In the nine months since state officials unveiled a new device hailed as a potent new weapon against drunken driving, the equipment has been used rarely and only in a few rural and suburban pockets of Ohio.

A federal grant provided $7 million to buy 710 portable breath testers in December 2008 despite warnings from attorneys, local judges and some scientists that the machines were unreliable and vulnerable to legal challenges.

The Intoxilyzer 8000 made its debut in Clermont County in May. Since then, the instrument has been used just 1,116 times, in five counties that, combined, have only 3 percent of Ohio's population. Officials could not say how many drunken-driving convictions have resulted from the use of the instrument.

Priced at about $9,000 each, the Intoxilyzer 8000 is supposed to be a big step forward in efforts by police to take drunken drivers off the road. Old breath testers require police to transport suspects back to a station to blow into a machine for a reading. The Intoxilyzer travels in police cars and can be used in the field. That allows officers to test a large number of suspects much more quickly than before.

The state Departments of Health and Public Safety say they're being methodical in introducing the breath tester and targeting areas that need it most. But defense lawyers say another strategy appears to be at work: avoiding legal challenges by quietly rolling out the device in rural areas.

"The defense bar is not going to flock to remote counties merely to wage a war on these machines in a venue orchestrated by the (Ohio Department of Health)," said Tim Huey, DUI chairman for the Ohio Association of Criminal Defense Lawyers. "That would be stupid. When the machines come to us, we will challenge them."

Defense lawyers say the Intoxilyzer machines are subject to errors based on environmental factors including heat and cold, as well as variables such as the length of time a suspect blows into the device. Some officers might encourage suspects to blow longer to obtain a positive reading, the lawyers say.

Ohio Department of Public Safety spokeswoman Lindsay Komlanc said she's aware of only one court challenge to the Intoxilyzer, although she said there could be others. Defense attorneys could name four cases.

In the one confirmed challenge, a 20-year-old Fairfield woman is contesting her May 2009 drunken-driving citation based on Intoxilyzer results.

Lawyers in several other states have been able to get thousands of convictions thrown out based on the refusal of the Intoxilyzer manufacturer, CMI Inc. of Kentucky, to turn over details of the machine's operations.

But Fairfield driver Lindsey Fintak and other Ohio drunken-driving suspects apparently won't be able to challenge Intoxilyzer results on that basis. A 1984 Ohio Supreme Court decision barred defendants from attacking the reliability of breath testers once they've been certified for use by the state Health Department.

"Anytime you get anywhere close to challenging the validity of the machine, you get rejected -- bad," said Matthew T. Ernst, Fintak's attorney. "A lot of the time, our challenges are not as full-blown as we could like because of the (1984) ruling."

Some DUI lawyers say the Intoxilyzer might reopen the possibility of questioning the machines themselves, but others say it's probably a lost cause.

Meanwhile, the state Department of Public Safety continues to put more of the instruments in the field, albeit slowly. Just 17 of the 710 Intoxilyzers purchased have been put to use.

"We are concentrating on areas most in need for this type of equipment --- smaller counties that may only have one instrument for the entire county, those that have been hit especially hard by budget constraints and have equipment that was previously in disrepair," Komlanc said. "We will continue to move forward with the rollout systematically, concentrating on where the need is the greatest as well as where we can get schedules accommodated for training."

Defense attorneys say they're ready to pounce.

"Our biggest problem right now is that you can get such a varied result depending on how you use the machine," said Rob Calesaric, a Newark defense lawyer. "The problem with that type of testing is that it's not that scientific. The more secretive they are, the more suspicious it makes us."

Black's Law Dictionary defines a motion in limine as "[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial." Black's Law Dictionary (7th ed.) p. 1033.  The motion in limine has been called a "procedural orphan" due to its lack of statutory or procedural authority despite being recognized by the Ohio Supreme Court in State v. Grubb 28 Ohio St.3d 199, 503 N.E.2d 1141 (1985). See Ohio Driving Under the Influence Law, Weiler & Weiler, 2009-2010 ed., sec.12.9, p. 355.  The practitioner should be careful not to rely upon a motion in limine in lieu of a motion to suppress due to the Ohio Supreme Court decision in State v. French, 72 Ohio St.3d 446, 650 N.E.2d 887 (1995), which held that a motion to suppress is the exclusive procedural method to challenge the admissibility of alcohol and drug test results.  However, a well-researched and timely motion in limine can be used to attack prior convictions, refusal issues, horizontal gaze nystagmus issues, scientific and expert witness issues and results of a portable breath test devise. (for a more exhaustive list see Ohio Driving Under the Influence Law, Weiler & Weiler, 2009-2010 ed., sec.12.11, p. 357).  Another potential landmine for the DUI practitioner is that your rights on appeal are significantly limited with a motion in limine versus a motion to suppress.  By its nature, a motion in limine ruling is tentative and often trial/evidence dependent. Therefore, a limine ruling will not form the basis for an appeal unless it is preserved for trial. See Columbus v. Sullivan, 4 Ohio App.3d. 7, 446 N.E.2d. 485 (1982).  Further, unlike a motion to suppress, a plea (even a no-contest plea) waives the right to appeal the motion in limine ruling. State v. Benton, 136 Ohio App.3d 801, 737 N. E.2d 1046 (2000).  The motion in limine is a powerful tool that can be used with devastating effectiveness as a trial approaches.  This trial lawyer's tool should not be overlooked.

The Dayton Municipal Court was created in 1913 by the Ohio State Legislature and began its judicial operation in 1914. The court serves the citizens of Dayton, Ohio and is located at 301 West Third Street at the coner of Third and Perry Streets.  Five full-time judges and two full-time Magistrates serve on the court.  You can find out more about the Dayton Municipal Court by visiting www.DaytonDUI.com or www.DaytonMunicipalCourt.com.  One of my favorite features on the site is the recently added "pay fines on-line" program.  If you find yourself facing a charge in this court please contact attorney Charles M. Rowland II at 937-879-9542 or 1-888-ROWLAND.

If you ever question why an attorney would fight so hard for the accused drunk driver look no further than the decision (recently affirmed at Middleburg Hts. v. Henniger, 2006-Ohio-3715) setting forth the US Supreme Court DUI exception to the Fifth Amendment.  The United States Supreme Court has held that the admission of evidence at trial of a defendant's refusal to take a chemical test does not violate the defendant's Fifth Amendment privilege against self-incrimination or the Fourteenth Amendment right to due process. South Dakota v. Neville (1983), 459 U.S. 553, 564-566. Following Neville, the Supreme Court of Ohio has held that the trier of fact may consider a defendant's refusal to submit to a chemical test as evidence in deciding whether the defendant was under the influence of alcohol. Maumee v. Anistik (1994), 69 Ohio St.3d 339, syllabus; see, also, State v. Spurlock (Dec. 15, 1995), Portage App. No. 95-P-0067.

The following language was taken from the recently decided Middleburg v. Henniger, cited above:

Ohio, like South Dakota in Neville, has adopted an implied consent statute, which is outlined in R.C. 4511.191. The consent statute spells out a bargain between drivers and the state. In exchange for the use of the roads within the state of Ohio, drivers consent to have their breath tested if a police officer has reason to believe the driver is intoxicated. Because an OVI suspect is already deemed to have consented to the breath test, "no impermissible coercion is involved when the suspect refuses to submit to take the test." Neville, 459 U.S. at 562.

Here, as in Neville, there was no compulsion. The state did not directly compel Henniger to refuse the test; rather the state gave Henniger a choice. We recognize, of course, that the choice to submit or refuse to take a breath test will not be an easy or pleasant one for a suspect to make, but "the criminal process often requires suspects and defendants to make difficult choices." Neville, 459 U.S. at 759.

Since Ohio has long accepted the principle that a defendant's refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance a minimum term of imprisonment. If it is admissible for one, it is equally admissible for the other. To require Miranda warnings before using a defendant's refusal would be akin to requiring Miranda warnings for targets during a conspiracy investigation. "The right to refuse the blood alcohol test, unlike the right to remain silent in a police interrogation, was a matter of legislative grace, not constitutional imperative; and (2) the warnings given to Neville by the police officers, unlike Miranda warnings, did not contain `implicit assurances as to the relative consequences of his choice' whether to take the test." South Dakota v. Neville, 459 U.S. at 565. Neville thus reaffirms that due process is denied only when the government induces a defendant's post-arrest silence with the assurance that such silence will not be used against the defendant. United States v. Quinn (4th Cir. 2004), 359 F.3d 666, 678.