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Media > Newsletters > Law Enforcement Bulletin > September 2013 > OVI Tests (Intoxilyzer 8000): State of Ohio v. Lambert

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OVI Tests (Intoxilyzer 8000): State of Ohio v. Lambert

Questions: 1) Does the certification for the Intoxilyzer 8000 have to be done at the patrol station if it had been done prior to transport? 2) Do you have to do the Intoxilyzer 8000 dry gas control test after each breath test?
Quick Answers: 1) No, if the certification was done prior to transport to the patrol station and diagnostic tests were run on delivery, there has been compliance with the rules governing certification. 2) No, a dry control test is done before the subject’s first breath and after the second breath, but not in between.

State of Ohio v. Lambert¸ First Appellate District, Hamilton County, Aug. 21, 2013
Facts: After a traffic stop, Roger Lambert was taken to the Cincinnati Police District One post for a breath-alcohol test on the Intoxilyzer 8000. After OVI charges were filed, Lambert argued that the test should be thrown out because the dry gas control test was not tested prior to, and after, every subject test. He also argued that the instrument certification was not properly done because certification was made in Columbus and not when the instrument was placed at the post. When examining the instrument certification, the court looked to the language in Ohio Administrative Code (OAC) 3701-53-04(D) and found that the rule does not require the certification to be performed at the time of installation at a location. The court found it sufficient that when the instrument was taken to District One, diagnostic tests were run to make sure it was working properly. The court also determined that under OAC 3701-53-04(B), the instrument must automatically perform a dry gas control test before and after every subject test. The term “subject test” means a single test that is comprised of two different breath samples. As a result, the rule requires a dry gas control test before a person’s first breath sample and after the second breath sample, but not in between the two samples.
Importance: It is important to make sure the machines are working properly and used appropriately. If you are called to court to describe how you used the machine, make sure you are able to fully explain the steps you followed and how those steps are in compliance with law. In this case, both the officers and employees of the Ohio Department of Health testified. If a breath test is thrown out, make sure you have other evidence to back up your arrest. This includes a detailed report of your observations and results of the field tests.
Keep in Mind: On the same day the decision in this case was issued in Hamilton County, a judge in Marietta Municipal Court issued a ruling that the Intoxilyzer 8000 was unreliable in nine cases. With the recent media attention and difference of opinion by the courts in Ohio, be sure to document all other evidence leading to OVI arrests and charges. For this particular machine, the Ohio Department of Health can provide technical support, the operator’s manual, and training.
Here are links to news stories on these cases:

More on OVI Tests

You mean I can’t shorten the test? NHTSA Standards: There is no short version of the test recognized by the National Highway Traffic Safety Administration. The officer performed a “condensed” horizontal gaze nystagmus (HGN) test, finger dexterity test, and number count and alphabetic recitation while the individual was still seated in the vehicle. Even though the suspect failed the tests given, the court suppressed the results because the testing standards were not met. To perform the test properly, the suspect must exit the vehicle. Otherwise, the results of the test will be thrown out. Middleburg Heights v. Gettings, Eighth Appellate District, Berea Municipal Court, Aug. 15, 2013.