The Dispatch also asked the health department to provide documents and emails since Jan. 1, 2013, addressing the accuracy and reliability of the Intoxilyzer 8000 and the department’s inability to provide test results.

The health department responded that it could not locate any such records.

DUI defense lawyers Tim Huey of Columbus and Steven Adams of Cincinnati, who won the Supreme Court ruling on behalf of a client, both used the same expletive in response to health-department officials saying they could find no records on the issue.

“We’ve been fighting this for years. There’s no way. There’s no doubt in my mind there are communications,” Adams said. “They don’t want to be truly transparent. They’re about covering their (rears) and getting convictions and protecting the police and governmental abilities involved.”

Huey added about the department’s response: “That has to be false. If’s that true, it means they have completely buried their heads in the sand, or they’re doing things off the books so there is no documentation.”

Health department officials did not respond yesterday to questions about the lack of records, or any other matter. A spokeswoman said only that the software to extract the test data is being designed in-house at an undetermined cost.

Most law-enforcement agencies in Hamilton County (Cincinnati) and Summit County (Akron) have stopped using the Intoxilyzer 8000 and have turned to other breath testers since the court ruling.

Franklin County law-enforcement agencies opted not to use the machine when it was introduced. Twenty-two agencies in the six surrounding counties, including State Highway Patrol posts, use the Intoxilyzer 8000 to test DUI suspects.

Defense attorneys fought for years to advance a case to the Ohio Supreme Court as they argued that the Intoxilyzer 8000 was unreliable and subject to other factors, such as temperature, that yield false results.

The health department stands by the machine, saying it is scientifically reliable and accurate.

The Supreme Court upheld lower-court rulings dismissing the DUI case of Adams’ client because health officials failed to turn over breath-tester data in response to a subpoena.

For three decades, a Supreme Court ruling interpreted state law as forbidding DUI defendants from generally challenging the accuracy and reliability of breath-testing machines certified by the state.

But the court ruled last month that state law does not prevent suspected drunken drivers from obtaining data to assess the accuracy of the specific alcohol breath-test device on which they were tested.