Me neither. So this is interesting. I recently had an OVI case North of Dayton. For my readers, you know an OVI is the same as a DUI. And you also know that I tend to travel a bit all over Southwest Ohio fighting DUI cases.
On this case, I did my usual thing requesting the evidence. This was a breath test case and along with the regular police reports and paperwork came something unexpected. I received two pages with graphs on them titled Breath Profile. After doing a double-take I looked closer. It matched up with my client’s Subject Test Result page. That is the form that prints out of the machine that we are all familiar with showing the test result among other things. These graphs however, revealed some new information I have never seen before.
They revealed the BrAC or Breath Alcohol in grams/210 liters of breath on the left column, Time in seconds across the bottom, and Flow Rate in liters/second. Now I asked a few colleagues about this and confirmed that they have not seen it before either. My colleagues responded with assurances that I could not be seeing this from an I-8000 machine. Some said that I might be looking at the Intoxilyzer 9000. One even went so far as to speculate that I made it up and it looked like I copied something from a manual somewhere.
Now, in their defense, the pictures I posted were exactly as I had received them… they were in the negative. This also helped to draw my attention to them in the first place. I eventually got them to send me the regular versions. I knew they existed when I called the prosecutor because I had watched it print out of the stand alone printer next to the machine when I watched the officer’s body cam video.
The video I have clearly shows the front of the machine and it says “Intoxilyzer 8000” on the front of it. Not finding any more info from my colleagues in Ohio I reached out to the Ohio Department of Health Alcohol and Drug Testing Division that maintains the records for more info. They replied by sending me a few pages listing all the software updates for the machine. It was called the Ohio Software Set 8149.xx.
The first version was dated (3/27/09) and titled 8149.07.00. The most recent update was on (09/29/2011) titled 8149.11.00. Everyone that has been following the 8000 cases in Ohio remembers the update titled 8149.11.00 (09/29/2011) that changed “Subject Test” to “Subject Sample.” The most notable of the updates I found was on (9/27/2010) titled 8149.09.00 that reads in part:
…For a successful subject test, print the following forms (per copy) :
+ 2x Subject Test
+ 2x ALS
+ lx Impaired Driver
– Leave SSN field blank on all forms except BMV/ALS form 2255.
– Display message, beep, and exit recall function if ‘there are no records.
– Don’t print test report if reprinting single forms.
-Add profiling feature (alcohol and flow curves) for breath tests, air blanks,
and cal checks… [Emphasis Added.]
I followed this up with a conversation involving a few people who used to work with these machines and they verified that they have been doing this for awhile and no one can figure out why these few machines in this area of Ohio are printing these graphs. I have heard from my colleagues that they have testimony to the effect that these machines are not supposed to be able to do this. I was recently at a continuing education seminar in Las Vegas and met a few DUI lawyers from Florida that were very interested in the graphs as they have been told the same thing and now there is proof to the contrary.
The Intoxilyzer 8000 machines in Ohio are indeed capable of recording breath profile data. In fact, if would seem from the software updates that this was in deed by design. It does not look like they intended all the machines to print the breath profile graphs or I would have expected it to be listed with the other forms that they say should be printed just above like subject test, ALS and Impaired Driver Report. If they did not intend the breath profile graphs to be printed I think it might be even more damning because the only other reason to add that function to a software update would lead a reasonable person to conclude that the machine is recording the data internally.
A reasonable person might also conclude that since they wanted it recorded, that they are intending that the data be transmitted over the L.E.A.D.S. line and saved into the C.O.B.R.A. database. One might further conclude that they would only do this if they were capable of analyzing it in the form of a visual graph. My fellow DUI defense attorneys that have been keeping up with the 8000 over the years and have fought these cases with testimony under oath recall that Department of Health officials told us that when they redacted Sample Attempts and Breath Volume data from the Subject Test Form available online that it could not be changed back, and even if it could be, would cost so much money and time as to render the task impossible.
I recall one of these very cases and, in fact, the data on the online forms available on the Ohio Department of Health database was changed back in a matter of weeks. As to what conclusions the experts can use these graphs for is still up in the air. However, on a final practical note, if the machines in Ohio are generating this data, and they are at least storing it for a week or two before it is uploaded to the database, and the defense attorneys are filing notices to preserve the evidence, and the state is maintaining that the machine is overwriting the data with no backup, then an argument exists that the state is destroying evidence and may lay the foundation for dismissal or suppression of a breath test. If they actually do have the data, they clearly have the means to make it into a printable graph, and they are simply not disclosing the information, then the argument exists to compel the data and graphs.
If the state makes no effort to produce the graphs, then an argument exists to ask the court to sanction the state and suppress the breath test result from evidence in your case. Whether they have it or not, it appears the state has once again put themselves in an unwinnable position with the 8000.