Tulsa Attorney BlogOklahoma Supreme Court Throws Wrench in Intoxilyzer 8000 Breathalyzer

Intoxilyzer 8000 Oklahoma Supreme CourtA January 28, 2014, Oklahoma Supreme Court decision makes it difficult — if not impossible — for the state to continue revoking drivers licenses based on evidence provided by the current generation of breath analysis machinery.

Currently anyone arrested for DUI in Oklahoma who blows a .08 or more (or refuses to blow) has their drivers license suspended. The law on this has not changed, but this Oklahoma Supreme Court decision makes it much harder for the Oklahoma Department of Public Safety to prove that you blew a .08 or above.

The decision centers on Oklahoma law enforcements’ use and reliance on the CMI 8000 Intoxilyzer breathalyzer. This machine has replaced the Intoxilyzer 5000 for most police agencies in Oklahoma in recent years. On August 26, 2013, I noted that an Ohio judge determined the results of this particular breathalyzer were “not scientifically reliable” and I pondered whether that ruling was an anomaly or simply one of the first dominoes to fall for the Intoxilyzer 8000. (Read our post about the Ohio court decision here.)

The next domino has now fallen.

On January 28, 2014, the Oklahoma Supreme Court in Muratore v. State ex rel. Dept. of Public Safety, 2014 OK 3, affirmed a trial court’s determination that the police officer’s testimony and affidavit showing the driver blew a .11 on the Intoxilyzer 8000 was insufficient evidence for the State to meet its burden to suspend the drivers license, by a preponderance of the evidence. This decision was reached because the State failed to get any evidence into the record on the reliability of the Intoxilyzer 8000, after the Court excluded manufacturer’s certificates proffered by the State.

The State attempted to enter a Certificate of Calibration for the Intoxilyzer 8000, created by the manufacturer CMI, Inc., and a Certificate of Analysis created by ILMP Specialty Gases, a supplier of the gas canisters for the particular Intoxilyzer 8000. However, both documents were determined to be inadmissible hearsay and were excluded.

The State attempted to get around the hearsay challenge by using the public records exception and the business records exception, but the Oklahoma Supreme Court found that neither hearsay exception was applicable to this situation. The public records exception does not apply because the certificates were not created by a governmental agency. The business records exception was not applicable because the State did not bring any witness to court to lay a foundation that:

  1.  The records were made at or near the time by or from information transmitted by a person with knowledge;
  2. The records were kept in the course of a regularly conducted business activity;
  3. The records were made as the regular practice of that business activity to make the record; and
  4. No source information for the method or circumstances of preparation indicate lack of trustworthiness.

The State would have the court take as gospel any number that an Intoxilyzer 8000 spits out, but the Oklahoma Supreme Court held the State to its burden to show that the numbers are reliable. Although an administrative rule requires the Oklahoma Board of Tests for Alcohol and Drug Influence to implement maintenance procedures for the Intoxilyzer 8000, none have been promulgated as of yet.

So, the only evidence of the reliability of a particular Intoxilyzer 8000, is the calibration test performed by the manufacturer, probably prior to the machine going into use. Even if the State were to fly in a records custodian or the actual person with the manufacturer who performed the calibration (in order to get around hearsay rules) there would still be the problem of the testified reliability being too remote in time. For example, the calibration certificate in Muratore is dated three years prior to the driver blowing. With no maintenance procedures in place, how is one to assume that the machine is working properly now simply because the manufacture says it was working well three years ago.

The Oklahoma Supreme Court put it more eloquently:

“In driver’s license revocation proceedings before the District Court, DPS bears the burden of proving, among other things, that a valid breathalyzer test was performed on a properly maintained testing device. DPS can’t carry this burden when the Board of Tests has not implemented any rules governing the maintenance of the Intoxilyzer 8000.”

Impact in Criminal DUI Cases

Theoretically the decision in Muratore is equally applicable in criminal DUI cases. The rules of evidence in this civil case are the exact same rules that apply in criminal cases. If the certificates are inadmissible hearsay in a civil court the same analysis should be applied in a criminal case. However, in practice it is unlikely that the Oklahoma Court of Criminal Appeals will adopt the same holding.

Oklahoma’s appellate system is somewhat unique in that it is bifurcated. Rather than all appeals going up the chain to one high court, there is a different high court for criminal cases. The Oklahoma Supreme Court does not hear criminal appeals. The Oklahoma Court of Criminal Appeal is the highest Oklahoma court for criminal appeals. In recent years, there has been a divergence between Oklahoma’s two high courts on some issues with the Oklahoma Supreme Court typically taking the more liberal holding and the Oklahoma Court of Criminal Appeals making a more conservative decision.

The holding in Muratore will be highly persuasive for the Oklahoma Court of Criminal Appeals, but it will not be precedent that court is required to follow. The Muratore opinion already alludes to a red haring the Oklahoma Court of Criminal Appeals could utilize to reach an opposite decision.

Unlike in a civil case, a criminal case triggers the 6th Amendment right confront ones witnesses. This is similar to, but different from hearsay rules. It could be argued that admission of manufacture’s certificates without a witnesses appear does not violate the confrontation clause because the certificates are “non-testimonial.” This argument may prevail in a criminal case, but it shouldn’t. Confrontation is a protection in addition to the rules of evidence, not in the place of them. Even if confrontation is found not to apply, the rules of evidence (including hearsay rules) must be followed.

How the State is Going to Fix This

There are a couple ways the State could try to get around this issue. The first is have the legislature pass a law that these types of certificates are automatically admissible. The rules of evidence are statutory, so the legislature can change them, so long as the new law does not violate due process rights. These types specialized laws have been passed before to make prosecutors jobs easier (such as allowing child hearsay in abuse cases, or allowing lab and medical examiner reports in without cross-examination at preliminary hearings).

Second, the State could finally have the Oklahoma Board of Tests for Alcohol and Drug Influence implement maintenance procedures and handle regular calibration tests in house. If this is done, the public records exception to hearsay would fix it. However, there may technical problems with this solution because the manufacturer of the Intoxilyzer 8000, has resisted requests for the release of the programming code that the machine utilizes.

Approved Breathalyzers

The Oklahoma State Board of Chemical Tests for Alcohol Influence is charged with approving which breath-alcohol analyzers can be utilized in Oklahoma. The current list can be found here: http://www.ok.gov/bot/Breath_Testing/

But for Now…

For now the decision could call at least a temporary halt to administrative revocation of drivers licenses in Oklahoma and the same arguments should certainly be made in DUI cases until the Oklahoma Court of Criminal Appeals decides the issue.

The decision will not retroactively affect drivers license revocations, but could provide basis for district court appeals where the Department of Public Safety has revoked a license but a driver has not yet appealed the revocation to a district court. At least in the immediate future, the case could have a significant impact on drivers who are arrested for DUI in Oklahoma and face administrative revocation of driving privileges.

Free Consultation: Tulsa DUI Attorney

If you have been charged with driving under the influence or while intoxicated, you have a limited time to ask for a hearing to prevent your license from being revoked. Contact a Tulsa DUI attorney immediately to find out how the Oklahoma Supreme Court decision could affect your driving privileges. Call Wirth Law Office — Tulsa DUI attorney at 1 (918) 879-1681 or toll free at 1 (888) Wirth-Law. If you prefer written correspondence, you may submit a question through the form at the top right of this page.

Read the full text of Muratore v. State ex rel. Dept. of Public Safety (2014 OK 3) here.

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