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When a Signed Waiver of Counsel May Not Be Sufficient to Enhance an OVI to a Felony With felony OVI arrests on the rise, practitioners need to look in depth at each client’s prior OVI convictions to…

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Two Strikes and You’re Out! Commercial Driver’s License and a second-offense OVI = Disqualification for life The intersection of Commercial Driver’s License (CDL) law and…

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Getting Up to Speed on the Intoxilyzer 8000

Date:May 21, 2012 Posted By: James Publishing

The Intoxilyzer 8000 (“8000”) breath testing machine has been slowly rolling out across the state, and is being implemented in police departments near you, as the latest and greatest tool in combating OVI offenders. It has most recently begun to be implemented in Montgomery County.

Because this machine is based on different technology than previous versions of the Intoxilyzer 5000 and the BAC Data Master, there will be many questions and challenges to this new machine. This article is meant to be a condensed guide to finding some of the most recent information available on the 8000; thus website references are provided to direct you to more detailed information on the 8000.

The 8000 is manufactured by CMI, based in Owensboro, KY. Over 700 of the 8000’s were purchased by the State of Department of Health (“ODH”), Bureau of Alcohol and Drug Testing (“BADT”), under its previous director, Dean Ward. Ward retired from ODH just over a year ago, and now works for CMI in Kentucky.[1]

The 8000 is implemented and maintained by the ODH BADT. Its current director is Mary Martin, Esq., and she testifies across the state on matters pertaining to the 8000, including: calibration, reliability, testing, and certification of operators.

The ODH BADT website provides forms that are available for public download, including: the 8000 Study Guide, 8000 Proficiency Manual, and Calibration Solution Certificates.

In Montgomery County, the 8000 is being utilized by the following agencies: West Milton Police, Centerville Police, Union Police, and the post of the Highway Patrol. In Greene County, the 8000 is being used by the Xenia post of the Highway Patrol, Sugarcreek Twp. Police, Fairborn Police, Greene County Sheriff’s Office, Jamestown Police, and Beavercreek Police. The 8000 is also in heavy use in Miami, Warren and Butler counties; but it has not been implemented in Clark and Champaign counties, yet.

The benefit and downfall of the 8000 is that the data and BAC results from each of the 8000’s can be found online. A search for 8000 data can be performed using any single variable of data from an OVI arrest, including: defendant’s name, date range, arresting officer name, breath test operator name, instrument serial number, agency name, court; or violation details, such as the street, city, or county. Thus, the BADT search engine makes it easy to find a breath test by any single variable of data.

Use of the 8000 has been litigated extensively across the country, including in the states of Florida, Minnesota, Kansas, and Arizona, just to name a few. Many of the complaints and challenges revolve around CMI’s persistent failure to provide the source code (blue print of how it works), to either the Prosecution or the Defense. And CMI has regularly failed to appear, even under subpoena, to testify and/or produce the source code. That has inevitably resulted in thousands of cases being dismissed and/or reduced. Moreover, the State of Tennessee refused to approve the 8000 for statewide use, after extensive testing.

Because of the 8000’s relative infancy, the three written decisions known to this author include:

 

State v. Kitzler, supra, is the only appellate decision on the 8000; and it covers a very narrow and peripheral issue on 8000, which is not likely to be repeated very often.

State v. Gerome, supra, and State v. Reid, supra, both give detailed analysis on the 8000, including: its history, science, and evidentiary challenges across the country. Because of the decisions in Gerome and Reid, the Supreme Court will undoubtedly be asked to re-examine its decision in State, one way or another (likely via a certified conflict at some point).

On the horizon, the 8000 will be embattled in litigation involving its: certification, science, source code, expert witness testimony—both for and against the 8000, defense challenges at trial, and the validity and applicability of State v. Vega, supra.

The result is that an OVI practitioner must now become conversant on topics such as: the differences in Infrared Spectroscopy, air blanks, dry gas, pulsed light sources, pyroelectric detectors vs. lead selenide detectors, impact of smaller sample chambers, and the impact of less precise airflow measuring pressure devices. I thought we went to law school!?

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Trial Strategy
Client Testimony
Cross-Examination of the Arresting Officer on Field Sobriety Tests
Closing Arguments
Frequently Asked Questions