One in seven Ohioans with a driver’s license has at least 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 are 50 or so cases where defendants believed 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.
So far, defense attorneys interviewed say these challenges to the Intoxilyzer 8000 are essentially locked together in a struggle to the finish. Some courts are upholding the machine as reliable; other courts say the opposite.
Leading this backlash is a young man from Cincinnati, Daniel Ilg, and his Cincinnati defense attorney, Steven Adams. Ilg was charged with Operating a Vehicle Impaired (OVI) in 2011 and has fought ever since to have his breathalyzer result excluded from evidence. They’re arguing the Intoxilyzer 8000 used to test Ilg was not giving accurate readings because the machine had once been loaded with the wrong software, among other issues.
Hamilton County Municipal Court ruled for Ilg, ordering his breath test to be thrown out. The trial court’s ruling was mostly based on what the city and state refused to do after Adams filed a subpoena for a trove of data and documents relevant to the Intoxilyzer 8000. They declined to hand over a database referred to as the “COBRA.”
Better known as the “Computerized Online Breath Archives Data,” it is a data hub linked to all the state’s Intoxilyzer 8000s. It can be programmed to record an unlimited number of data options, such as the name of arrested, their weight, height, how many samples or breath attempts were made and any error messages the Intoxilyzer 8000 may report. The city and state denied the COBRA archives by citing a controversial state law forbidding a defendant from challenging the reliability of any state-certified breathalyzer.
The city of Cincinnati appealed the trial court’s ruling, but the decision was affirmed by appeals courts. Now Cincinnati vs. IIg is headed to the Ohio Supreme Court, as initial hearings are scheduled for this month.
Both city and state officials have suggested Ilg is attempting a fishing expedition. On the night of his arrest, the then 19-year-old veered off the road, hitting a fence, a city sign and a utility pole. Police at the scene smelled alcohol on Ilg and he blew a .143 blood alcohol level, well over the legal limit of .08. He’s desperately trying to keep his criminal record pristine, said a state official familiar with the case, considering a DUI conviction can never be expunged from anyone’s record.
Nonetheless, even if Ilg’s case hasn’t reached litigation yet, the case has quietly shed light on what some have likened to a “DUI industry.” An industry that keeps hundreds of defense attorneys and privately run driver intervention programs (or DIPs) rich and eager for more. Local governments, police departments and the Ohio State Highway Patrol also reap millions in federal grants from the National Highway Traffic Safety Administration by meeting OVI arrest and conviction quotas, defense attorneys claim. What’s more, tens-of-thousands of OVI offenders a year pay hefty fines and license reinstatement fees to the Bureau of Motor Vehicles (BMV).
Indeed, the Ohio BMV forwarded to CityBeat a breakdown of its fiscal year 2013 “OVI Reinstatement Fee Revenue.” There are eight different fines collected by the BMV, and all or some have to be paid by the OVI offender to regain their driver’s license. The fines range from the “Statewide Treatment and Prevention Fee” ($112.50) to a fee supporting D.A.R.E ($75). The total amount collected for 2013 was $21 million.
The number of Ohio DUI convictions could spike even higher as the state has trained 94 officers to be certified “Drug Recognition Experts” or DREs, according to the Ohio State Highway Patrol. DREs have the authority to make an OVI arrest if they believe the driver is impaired on Cymbalta, for instance, which of course is a legal drug, or marijuana, which very well could become legalized in Ohio in the near future.
But without question, Adams says, the current breathalyzer used by the state — the Intoxilyzer 8000 — is helping to pad the state’s conviction numbers and its coffers. Don’t scoff, because Adams was a Hamilton County prosecutor from 1991 to 1999 and for two years prosecuted nothing but OVI’s.
“Most of them (1.3 million Ohioans with at least one DUI conviction), were probably done on a bad machine if they blew, and many pleaded out because they couldn’t find a good lawyer to properly represent them,” he says. “If you take the breathalyzer out of the equation, you get a crime of opinion. And it’s only one opinion — the opinion of a biased cop.
They know that part of their job and income is to make DUI arrests. They make an arrest based upon probable cause standard, not proof beyond a reasonable doubt.”
In 2009, one of the highest-paid city cops was an officer who made a high number of OVI arrests and spent many hours in overtime testifying during the OVI trials. His base salary was roughly $50,000 that year, says Adams, but he ended up making an estimated $100,000 in overtime.
“Do I think there’s abuse out there? Absolutely,” Adams says. “Do I feel there are some people who drink too much and drive and need to be off the streets? Yes. But do I think this Ohio DUI prosecution system gets abused? Absolutely.”
Adams and other defense attorneys interviewed for this story want to make it clear that no one is decrying 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.
According to the Ohio State Highway Patrol, OVI-related crashes accounted for 33 percent of all fatal crashes in Ohio for 2013, down from an average of 43 percent from 2010-2012, and OVI arrests are up from 2013 levels.
“Troopers are continually being updated and trained on OVI practices and procedures to better present cases to the various courts across the state,” says Sgt. Vincent Shirey of the Ohio State Highway Patrol.
Of the 1.3 million Ohioans with at least one DUI conviction, nearly 50,000 have five or more. 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.
Whether you can get your DUI reduced to, say, a Reckless Operation depends on who arrested you (state cop or city cop) and where. Some counties and cities are notoriously harsh, others more lenient. No matter what, though, an OVI conviction stays on your public criminal record for life, while a crack cocaine or heroin conviction can be expunged.
When it comes to Cincinnati, an OVI offender does not have a choice — the city refuses to reduce OVIs, period. But if pulled over outside city borders in Hamilton County, you may have a chance, as the county has a policy of potentially reducing the OVI for first-time offenders.
Adams believes the city’s “no plea” policy toward OVIs is another example of government being interested in more than just keeping citizens safe from impaired drivers.
“I believe they’re doing this to pad their stats, appease MADD (Mothers Against Drunk Driving) and make it look like they’re the toughest, roughest DUI prosecutors in the state,” he says. “Prosecutors are supposed to do justice, not pad stat books.”
The Intoxilyzer 8000 is coming under fire not just in Ohio but also in Florida and Arizona and was banned altogether by Pennsylvania state police in 2013. Coincidently, not long after Adams filed the Ilg case, the Cincinnati prosecutor’s office also banned the 8000 and went back to using the Intoxilyzer 5000.
According to Cincinnati Chief Deputy Prosecutor Charlie Rubenstein, the Ilg case was just one of many that influenced their decision to pull the plug, but the other cases were either dismissed or lost in appeal.
“We had so many cases in the pipeline that it became a feeding frenzy for defense lawyers,” Rubenstein says. “Either cases were getting appealed (by OVI suspects) or we were the appellant when a judge would suppress a test. It didn’t make sense to use all the resources to fight for one specific instrument when we had one (Intoxilyzer 5000) that worked fine.”
Adams says the Intoxilyzer 5000 and 8000 are manufactured by the same company, CMI Inc. of Kentucky, and the 5000 possibly has more issues and faults than the 8000.
“It’s just as bad or worse than the 8000,” Adams says.
And there’s the imperfection of any DUI prosecution — no matter how you test for blood alcohol level or BAC, there’s no exact science, there’s no perfect measure, says Columbus-based defense attorney Tim Huey, a past president of the Ohio Association of Criminal Defense Attorneys.
“Using a breathalyzer is a poor method for 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,” says Huey, who adds that many of his clients “didn’t even know they were doing something illegal.”
Drinking one or two beers can’t possibly get anyone arrested, but the Intoxilyzer 8000 cannot differentiate the breath from your lungs to breath from your mouth, where there’s a much higher concentration of alcohol, Huey says. 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, Huey says. 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, he says.
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, he says.
“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 CMI Inc., the Intoxilyzer 8000’s manufacturer.
The damage done by this one revolving political door could be awesome in scope if the Ohio Supreme Court were to rule that even a small percentage of past Intoxilyzer 8000 tests should be thrown out. This is perhaps one reason why the Ohio Supreme Court quietly tested the Intoxilyer 8000’s reliability in a court of law this past August, foreshadowing things-to-come for Cincinnati vs. Ilg.
Judge Teresa Liston, a former Franklin County judge, was asked by the Ohio Supreme Court to hear a consolidated case where nine residents of Washington County are challenging their Intoxilyzer 8000 test. 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 past DUI conviction — but not so fast, Huey says. The fundamental right of challenging the bad science and bad engineering of any breathalyzer was taken away 30 years ago by the Ohio Supreme Court. In 1984, the court ruled in State v. Vega that once the Ohio Department of Heath certifies any breathalyzer, it becomes “perfect” and any defendant loses the ability to argue the against the machine’s reliability.
As Adams and other defense lawyers have stressed time and time again, these breathalyzers are far from perfect. This is why they wanted the COBRA data, Adams says, because this data hub is constantly being updated by the machines themselves, telling the state how they’re functioning, such as whether the machine’s software is running properly or if the machine was calibrated correctly before testing a suspect.
Adams believes it’s possible the machine Ilg was tested on had been sending error messages to the state, thus letting the state know it was not functioning properly.
“The purpose of having all this information and collecting all this data is to establish a complete working history of the device so we can see areas that are potential sources of error and troubleshooting,” says Adams, who asks, “What do you have to hide?”
City attorneys and state officials countered that subpoenaing COBRA data “went beyond the scope of what was relevant” and “not material to a prosecution of an OVI,” while retrieving the data would also cost $100,000 and six to eight months to prepare. The trial court’s order to reveal the data also “ran afoul” of State vs. Vega, added city attorneys.
Adams, the former city prosecutor, says Cincinnati vs Ilg could change the Vega law. If anything, the cases against the Intoxilyzer 8000 tell the state that all defendants should at least have a chance in a court of law.
“Do it scientifically and be completely transparent about it (DUI prosecution),” Adams says. “So the citizen gets their fairness from the system.” ©