Recently, the Ohio Supreme Court decided a groundbreaking case in the area of OVI law. In Cincinnati v. Ilg, Slip Opinion No. 2014-Ohio-4258, the Ohio Supreme Court clarified that a defendant does have the right to challenge “the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results or whether the specific machine used to test the accused operated properly at the time of the test.”
This includes a right to request relevant documents from the City and from the Ohio Department of Health (ODH) to support the defendant’s claim that the machine used to test him failed to operate properly.
Where, as here, the City and the ODH failed to comply with a court order to produce records relevant to the defendant’s breathalyzer machine, the trial court may -as here – exclude the breath test results as a discovery sanction.
Facts: Defendant Lost Control of Vehicle & Charged with OVI
In the early morning hours, Defendant Daniel Ilg lost control of his vehicle while driving in Cincinnati and struck a fence, a sign, and a pole. The officer who investigated the accident arrested Ilg for OVI.
At the police station, the defendant submitted to a breath-alcohol test. An Intoxilyzer 8000 machine measured his BAC at 0.143 grams of alcohol per 210 liters of breath, over the limit of .08. He was charged with OVI (R.C. 4911.19(A)(1)(a)), OVI with breath test over the limit (R.C. 4511.19(A)(1)(d)), and failure to control.
He entered a not guilty plea and moved to suppress the results of the breath test.
The Defendant’s Discovery Requests & ODH Subpoena
At the trial court level, the defense requested in discovery the computerized online breath archives data (“COBRA” data) from the ODH for the Intoxilyzer 8000 machine. This information is transmitted by the machine to ODH for every breath test.
Specifically, the defendant requested information regarding the test, instrument-check printouts and forms, diagnostic and calibration checks, maintenance, service, and repair records, radio frequency interference test records, and any computerized or downloaded information or data from the specific Intoxilyzer 8000 machine used to test him.
He also requested data from that machine not only as it related to his test, but also for three years prior to his arrest and for three months following it.
When the city failed to produce these records, he subpoenaed Mary Martin, the program administrator for alcohol and drug testing at ODH. The subpoena requested that Martin produce:
“[a] copy of any and all records maintained by the Ohio Dept. of Health and the Ohio Depart. of [Public] Safety relating to the Intoxilyzer 8000, serial number 80-004052, * * * including but not limited to:
a. Any and all computerized online breath archives data, also known as ‘COBRA’ data.” “COBRA data” refers to a database maintained by ODH that records information transmitted from each breath-analyzer machine for each breath test performed in the field, and it also includes personal information of other individuals the machine had tested.”
He also subpoenaed records related to the machine’s log-in history, repair and maintenance, radio frequency interference certification, and software changes or modifications, as well as any communications regarding the Intoxilyzer 8000 between ODH and the city of Cincinnati, the Ohio Department of Public Safety, and the manufacturer of the breath-analyzer machine.
None of the parties—the city, ODH, or Martin—responded to the subpoena.
Request for Discovery Sanctions
The defendant then moved for sanctions and sought to exclude the results of his breath test because of the failure to comply with his discovery request and the subpoena he had issued.
At a hearing, Martin testified that the COBRA data is stored in read-only format and cannot be released without redacting the personal information of other test subjects. She stated that ODH lacked the personnel and ability to copy the database and stated, “[A]t this time we don’t have the ability to give the database out.”
At the end of the hearing, the court ordered ODH to disclose the records requested in the subpoena and told the City of Cincinnati that it would grant the motion for sanctions if it failed to produce the evidence.
The court’s deadline for compliance passed and no records were produced. The defendant again moved for sanctions for failure to comply with the court’s order.
At another hearing, Martin admitted that she had not provided the COBRA data, claiming that ODH lacked the personnel and technology to copy the database, that it would require an additional employee and approximately $100,000 to produce a copy that could be released. Even with those additional resources, the COBRA data would be technologically difficult to produce.
The trial court found that the defendant had the right to challenge the reliability of his breath test but could not challenge the test without the COBRA data generated by the Intoxilyzer 8000 that tested him.
Therefore, the court excluded the breath test results form evidence.
Court of Appeals: Defendant May Discredit a Particular Breathalyzer Machine
The Court of Appeals agreed. On appeal, the appellate court found that the court had not abused its discretion in ordering COBRA data to be produced. The defendant needed this data for trial preparation. He had requested it in good faith, and the court found that it was relevant and that the defendant could not have obtained it without ODH cooperation.
The Court of Appeals further found that the defendant had not sought to challenge the general scientific reliability of all Intoxilyzer 8000s, but rather sought to discredit only the particular breathalyzer machine that Cincinnati Police used to test his breath-alcohol concentration.
Exclusion of the breath-test result was reasonably calculated to protect the defendant’s right to a fair trial.
Ohio Supreme Court
The Ohio Supreme Court accepted the appeal on the following issue:
“Whether an accused defending a charge that he operated a motor vehicle with a prohibited level of alcohol in his breath is precluded from attacking the reliability of the specific breath-testing machine that measured his blood-alcohol concentration.”
COBRA and Other Breath Test Information Are Not Discoverable
On appeal, the prosecution’s argument was this: Because “State v. Vega prohibits defendants in OVI cases from making attacks on the reliability of breath testing instruments, . . . a defendant cannot compel any party to produce information that is to be used for the purpose of attacking the reliability of the breath testing instrument.”
The City argued that COBRA data is not discoverable in a criminal case. There was no reasonable probability that producing it would alter the outcome of the defendant’s trial, because pursuant to State v. Vega, 12 Ohio St.3d 185, 186, 465 N.E.2d 1303, this type of evidence is inadmissible for purposes of making a general attack on the reliability of a breath testing machine.
According to the city, the COBRA documents requested are not relevant to challenging the validity of Ilg’s breath test, but rather relate to every person who had taken a breath test on that particular Intoxilyzer 8000 machine. The defense, the City argued, had not demonstrated how data from other tests affect the
validity of the results of the defendant’s test.
The city also argues that because evidence relevant to attacking the reliability of a breath-analyzer machine is not discoverable pursuant to Crim.R. 16, it cannot be the subject of a subpoena intended to provide additional discovery beyond that permitted by Crim.R. 16.
Finally, the city argued that compliance with the subpoena was impossible for ODH, and in any case, COBRA data is not relevant and the defendant could prepare for trial without it, as he sought only to engage in “a fishing expedition.”
The Defense’s Arguments: COBRA Data is Discoverable
The defense first argued that city failed to preserve for appeal any argument that the COBRA data was not discoverable pursuant to Crim.R. 16, that the data is inadmissible as not material to guilt or innocence, or that he abused Crim.R. 17 by issuing a subpoena to expand the scope of discovery.
Next, the defense argued that the that COBRA data is discoverable pursuant to Crim.R. 16(B) because it is a relevant document, a tangible item, or the result of a scientific test.
Further, it is admissible because State v. Vega does not prohibit a defendant from challenging the reliability of the machine that tested him – it only prevents a general attack on the scientific reliability of all Intoxilyzer 8000s.
The defendant also argued that he not abused Crim.R. 17 to expand the scope of discovery, but only issued the subpoena after the city failed to comply with his demand for discovery. Compliance with the subpoena was not oppressive – there was no evidence supporting the claim that it would be too costly to produce the COBRA data.
What’s more, ODH’s online database shows that this machine has tested only 53 individuals, with more than 10 percent tested twice due to various errors.
Ohio Statute Delegates Breathalyzer Approval to ODH
R.C. 4511.19(D)(1)(b): Governs the admissibility of alcohol-test results and states:
“In any criminal prosecution . . . [for an OVI offense], the court may admit evidence on the concentration of alcohol . . . at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. * * *
The bodily substance withdrawn . . . shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.”
Pursuant to this authority, ODH promulgated Ohio Adm.Code 3701-53-02(A)(3), approving the Intoxilyzer 8000 as an evidential breath-testing instrument for use in determining the concentration of alcohol in a person’s breath for purposes of R.C. 4511.19.
Previous Ohio Supreme Court Cases Discussing Challenging Breathalyzer Machines
In a 1984 Ohio Supreme Court case – State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984) – the Ohio Supreme Court precluded an accused from presenting expert testimony attacking the general scientific reliability of breath-alcohol tests that have been conducted in accordance with methods approved by the director of ODH.
Unlike Vega, in this case, “the defendant sought COBRA data from the specific Intoxilyzer 8000 machine that tested his breath in order to challenge whether it operated properly on the day of his arrest in an effort to establish that the test results in his case were inaccurate—not to question the scientific reliability of Intoxilyzer 8000 machines in general.” Cincinnati v. Ilg, Slip Opinion No. 2014-Ohio-4258, at P3.
Every person accused of an offense involving a breath test machine may challenge the accuracy and credibility of a breath test. This means that the defendant can challenge, for example, (1) whether the breath-analyzer machine failed to operate properly at the time of testing or (2) that the results had not been analyzed in accordance with methods approved by the director of ODH.
In State v. Vega, the Ohio Supreme Court held that the General Assembly had “legislatively resolved the questions of the reliability and relevancy of intoxilyzer tests” by delegating approval to the ODH.
“Because the legislature provided for the admissibility of intoxilyzer tests if analyzed in accordance with methods approved by the director of ODH, an accused may not present expert testimony attacking the general scientific reliability of approved test instruments.” Vega at 189.
Soon after, in State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d 689 (1984), the Ohio Supreme Court clarified its ruling in Vega, finding that “although an accused may not challenge the general accuracy and scientific reliability of the test procedure selected by ODH, the accused ‘may still challenge the accuracy of his specific test results.’”
More recently, in State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752, the Ohio Supreme Court noted that “a defendant may argue at trial that the particular device failed to
operate properly at the time of testing.” Id. at ¶ 19.
Thus, the General Assembly has delegated to the director of ODH the authority to adopt appropriate tests and procedures to for breathalyzer tests.
But although the court announced in Vega that “an accused may not make a general attack upon the reliability and validity of the breath testing instrument,” id. at 190, ODH “approval of the Intoxilyzer 8000 does not preclude an accused from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific tests results at issue in a pending case.” Ilg at P29.
Examples of challenges on which an accused may seek to suppress the results of his breath test include:
- If the sample was not given within two hours of the time of the alleged violation,
- If it was not analyzed in accordance with regulations governing the maintenance and operation of testing devices. French, 72 Ohio St.3d 446, 630 N.E.2d 887, at paragraph one of the syllabus; Edwards at ¶ 11.
- An attack the breath-test results by attempting to prove that “the particular device failed to operate properly at the time of testing.” Edwards at ¶ 19.
Defense’s Expert Testimony: COBRA Data is Necessary to Challenge the Reliability of the Specific Test Used in this Case
Here, the COBRA data that the defendant sought in the subpoena expressly targeted evidence related solely to the specific Intoxilyzer 8000 that the city used to perform his breath test.
Ilg’s expert testified that “[i]n order to be able to evaluate the reliability of the test, this particular Intoxilyzer 8000 machine, and the testing procedures in this case, all of the documents requested of the State and ODH are necessary.”
No one from ODH gave any testimony suggesting that the COBRA data is not, in fact, relevant to demonstrating the inaccuracy of Ilg’s breath test on the night of his arrest.
Thus, the record supports the trial court’s finding that Ilg could not challenge the reliability of his breath test without the COBRA data generated by the Intoxilyzer 8000.
Conclusion: Accused Can Challenge Specific Test Results or Whether a Specific Machine Operated Properly
The Ohio Supreme Court previously held in State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303, that an accused is precluded from presenting expert testimony to attack the general scientific reliability of breath-alcohol tests conducted in accordance with methods approved by the director of the Ohio Department of Health.
However, the approval of a breath-analyzer machine by the ODH does not preclude an accused from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results or whether the specific machine used to test the accused operated properly at the time of the test.
Thus, an accused may challenge the accuracy of specific test results rendered by a breath-analyzer machine. The defendant is entitled to discovery of relevant evidence to support his claim that the Intoxilyzer 8000 machine used to test him failed to operate properly.