UNAMIMOUS SUPREME COURT REINFORCES DEFENDANT'S RIGHT TO CHALLENGE BREATH TEST RESULTS IN OHIO DUI/OVI CASES
For three decades, lawyers and judges have been misinterpreting the case of State v. Vega. In Vega, the Ohio Supreme Court held defendants in DUI/OVI cases may not attack the general reliability of breath-testing machines. Some lawyers and judges interpret Vega as if it says defendants are not permitted to make any challenge to the breath test result. This misinterpretation of the Vega decision may exist in part because most people have not actually read the decision. It's like the telephone game where the statement made by the first person in the game is modified drastically by the time the statement is repeated by the last person in the game. A few days ago, the Ohio Supreme Court clarified the holding of Vega in a case which will hopefully end the abuse of defendants' rights resulting from the misinterpretation of Vega.
The recent case is Cincinnati v. Ilg. In Ilg, the defendant took a breath test on an Intoxilyzer 8000, blew over .080, and was charged with OVI. The defense attorney filed a Demand For Discovery requesting that the prosecution provide records for the specific Intoxilyzer 8000 used for his client's breath test. When the prosecution did not provide the records, the defense subpoenaed the records from the Ohio Department of Health, the agency responsible for maintaining those records. The program administrator for the Department of Health's alcohol and drug testing program told the Court the Department of Health did not have the personnel or technology to provide the requested records. The records were not provided.
The trial court excluded the breath test results from evidence, concluding the defendant had the right to challenge the reliability of his breath test and could not do so without the requested records. The prosecution appealed to the First District Court of Appeals, and the appellate court affirmed the decision of the trial court. The prosecution then appealed to the Ohio Supreme Court. The prosecution's primary argument was this: a defendant cannot compel the State to produce information that is to be used for the purpose of attacking the reliability of the breath-testing instrument because State v. Vega prohibits defendants from making attacks on the reliability of breath-testing instruments.