A hot issue in Ohio appellate courts right now is the admissibility of the Intoxilyzer 8000—the breath alcohol test often used by Ohio police officers in determining whether a driver is over the limit.
Just last week, the 11th District Court of Appeals in Portage County ruled on the issue. The case is State v. Yanchar, 2013-Ohio-1296. This is what happened.
The defendant—Mr. Yanchar—was issued a traffic ticket, charging him with Operating a Vehicle While Under the Influence (OVI). He and his attorney filed a motion challenging the results of a breath test taken at the time of the citation, arguing that the Intoxilyzer 8000 is unreliable.
He asserted various specific challenges related to the test including that the test was not conducted in accordance with the certain administrative code provisions, that the machine was not properly calibrated, and that the machine operator was not properly qualified. He also raised challenges related to field sobriety testing and statements he made to the police.
The trial court in Portage County held a hearing on Mr. Yanchar’s motion. At the hearing, the prosecutor said that the issue of the Intoxilyzer 8000’s general reliability was being questioned and that he believed there was no requirement to prove the breath test machine’s reliability. Meanwhile, Mr. Yanchar argued that the court should suppress the breath test result. The Portage Municipal Court granted Yanchar’s motion and threw out the breath test results.
The prosecutor’s office appealed. On appeal, the prosecutor asked the Court to decide whether a trial court is required to accept the Intoxilyzer 8000 as reliable no matter what because it has been approved as an “evidential breath testing instrument” by the director of health.
The appeals court agreed more or less with the prosecutor’s office, finding that “an accused may not make a general attack upon the reliability and validity of the breath testing instrument.”
However, while a defendant can’t put on a general reliability attack, the prosecutor’s office still has to demonstrate when asked that the breath or blood sample was “analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit.”
There is no question that a defendant can “attack the reliability of the specific testing procedure and the qualifications of the operator,” as well as present “expert testimony as to testing procedures at trial going to weight rather than admissibility.”
In addition to attacks on the specific performance of a particular breath test in an individual defendant’s case, a defendant may also attack the reliability of the Intoxilyzer 8000 based on specific reasons, as opposed to general assertions that the State failed to prove its reliability.
As noted above, the defendant may always challenge the accuracy of his or her specific test results and otherwise strive to discredit the breath alcohol test, as well as attack the reliability of the Intoxilyzer 8000 based on specific reasons.
Interestingly, in a dissenting opinion, Judge Wright disagreed, arguing that the test should have been thrown out. He argues that the statute does not require admissibility of breath test results derived from the Intoxilyzer 8000.
Rather, the trial court should have discretion whether or not to admit the breath test – it shouldn’t be left up to an administrative agency. He points out that determination of the reliability of evidence necessarily implicates the defendant’s substantive due process rights, and shouldn’t be delegated to an administrative body.
This continues to be a hot issue in Ohio. We will continue to follow it closely as it moves through Ohio’s courts.