In a unanimous opinion published yesterday, the Twelfth District Court of Appeals sided with the state and ruled that the results of a blood alcohol test performed by an Intoxilyzer 8000 may be admitted at trial against the defendant. Inย State v. Kormos,ย the Court reversed a municipal courtโs decision last year that held that the test was not performed properly, and therefore the results could not be admitted at trial because police did not follow rules propagated by the Ohio Department of Health.
At issue was the interpretation of the word โsubjectโ in section 3701-53-04(B) of the Ohio Administrative Code, which governs the operation of BAC testing machines. The section mandates that all machines โshall automatically perform a dry gas control test before and after every subject test.โ The trial court held that โsubjectโ referred to each breath sample, while the state argued that โsubjectโ referred to each defendant. Because the 8000 takes two breath samples from each individual, the trial courtโs finding would require โdry gas control tests before and after โSubject Test 1,โ and again before and after โSubject Test 2,โ for a total of four dry gas tests per person breathalyzed.โ Because the police did not perform four dry gas tests for the defendantโs test, the trial court threw out the results.
Needless to say, the Twelfth District has a different definition of the word โsubject.โย Looking to Websterโs Dictionary, the Court found โsubjectโ to mean โone that is placed under the authority, dominion, control, or influence of someone or something * * * an individual whose reactions or responses are studied * * *.โ According to the Court, because the โsubjectโ is the person being tested and not the breath sample, the police operating the 8000 were only required to perform half as many dry gas tests as the trial court believed, meaning they had actually been in full compliance with the Administrative Code.
While the decision inย Kormosย is obviously a win for the state, the war over the Intoxilyzer 8000 is not over. Just as in theย recent Cuyahoga County caseย that admitted test results done on the 8000, theย Kormosย decision did not address the general reliability of the 8000. That issue is likely to be decided as early as this year, when the Eleventh District is likely to examine a Painesville Municipal Courtโsย rulingย that the Intoxilyzer 8000 โis a new device that does not appear to have been shown to be accurate and reliable in the courts in Ohio.โ
Until more appellate courts take up these cases and hand down their rulings, the issues surrounding the reliability of the 8000 and the admissibility of its results are far from settled and are ripe for challenge.
