When most people think of “Vega”, they think about the 1970s Chevrolet vehicle, named as one of the “10 most Embarrassing Award Winners in Automotive History” by CarAndDriver.com. When Ohio DUI attorneys think of Vega, we think about the Ohio Supreme Court decision regarding our ability to challenge the reliability of breath testing machines.
In 1984, the Ohio Supreme Court decided the case of State v. Vega. In that case, Pete Vega was charged with OMVI and wanted to have an expert testify about the reliability of the type of breath-testing machine used in Mr. Vega’s case. The trial judge excluded the testimony of Mr. Vega’s expert, and Mr. Vega was convicted. The Court of Appeals reversed Mr. Vega’s conviction, concluding that his expert should have been permitted to testify. The Ohio Supreme Court, however, reversed the decision of the Appeals Court, holding that an accused may not make a general attack upon the reliability and validity of the breath testing instrument. The Court reasoned that the Department of Health (part of the executive branch of government) determined the breath-testing machines were generally reliable, so a defendant cannot argue the machines are not generally not reliable.
Here’s the situation in a nutshell:
• the executive branch of the government uses a machine to prosecute a person for OVI (DUI);
• the person being prosecuted wants to demonstrate the machine is not reliable;
• the government says, “you are not permitted to argue that”;
• the person says, “how do we know it’s reliable?”;
• the government says, “because we (the government) declared it is reliable”.
That’s the status of breath-testing law in Ohio.
The status of breath-testing in Ohio was recently aggravated when the executive branch adopted the use of Intoxilyzer 8000 machines (a topic to be covered in the near future). Although the reliability of those machines has been seriously questioned in other jurisdictions, Ohio intends to use those machines throughout the state. One encouraging possibility is that, with the use of the Intoxilyzer 8000, perhaps courts will question the reliability of the machines and permit the defense to do so as well. There is hope that Ohio will get ride of Vega, just like Chevrolet did in 1977.