As a , anytime a person comes into the office after having failed the breath test, I know that I will have to explain to them why the breath test machine can be unreliable and ways the case can be won despite the breath test results. While breath test evidence must be challenged, these results do not mean the case cannot be won in court. In this Blog, we will review a decision from Ohio finding the breath test machine unreliable.

A prominent trial judge in Ohio has just decided that the results of the Intoxilyzer 8000 “are not scientifically reliable.”

On August 14, 2013, in the matter of State v. Lancaster, Judge Teresa Liston concluded proceedings that lasted over the span of several months challenging the reliability of the Intoxilyzer 8000 in the Marietta Municipal Court in Ohio. Judge Liston, a well-respected retired judge, was called to the bench specifically to hear several cases combined by the court for the purposes of challenging the Intoxilyzer 8000 alone.

Throughout the hearings, both the State of Ohio and defense attorneys called several key witnesses to testify. For the State, a head engineer for the manufacturer, a prominent toxicologist, and the head of the state alcohol testing program, each took their turns testifying in support of the reliability of the results of the Intoxilyzer 8000. The defense team also called three top experts on toxicology and the Intoxilyzer 8000 device itself to challenge the reliability of the results of the machine as an adequate test of blood alcohol levels.

The court cited particular issues with the device leading to the conclusion that the test results are not scientifically reliable. Expert testimony proved problems in test results as a result of radio frequency interference, flaws in the design of the testing procedure, and the fact that the device is unable to adequately distinguish between actual alcoholic content in the lungs and breath from other substances in the body.

What makes this decision so critical is the fact that the defense team successfully overcame the heavy burden imposed on them by the court to defeat the presumption of reliability previously held by the Ohio courts. In other words, although courts are to act as “gatekeepers” of the type of admissible evidence, the tradition was to require the defendant to overcome a presumption that the devices utilized by the state are reliable. And the defense team in State v. Lancaster did just that, dealing a serious blow to the State attorney’s office in Ohio, which is likely to overflow to jurisdictions across the nation.

Because of Judge Liston’s strong reputation and the enormous amount of time and attention invested into these challenges to the Intoxilyzer 8000, Ohio defense attorneys expect her decision to have a powerful impact on OUI adjudication as state prosecutors will now be unable to admit test results from the Intoxilyzer 8000 as evidence against OUI defendants. Massachusetts lawyers should press for application of these findings in their own OUI cases, challenging the reliability of breath tests and potentially preventing them from being admitted into evidence against their clients.