The Ohio Administrative Code establishes the requirements for the breath testing program in Ohio and states clearly what regulations must be followed for breath test to be used as evidence against someone accused of a DUI or other DUI related crime. To get right to the point of this post, OAC 3701-53-04(B) states that “Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall automatically perform a dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) before and after every subject test.” The machine that this regulation applies to is the highly questionable Intoxilyzer 8000. What makes the machine even more problematic is the State’s decision not to comply with this code section. I am not conceding that the State ever truly complied with this section, but the State certainly does not comply currently.
Prior to recent years, the Ohio Department of Health purchased its dry gas supply from ILMO Specialty Gases. ILMO alleged on their Certificate of Analysis that the company used “NIST Standard Reference Material, Certification of NTRM Batch No. XXXXXX, Nominal 210 µmol/mol Ethanol in Nitrogen for ILMO Products Co., Jacksonville, IL”
More recently, the ODH has chosen to purchase its dry gas supply from DRYGAZ by CALGAZ. No reason for the switch has been given, but ILMO is still in business and providing the same products. On the DRYGAZ Certificate of Analysis, the supplier does not even claim the gas to be NIST traceable. Instead, the supplier states it uses “N.M.I. Traceable Standards, Certification traceable to National Metrology Institute Traceable Standards.” While they make some reference to NIST with regard to weights, the certification makes clear that it is using “NMI Traceable Standards” on multiple occasions for all analytical purposes. Presumably realizing this to be a problem, the certification attempts to remedy the issue by alleging “NMI is recognized by NIST through the Mutual Recognition Agreement (CIPM MRA).”
This statement acknowledges that the alleged entity “NMI” is not NIST. Traceability is a serious topic to scientists and should be a serious topic for lawyers and judges where, as in this scenario, the breath machine creates one of the only actual presumptions of guilt rather than a presumption of innocence in our American legal system. The term “traceability” is a very specific term of art in the science of measurement known as Metrology. NIST has issued policy statements on what it means for a measurement to be “traceable” and the definition is widely accepted and relied upon in many fields. The NIST policy states in part that, NIST adopts for its own use and recommends for use by others the definition of metrological traceability provided in the most recent version of the International Vocabulary of Metrology: "property of a measurement result whereby the result can be related to a reference through a documented unbroken chain of calibrations, each contributing to the measurement uncertainty." (International Vocabulary of Metrology - Basic and General concepts and Associated Terms (VIM), definition 2.41, see Reference ). This national policy is crucial to the concept of traceability and to the determination of whether a breath test complies with the Ohio Administrative Code.
It is important for anyone addressing this issue to actually review the CIPM MRA. This document lists each country and its governmental body that acts as the country’s National Metrology Institute. The Certificate of Analysis provided in discovery in the State of Ohio fails to identify which NMI standards the supplier is using and, to be clear, no country’s abbreviation for their National Metrology Institute is actually NMI. It appears as though the ODH is slipping by on purchasing its dry gas cylinders from a new company that does not claim traceability to NIST presumably to save money. Absent evidence to the contrary, it is a reasonable conclusion that a dry gas solution can be more cheaply produced and sold if the components are not strictly traceable to NIST as required by the Ohio Administrative Code.
Attorney Joseph Hada