Marietta may appeal ruling in OVI cases

Breathalyzer results tossed in court ruling

MARIETTA – The Marietta City Law Director’s Office is considering appealing a recent ruling by an Ohio Supreme Court appointed judge that affected a handful of local drunken driving cases.

In a ruling handed down Thursday, Visiting Judge Teresa Liston-a retired Franklin County Municipal Court Judge- found that blood alcohol content (BAC) readings taken on Intoxilyzer 8000 machines by the Marietta Police Department, the Ohio State Highway Patrol, and Belpre Police Department were inadmissible in nine cases where they had been used and challenged.

Marietta attorney Dennis Sipe started the initial motion to suppress the findings of the local I-8000 machines due to reliability issues with the machine.

“I’m very pleased,” Sipe said of the ruling. “There were a lot of issues reported.”

The I-8000s were approved for use by the Ohio Department of Health in 2008 and issued to departments free of charge in 2010. But the machines’ reliability has been questioned from the start, prompting the Ohio Supreme Court to authorize local municipal courts to decide on the I-8000’s admissibility for themselves.

Sipe said one of the arguments against using the device was that there was great disparity in the two required readings taken from the same person on many occasions.

The decision does not affect department’s current operating procedures as they all reverted back to using the older BAC Datamaster breath machines after the reliability of the I-8000’s first came into question.

“For years experts have been saying it couldn’t happen that way in four minutes-it just couldn’t happen,” he said.

As challenges arose they began looking at the nuts and bolts of how it was made and the science behind it, Sipe said

“The science was even dubious with the way this machine operates,” he said.

Specifically Liston cited three concerns raised by the defense when handing down her decision-whether the machines have been tested to address radio frequency interference from devices such as smart phones, whether the machines are subject to operator manipulation, and whether the machines fail to filter substances similar to ethanol out of breath samples.

However, Liston noted that her decision only affected the nine defense cases listed in the ruling.

“Due to ongoing software changes and with additional research and testing, this decision does not preclude the possibility that the I-8000 could, with modifications, meet the standard of reliability necessary for its admission in future cases,” she wrote.

Liston heard and ruled in favor of the I-8000 in another county, said Assistant City of Marietta Law Director Daniel Everson.

However, the notable difference in that case was that the defense presented no evidence.

“In that case, she did not suppress the (I-8000) test results hearing only state witnesses,” he noted.

The city is in the early stages of considering an appeal, but until the I-8000’s have a favorable ruling, local law enforcement agencies will be instructed to continue using their old breathalyzer models, predicted Everson.

Thursday’s ruling will not change any procedures for local departments who possess an I-8000, all of which reverted back to using the older BAC Datamaster breathalyzer machines as soon as the I-8000’s reliability was first brought into question locally.

“We’re using the Datamaster and it’s a pretty reliable piece of machinery. We’ve had it for over 20 years,” said Marietta Police Chief Brett McKitrick.

However, there is some concern that certification on the old BAC Datamasters is becoming harder to obtain, and that the Ohio Department of Health will eventually phase out the older machine, he added.

“It used to be they sent a testing administrator to the department three times a year. Now you’re lucky to get one once or twice a year at your department and sometimes you have to travel to other departments,” said McKitrick.

Everyone who uses the machine is required to undergo yearly certification for it, he added.

Phasing out the BAC Datamaster would not likely happen until the I-8000s have been approved statewide, said McKitrick.

So far, 98 percent of local municipalities have ruled in favor of the state and the reliability of the I-8000, noted Ohio Department of Health spokesman Robert Jennings.

Kate York contributed to this story.