Inadmissibility of Intoxilyzer Results Without Scientific Foundation
by: Rjohnson • April 19, 2011 • no comments
I spoke on this topic at the OCDLA annual conference a few years ago, so if you saw that presentation I don't have much to add. But I just had a hearing in which the judge seemed at least tentatively interested in the issue. If he issues an interesting or favorable ruling, I'll be sure to report on it.
Here's the issue in a nutshell: The Intoxilyzer is the only scientific evidence that I know of that can be admitted without a foundation. In State v. O'Key, 321 Or 285, 899 P2d 663 (1995), the court observed that, in the case of legislative recognition, there was no further need for the court to determine scientific reliability. O'Key, 321 Or at 293. As far as the evidence code goes, that makes sense; the legislature can do whatever it likes with the evidence code. But the scientific-evidence rules from cases such as O'Key and Daubert v. Merrell Dow Pharms., 509 US 579, 113 S Ct 2786, 125 L Ed 2d 469 (1993) talk about the importance of providing juries with reliable scientific evidence. That's not just an evidence rule; it's part of the constellation of rights to a fair trial.
ORS 813.160 says that the Oregon State Police can determine the validity of breath-testing machines. I'm not sure that's a valid delegation of legislative power. See Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 902 P2d 1143 (1995) (on delegation of powers) and State v. Atkinson, 298 Or 1, 688 P2d 832 (1984) (requiring that inventory policies be adopted by legislative, rather than executive, bodies).
Finally, the workings of the Intoxilyzer machine are a closely-guarded secret. The machine is not available on the open market because the manufacturer only sells to law enforcement. They have never released the source codes or schematics, in spite of occasional court orders that they do so. I suspect that, as a matter of fact, it works reasonably well in most cases. But I doubt that it is particularly accurate, and I don't know if there are specific factors that make it unreliable in particular cases. I don't think that the manufacturer cares especially about reliability; I think they care about sales.
So, I don't buy that the legislature can render junk science admissible by fiat, and, even if the legislature can do so, I don't think they can delegate the power to the state police. Without ORS 813.160, the intoxilyzer is admissible only with a foundation. A foundation which would be very difficult for the state to lay since the manufacturer isn't letting go of the necessary evidence, assuming such evidence even exists.
In arguing about this issue, I have sought the source codes and schematic diagrams for the Intoxilyzer, the contract between the state and the manufacturer or distributor, and the validation studies used by the Oregon State Police. I have sought to exclude the test result without a scientific foundation, and I have asked for an instruction that the jury has to decide the test result is reliable before relying on it. Courts have not been receptive, but the Court of Appeals has not yet weighed in. (With luck, we'll have a decision within the next year.)
I just argued the discovery/subpoena motions. The judge has not yet ruled, but he was interested, especially in the request for the contract between the state and the manufacturer. I'm glad to provide my briefs and motions to OCDLA members and other criminal defense attorneys.
