Challenging breath-alcohol tests

Justice Paul E. Pfeifer

In the early morning hours of October 22, 2011, Daniel Ilg lost control of his car while driving in Cincinnati; he struck a fence, a sign, then a pole. The police officer who investigated the accident arrested Ilg for operating a motor vehicle while under the influence of alcohol.

At the police station, Ilg submitted to a breath-alcohol test. His breath-alcohol concentration measured at 0.143 grams, beyond the 0.08 permitted by law. As a result, the city charged Ilg with operating a vehicle while under the influence of alcohol (“OVI”), operating a motor vehicle with a prohibited level of alcohol in his breath, and failing to maintain control of his vehicle.

Ilg pled not guilty and decided to challenge his breath-alcohol test by filing a motion to suppress the results of the test. He also sought discovery of the test and instrument-check printouts, diagnostic and calibration checks, maintenance, repair records, radio frequency interference test records, and any computerized information from the specific machine used to test him. He sought data from that machine for three years prior to his test and for three months following it.

When the city didn’t produce these records, Ilg subpoenaed Mary Martin, the program administrator for alcohol and drug testing at the Ohio Department of Health (“ODH”). The subpoena requested a copy of all records maintained by ODH relating to the machine that tested Ilg. Those records included 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 includes personal information of other individuals the machine has tested.

When the subpoena went unanswered, Ilg moved for sanctions and sought to exclude the results of his test because of the failure to comply with his discovery request. At a later hearing, Martin testified that the COBRA data is stored in a manner that cannot be revealed without redacting the personal information of other test subjects. She asserted that ODH lacked the personnel and ability to copy the database.

Nevertheless, the court ordered ODH to disclose the requested records and advised the city that it would grant the motion for sanctions if it failed to produce the evidence.

After the deadline for compliance passed, Ilg argued that Cincinnati had not obeyed the court’s order to disclose, and he requested the exclusion of the test results as a sanction. At a second hearing, Martin admitted that she had not provided the 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, and that even with those resources, the data would be technologically difficult to produce.

The trial court found that Ilg had the right to challenge the reliability of his breath test but could not do so without the COBRA data. The trial court therefore excluded the breath-test results from evidence.

When the court of appeals reviewed the case, it determined that the trial court had not abused its discretion in ordering COBRA data to be produced, because Ilg needed it for trial preparation, he had requested it in good faith, it was relevant to his case, and Ilg couldn’t obtain it without ODH cooperation.

The court of appeals further determined that Ilg had not sought to challenge the scientific reliability of all breath-alcohol machines, but rather sought to discredit only the one used in his test. It concluded that exclusion of the test result was reasonably calculated to protect Ilg’s right to a fair trial.

After that, Ilg’s case before us – the Supreme Court of Ohio – for a final review.

The city maintained that COBRA data is not discoverable in a criminal case, because it doesn’t fall within the type of items that the rules of trial procedure require the prosecution to produce. It asserted that the COBRA data wasn’t material to guilt or punishment, and that the data sought wasn’t relevant to challenging the validity of Ilg’s test, but rather relates to every person who had taken a breath test on that machine.

The city also argued that compliance with the subpoena was impossible for ODH, and that Ilg could prepare for trial without the data as he sought only to engage in “a fishing expedition.”

Ultimately, this case boiled down to one narrow issue: whether an accused defending an OVI charge is precluded from attacking the reliability of the specific machine that measured his blood-alcohol concentration.

In 1984, our court recognized 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 result.”

Similarly, in 1988, we noted, “it is well-established that a defendant may challenge the accuracy of his specific test results.” And our decision in a 1995 case concerned the procedure for attacking the admissibility of a test result based on the failure to substantially comply with ODH regulations on chemical testing.

Then, in a 2005 case, we noted that an accused may move to suppress test results based on noncompliance with regulations governing the maintenance and operation of testing devices. We further indicated that a defendant may challenge test results on grounds other than that the results were illegally obtained. “For example, a defendant may argue at trial that the particular device failed to operate properly at the time of testing.”

As these cases demonstrate, although the Ohio legislature has delegated to the director of ODH the authority to adopt appropriate tests to analyze alcohol and other substances, that doesn’t preclude an accused from challenging the accuracy of specific test results in a pending case.

Thus, we concluded – by a seven-to-zero vote – that an accused may challenge the accuracy of specific test results rendered by a breath-analyzer machine. Accordingly, we affirmed the judgment of the court of appeals.

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