Alcohol gauge has its critics lining up

The Columbus Dispatch

August 27, 2007

ALCOHOL GAUGE HAS ITS CRITICS LINING UP

State planning to buy 650 with federal grant

By James Nash

The Columbus Dispatch

Ohio health officials are moving forward with plans to replace the state's existing breath-alcohol testers with portable models, but lawyers and an Ohio State University expert say the new machines could be the ones under the influence - of cold, humidity and other vicissitudes of Ohio weather.

Armed with a $5 million federal grant, a panel studying breath-alcohol testing in Ohio has narrowed the field of devices to a single instrument: a portable tester that police can carry in their cars and use to test suspects anywhere.

Currently, suspected drunken drivers are brought to police stations for testing.

Despite the obvious appeal of in-the-field testing, several lawyers specializing in DUI cases and an OSU forensic toxicologist warn that the new machines could bring a flood of legal challenges.

The Ohio Department of Health is poised to buy about 650 blood-alcohol testers for use by the State Highway Patrol and local police and sheriffs.

The Intoxilyzer 8000, the only device under consideration, has drawn a legal challenge in Florida, which is complicated by the refusal of its manufacturer, Kentucky-based CMI Inc., to reveal details of the machine's operations. Earlier this month, a Florida judge ordered CMI to turn over the information or face penalties. The company, which contends the material is a trade secret, has not complied.

Several lawyers in Ohio said that if the state buys the Intoxilyzers, they expect a glut of challenges based on possible inaccuracy because of variables in temperature and humidity and radio interference. Drunken-driving suspects have challenged the machines in Arizona, Minnesota and other states with mixed results.

"If CMI ends up getting the contract, what I see is a lot of litigation," said Robert E. Calesaric, a Newark defense lawyer who specializes in drunken-driving cases. "We'll challenge the rule-making process whereby it came to be a recognized machine in Ohio. I don't think they're doing any testing on this machine."

Ohio Department of Health officials said the state Department of Natural Resources uses the Intoxilyzer 8000 to test boaters who may be drunk.

The machine will undergo a rigorous testing process before it's approved for use on land, Health Department spokesman Kristopher Weiss said. State health officials, however, are not asking CMI to turn over the detailed operating information that the Florida judge demanded.

"The laboratory and field evaluation of instruments address those environmental factors in ambient field conditions," Weiss wrote in response to written questions.

CMI officials declined to comment.

Most of the blood-alcohol testers currently in use in Ohio are manufactured by National Patent Analytical Systems Inc., a Mansfield company that competed with CMI for the new contract. National Patent did not meet the state's criteria for the portable instrument, Weiss said.

The National Patent machines rarely have been challenged and even more rarely have been found to be inaccurate, said Al Staubus, an OSU forensic toxicologist and expert in alcohol testing.

Suspected drivers must blow 1.5 liters of air into the National Patent device, compared with 1.1 liters into the Intoxilyzer 8000, which makes results from the latter machine less reliable, he said.

The results are complicated further by the variability of conditions in the field. Staubus said extremes in temperature and humidity could affect the test, although the Intoxilyzer machine is supposed to shut down when conditions would jeopardize its accuracy.

Still, Staubus said, CMI's unwillingness to share details of the machine's computer programming essentially forces DUI suspects and their attorneys to trust the results.

"The (Intoxilyzer) 8000 is a black box," he said. "There's no information on its source code. We don't know the machine's criteria to accept or reject a (breath) sample."

Weiss wrote that the Ohio Department of Health "cannot possess source codes of any instrument," although he did not elaborate.

He said the new machines will be a boon to local police, who now must shoulder the cost of purchasing and maintaining breath-alcohol testers that date back to 1988. Because the National Highway Traffic Safety Administration is footing the cost of the machines, the state will pay nothing.

"This is an opportunity for Ohio to obtain all new equipment (currently being used in other states) at no cost to Ohio," he wrote.