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Update on Ohio's Breath Testing Battles

Defense attorneys point out breath test flaws

NEWARK -- Would you trust a machine that is banned in other states for unreliability to test your blood-alcohol content?

The state of Ohio does.

In 2011, Licking County law enforcement agencies started using the Intoxilyzer 8000, a breath-alcohol testing machine manufactured by CMI Inc. in Owensburg, Ky., Newark Law Director Doug Sassen said. Most used it along with the BAC Datamaster, its predecessor manufactured by National Patent Analytical Services in Mansfield.

Defense attorneys have raised several concerns about the reliability of the machine from its record-keeping to the possibility a smartphone could alter a blood-alcohol content test.

To make the Intoxilyzer 8000 portable, CMI Inc. used a different light source, detector and filters. The 8000 uses a pulsed light beam that measures at four points per second, compared to 40 points per second on the Intoxilyzer 5000 or about 100 points per second on the BAC Datamaster, defense attorney Robert Calesaric said.

"Because of the longer pauses, it does not allow as accurate of a reading," Calesaric said.

The Intoxilyzer 8000 is more prone to picking up mouth alcohol or acid reflux that have higher levels of alcohol. Its limited pulses might not pick up a spike indicative of something other than deep lung air.

Before and after two samples are taken from an individual's breath, the machine tests a dry gas control. Differences in the dry gas should indicate an improper test, Calesaric said.

In a March breath test for a Newark man, the machine was off by .013 for dry air, according to the subject test report. He was tested again 13 minutes later despite the discrepancy and cited for operating a vehicle while intoxicated.

Mary Martin, program administrator for the Bureau of Alcohol and Drug Testing, said she thought the department had removed a couple machines for similar issues.

"If it's out of range, we'll remove that instrument," Martin said.

The machine from the March test still was in use at the Ohio Highway Patrol as of June.

The Intoxilyzer 8000 also allows for a 20 percent difference between the two samples before rejecting the test. That means a .080 result could be between a .06 and .10 -- a 40 percent difference.

Martin said .02 was a difference accepted by national scientific research. Calesaric thought a .005 difference would be fair.

"If the machine is accurate, it's accurate. A 5 percent error rate is high enough," Calesaric said.

In addition to being portable, the Ohio Department of Heath touted the Intoxilyzer 8000's ability to transmit data electronically as one of its greatest benefits.

Agencies using the Intoxilyzer's predecessor, the BAC Datamaster, would record the results of each test and keep a log at the department, said Martin. Now, all data is transmitted to the Bureau of Alcohol and Drug Testing, where it aggregates reports in a searchable database on its website.

This will allow the state to target areas with a large number of operating a vehicle while intoxicated citations, said Martin, adding that no research has been started yet because not all machines have been distributed.

Defense attorneys are concerned data can be easily deleted and there is no policy in place to store records necessary for trial as required by Ohio Administrative Code, Calesaric said.

In result on the website, a tested listed a blood-alcohol content of 23 -- more than 38 times the lethal limit. It was removed from the website.

The CMI software allows anomalies, such as a 23 BAC, to be replaced with other data and thus hides "inconvenient information," Athens County Municipal Court Judge William A. Grim wrote. ODH switched software in May to alleviate any problem, Martin said.

"It was a software issue," Martin said.

Grim found that the disappearance of data was, at best, an indication the website is still a work in progress, and at worst, a manipulation to hide adverse information.

"If it is the purpose of ODH to have a comprehensive database, that purpose has not been achieved," Grim said.

Calesaric said no policy is in place to store these records. Martin said the department is required to keep them for three years but plans to store the information indefinitely.

"We have no plans to get rid of them," Martin said.

Another concern is how the machine operates around radio frequency interference from cell phones or Blackberries. Thomas Workman Jr., who has testified for defense attorneys as an Intoxilyzer 8000 expert, said interference might skew results from .09 to .20. Ward acknowledged interference from a Blackberry, but former Chief Toxicologist John Kucmanic found it "impractical" to test all frequencies of available smart phones.

CMI did testing that found cell phones do not interfere with the Intoxilyzer 8000, Martin said. A representative testified the company didn't test smartphones or PDAs.

Another vulnerability is the machine will detect more alcohol the longer a person breathes into it. The person should stop when the progress bar reaches 100 percent, but the sample is not collected until the person stops breathing.

Defense attorneys are concerned officers could manipulate the system to yield a higher blood-alcohol content sample.

"It's not consistent between each person," Calesaric said.

Inconsistent does not necessarily mean inaccurate, Martin said.

"You really can't blow higher than what's in your lungs," she said.

Local law enforcement said they hadn't had any problems with the Intoxilyzer 8000. Sassen said the arguments from defense attorneys are typical of any new technology.

"I don't think there are problems with it," Sassen said.

Martin said she trusts the extensive research the Ohio Department of Health did into the Intoxilyzer 8000 to determine its reliability.

"It has time and time again shown that it is reliable, it is accurate," Martin said.

Grim did find that the Intoxilyzer 8000 could be used to determine blood-alcohol content and have those findings accepted in court.

"There is no such thing as a perfect person, a perfect machine or a perfect computer operating system. All have limitations or vulnerabilities," Grim wrote.


http://www.newarkadvocate.com/article/20110703/NEWS01/107030301/Defense-attorneys-point-out-breath-test-flaws