Light at the End of the Tunnel in Ohio?

Legality of using OVI test device being questioned

Law director halts Intoxilyzer 8000 use while courts debate its accuracy

NEWARK -- Newark Law Director Doug Sassen advised local law enforcement Monday to cease use of the Intoxilyzer 8000 breath test while courts debate its reliability.

Sassen told the Ohio Highway Patrol, Licking County Sheriff's Office and Newark, Granville, Reynoldsburg and Heath police to use urine tests whenever possible, but BAC Datamaster breath tests could be employed. Pataskala police had not started using the Intoxilyzer 8000, Lt. Michael Boals said.

"Urine tests are a very reliable form of chemical testing and should not pose any cumbersome procedural issues," Sassen wrote.

He emphasized he didn't think there were any problems with the Intoxilyzer 8000, but it had not been tested in the courts and he didn't want to duplicate legal issues debated elsewhere.

"We still have the Datamaster, which has been reliable in the state for 30 years," Sassen said. "I can't think of a downside of waiting this out."

Sassen, like attorneys statewide, is watching a case in Athens County Municipal Court. On Wednesday, Judge William A. Grim opened the door for defense attorneys to attack errors with individual tests but found the machine could be used to obtain an accurate blood-alcohol content.

"It's a narrower reading of State v. Vega," Newark defense attorney Rob Calesaric said.

Prosecutors and judges across Ohio had interpreted State v. Vega, a 1984 state supreme court case, to mean the general reliability of a breath-alcohol testing device cannot be challenged after it is approved by the Ohio Department of Health.

"Vega has been good law in the state of Ohio for some time," Sassen said.

But defense attorneys argue the ruling prevents individuals accused of drunken driving from facing their accuser -- the machine, Calesaric said.

For Grim, the legislative branch took power from the court by allowing the Ohio Department of Health to OK breath-alcohol testing machines.

"It is a core function of the judiciary to determine the admissibility of evidence," Grim wrote.

His decision Wednesday won't change the way Licking County prosecutors look at operating a vehicle while intoxicated cases until an appellate court reviews the logic, Sassen said.

Because Athens County is in a different appellate district, Licking County would not be required to change until after an Ohio Supreme Court decision.

Licking County has not had a suppression hearing or trial for an Intoxilyzer 8000-tested OVI, Sassen said. One of Calesaric's clients has a suppression hearing set for July 14.

Those already convicted of operating a vehicle while intoxicated based on an Intoxilyzer 8000 have little recourse, Calesaric said.

"It's very difficult to withdraw a no contest or guilty plea," Calesaric said.


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