One in seven Ohioans has one – a life-long legal scar that has become the voodoo of our generation(s). According to the Ohio Department of Safety, more than 1.3 million licensed drivers in the state have at least one “DUI” conviction. This eye-opening number suggests far too many Ohioans are getting behind the wheel impaired.

But percolating through appeals courts across the state is a growing number of defendants who believe they limited their blood alcohol to a safe level. They’re challenging the state’s certified breathalyzer, the Intoxilyzer 8000, claiming it wrongly inflated their blood alcohol level or BAC.

Defense attorneys across the state say the Intoxilyzer 8000 is fundamentally flawed because its main function is based on bad science.

Several judges subsequently ruled in the defendants favor, calling the breathalyzer “unreliable,” which makes the line between illegally impaired and legally able to drive in Ohio (.08 of BAC) not so clear anymore.

No one has ever decried the need for tough tactics against drunk or buzzed driving. Last year, Ohio witnessed the most heinous of drunken driving tragedies when 36-year-old Shira Seymore slammed into an SUV in Ross County killing 36-year-old Annie Rooney, a successful lawyer in the prime of her life. Earlier that fateful day security cameras caught Seymore so drunk she could barely walk to her car from the bar.

Of the 1-million plus Ohioans with at least one DUI conviction, nearly 50,000 have five or more. Shira Seymore had been in seven crashes spanning the past 13 years and was convicted of traffic violations 16 times. She was arrested twice for driving impaired, but both were reduced to a lesser charge, as it appears Ross County let her slide – repeatedly.

Without question, Seymore and countless others like her have inspired law enforcement to take a militant-like approach to impaired driving.

Some close to the issue, namely defense attorneys, say the war against impaired driving was inspired by tragedy, but this righteous effort has also been hijacked by the state so to reap huge money in fines and federal traffic safety grants, used to finance DUI checkpoints, for instance.

Defense attorney Tim Huey of Columbus is a much-maligned champion and the last chance for those who have been arrested for DUI, especially if it is their first time. Most of Huey’s clients “didn’t go the wrong way on the freeway, and didn’t even know they were doing something illegal,” he says. The past president of the Ohio Association of Criminal Defense Attorneys wholeheartedly believes “everyone knows when they are drunk and should not be in a car.”

Huey believes the high number of OVI’s in the state is being padded by the Intoxilyzer 8000, which is used in 79 of the state’s 88 counties. And after the faulty machine convicts you, the punishment is usually too severe and the fines too costly. It all depends on how the county court a person was arrested in treats DUI offenders. Some counties are notoriously harsh, others more lenient. No matter what though, an OVI stays on your public criminal record, for life.

“Using a breathalyzer is a poor method at arriving at someone’s blood alcohol content. Can we convert the air in your breath to a blood alcohol level? In order to do this you have to make a huge number of assumptions,” he says. “And compared to getting arrested for cocaine or heroin, you have a better chance of going forward in your life and not having that (drug) conviction haunt you by virtue of the fact you can get treatment lieu of conviction and avoid conviction altogether, and you can get that offense expunged if you are convicted. You can never expunge a DUI.”

The state hasn’t officially called it a “DUI” since 1982 when this fourth-degree felony was re-named an “OVI,” or Operating a Vehicle Impaired. Perhaps the change is telling, as hundreds-of-thousands of dollars from federal traffic grants is also being spent to train dozens of officers statewide to be certified “Drug Recognition Experts” or DREs. They have the authority to make an OVI arrest if they believe the driver is impaired on their Cymbalta, for instance, which of course is a legal drug. Throw in the near-future possibility that recreational marijuana use in Ohio is legalized, and the number of OVI convictions could spike in the coming years on top of these already high numbers.

Drinking one or two beers can’t possibly get anyone arrested, but the Intoxilyzer 8000 cannot differentiate the breath from your lungs than from your mouth, where there’s a much higher concentration of alcohol. Thus the time a person takes to finish a drink and get behind wheel becomes a significant factor in whether “You just blew $10,000,” as the anti-OVI billboards state.

Not being able to tell whether it’s measuring breath from a mouth or breath from the lungs is not the least of the Intoxilyzer 8000’s issues. When the breathalyzer was invented, law enforcement came to the (imprecise) conclusion that the ratio of alcohol in a person’s breath to alcohol in their blood is 2,100 to 1, or that the alcohol content of 2,100 milliliters of exhaled air will be the same as for 1 milliliter of blood.

But trying to accurately measure such a ratio is almost impossible due to a host of factors, such as a person’s temperature and weight, says Huey.

“We know from a number of studies the difference between the two is different for different people, and different for the same person at different times, and dependent on both temperature and pressure,” he says. “If the machine thinks for every one part of alcohol in my breath there are 2,100 parts in my blood, and in reality I am only at 800 to 1, I’m getting killed. The machine is telling the police my BAC is three times its true level.”

The Ohio Department of Alcohol and Drug Testing decided upon the Intoxilyzer 8000 in 2009, purchasing 700 machines for $6.5 million. At the time the department was headed by Dean Ward, who took a job one year later with the Intoxilyzer 8000’s manufacturer, CMI Inc.

Revolving political doors are shady, no doubt, but the Intoxilyzer 8000 was under attack in Florida and Arizona with lawsuits long before the Ohio purchase, and soon enough defendants were challenging their breath tests in Ohio courts, as well.

This past August, Judge Teresa Liston, a former Franklin County judge, was asked by the Ohio Supreme Court to hear nine challenges against Intoxilyzer 8000 results filed from a place, Marietta Municipal Court. Huey said Judge Liston heard from expert witnesses on both sides of the issue, and made a ruling that could very-well remove the Intoxilyzer 8000 from Ohio for good.

After five days of testimony, Judge Liston ruled that results from the Intoxilyzer 8000 are “not scientifically reliable and the court, as a gatekeeper against unscientific evidence, must prohibit them from being introduced as evidence in this case.”

Such a ruling might inspire tens-of-thousands to appeal their DUI conviction, but not so fast, says Huey. In the case of the Intoxilyzer 8000, he says, your fundamental right of challenging bad science and bad engineering was taken away by the Ohio Supreme Court. Thirty years ago, the Ohio Supreme Court in State v. Vega ruled that once the Ohio Department of Heath certifies any breathalyzer it becomes “valid” or “perfect,” and the defendant loses the ability to argue the underlying science of the machine.

Huey says some defense attorneys across the state have made it their career mission to fight State vs. Vega.

“Ultimately, if the defense cannot challenge the reliability of the breath-test machine, both prior to trial and then at trial with a jury, I would tell you that every single DUI conviction in the state of Ohio has been tainted,” he says. “I’m not saying that everybody would be acquitted, but they’ve (breath tests) have all been tainted.” There are roughly 50 cases across the state challenging the accuracy of the Intoxilyzer 8000, says Huey, and several lower courts granted a defendant’s motion to suppress results of the controversial breathalyzer. But for each of these cases, prosecutors appealed the lower court’s decision, and these Courts of Appeals are sticking by the Vega decision.

Following the ruling made by Judge Liston regarding the cases from Marietta County, the Department of Health told the Columbus Dispatch, “Please be aware that 98 percent of the appellate rulings are in favor of the state and deem the I-8000 a reliable instrument. There are approximately 400 instruments currently deployed throughout the state. The Intoxilyzer 8000 was chosen for use in Ohio because of its proven performance, reliability and repeatability in extensive testing at the state and federal levels."

Franklin County, by the way, is one of nine Ohio counties that refused the Ohio Department of Health’s decision to use the Intoxilyzer 8000. Huey and other defense attorneys convinced the county the Intoxilyzer 8000 was not reliable. “Because of the fear of future litigation, they didn’t want it,” said Huey. The state is likely to appeal Judge Liston’s ruling, and the final decision on the Intoxilyzer 8000 is expected to be made by the Ohio Supreme Court.

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