Monday, July 9, 2012, the 12th District Court of Appeals became the first Ohio appellate court to rule on the evidentiary admissibility of Intoxilyzer 8000 breath-testing results. In State v. Kormos (12 th Dist. 2012), 2012-Ohio-3128, defendant Nicholas Kormos contended that the Intoxilyzer 8000 fails to comply with relevant provisions of the Ohio Administrative Code, specifically, 3701-53-04(B), regarding calibration requirements for approved breath-testing machines.
Kormos argued that the Intoxilyzer 8000 does not, as required by .OA.C. 3701-53-04(B), conduct a dry gas control test be conducted prior to each "subject test." Kormos contended that law enforcement officers were conducting a dry gas control test and then requiring suspects to provide two breath samples for evidential testing and that the O.A.C. required a dry gas control test before each of the two samples. Clermont County Municipal Judge Kenneth Zuk agreed with Kormos' interpretation of the rules, finding that a "subject test" was done each time a person blew a breath sample into the machine, granting Kormos' Motion to Suppress the Intoxilyzer 8000 results.
In reversing the trial court's decision, the 12 th District held:
It is clear there is only one "subject test" per person breathalyzed, even if the test includes two incidents of blowing. As a result, we decline to interpret the code phrase that requires dry gas control tests "before and after every subject test" as requiring them "before and after every separate blow"***They are nothing more than consecutive breath samples taken during the same "subject test."
The turmoil in Ohio's courts regarding the use of Intoxilyzer 8000 evidence rages on, with most courts showing a clear preference towards upholding its use. It is only a matter of time before the opponents of the Intoxilyzer 8000 seize upon one of these cases to petition the Ohio Supreme Court for a ruling on the issue.
The experienced attorneys of DiCaudo, Pitchford & Yoder have extensive experience defending against OVI/DUI charges. If you have been charged with OVI/DUI in Ohio, a knowledgeable Criminal Attorney from DiCaudo, Pitchford & Yoder may be able to get your case dismissed. For legal advice or information, contact, the attorneys at DiCaudo, Pitchford & Yoder today.