OVI and DUI in Ohio is no longer (purely) “trial by machine.”
For many decades in Ohio, the General Assembly allowed the Ohio Department of Health to develop the program to test drivers for being under the influence of alcohol. The ODH responded by approving, as the Ohio General Assembly directed, breath-testing machines, designed and approved by the State, which were deemed to be reliable methods of measuring the amount of alcohol in a person, by taking and measuring the alcohol in their breath – measured by blowing into the machine and through a scientific and mechanical process measuring the content of the alcohol in the breath sample, and then through a mathematical calculation producing a result in terms of the amount of alcohol in the person – the mathematical ratio of alcohol to breath calculated to how much that must mean in the body or blood.
The original law though just created a presumption, that if the driver has so much alcohol in them, as determined by the machine, they must be “under the influence,” meaning appreciably impaired in their driving ability and therefore the safety of the public, but the driver could fight or rebut that by other evidence, such as actual safe driving, witnesses, or other scientific tests.
Part of the defenses included attempts to show, by scientists and engineers, that the methodology was flawed, or the machines weren’t reliable. In State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), the Ohio Supreme Court held that when the General Assembly wrote the DUI laws and said, the ODH can determine reliable methods for testing, those methods so approved could not be attacked as unreliable – the courts would not be permitted to rewrite the law even if they disagreed with the science, or lack of science.
Along the way the “presumption,” that could be attacked, that a person the machine said had so much alcohol in them was legally “under the influence,” also changed. Ohio law was changed (as it was in almost every other State) to do away with the “rebuttable presumption” of being under the influence, to the new “per se” offense, that it was illegal to drive if the machine said your alcohol level was above a certain limit. In a “per se” prosecution, it didn’t matter whether you were really under the influence or not, if the machine said your blood alcohol content, as measured by comparison to your breath alcohol content, was so much, you committed a crime.
This came to be known as “trial by machine.” If the machine said so, you were guilty. So attorneys defending persons accused of driving “over the limit,” the per se offense, attempted to attach the machine or in some cases the testing method itself, as well as their client’s actual impairment. Courts in Ohio for years said that State v. Vega prohibited that attempt. One couldn’t challenge the machine, or the test, and could only challenge if the test was done on an approved machine and by the approved method. But that was it.
But that is not what State v Vega said. It only “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.” It did not prohibit an accused driver of arguing that the result was wrong, because the machine didn’t work right, generally or in their case.
In recent years the ODH approved a new breath testing machine that has been so controversial that the attack on “trial by machine” was opened anew. Ohio approved the “Intoxilyzer 8000” (named because it was cheaper than the “Intoxilyzer 10000”). Study of the machine by scientists and legal professionals discovered many potential defects in the machine that called into question the reliability of it generally and in individual cases. The machine was so controversial that many police departments quit using it and went back to the machines that were used before it. But efforts were made to get to the source of the methodology used and the history of the design and use of the new machine. Many courts resorted to the mistaken but commonly accepted misinterpretation of State v Vega to prevent those efforts and challenges to the machine.
The approval of this controversial machine that so many across the country thought was unreliable opened the door to attach that commonly accepted misinterpretation, and the attack was successful. In 2011 a driver (Mr. Ilg) lost control of his car on Beekman Street in Cincinnati, Ohio, and ran off the road striking a fence, a sign, and a pole. The investigating officer arrested Ilg for OVI (used to be known as DUI). Ilg submitted to a breath-alcohol test on the Intoxilyzer 8000 machine, which measured his breath-alcohol concentration over the legal limit. His attorneys asked the court to suppress or exclude the results of his breath test. In that process they tried to get documentation not only on Ilg’s test, but other data about the operation of the machine, both on him and on others.
The prosecution did not produce the requested information, so Ilg’s attorneys subpoenaed them directly from the ODH for its database maintained from each breath-analyzer machine for each breath test performed across the State. Ilg also subpoenaed records 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 subpoenaed persons even responded.
So Ilg’s attorneys did what all attorney’s do when a subpoena is ignored – they asked the court to exclude the results of his breath test because of the failure to comply with the discovery requests and subpoenas. How can they present the test result, but hide the information used to get it? At a hearing on the request ODH officials testified they couldn’t give the requested information, for various technical reasons. The court disagreed with the State and the City, ordered ODH to disclose the records requested in the subpoena, and told the prosecution that sanctions would be imposed it if did not comply.
The court’s deadline for compliance passed, and so Ilg again moved for the sanctions to be imposed, including the exclusion of the breath-test results. At the hearing on why the State did not comply, ODH claimed it “lacked the personnel and technology to copy the database,” and that “it would require an additional employee and approximately $100,000 to produce a copy that could be released,” and even then it would be “technologically difficult to produce.”
The court held that Ilg had the right to challenge the reliability of his breath test but could not without the data generated by the Intoxilyzer 8000 that tested him. The trial court therefore excluded the breath-test results from evidence.
The State appealed, but the court of appeals that the trial court did not commit error by suppressing the results. Disregarding the argument that State v. Vega prevented the attempt to do what Ilg was trying to do, the court also held that Ilg had not sought to challenge the scientific reliability of all Intoxilyzer 8000s, but to discredit the particular breath analyzer that Cincinnati Police used to test his breath-alcohol concentration. The prosecution appealed again, to the Ohio Supreme Court, arguing one proposition: “State v. Vega prohibits defendants in OVI cases from making attacks on the reliability of breath testing instruments, thus 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 Ohio Supreme Court rejected this proposition, confirmed what it meant in State v Vega, and allowed the challenge and the sanction imposed – exclusion of the test that they would not allow to be examined. Although “an accused therefore may not attack the general scientific reliability of that machine test,” 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.” And as Ilg’s expert witness testified, “[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.” So Ilg was “entitled to discovery of relevant evidence to support his claim that the Intoxilyzer 8000 machine used to test him failed to operate properly.”
The case is not a complete victory for those defending accusations of OVI, because it did not allow the challenge to the entire machine and method once approved by ODH. But it did allow the argument that the test in the particular case was scientifically unreliable – the “machine” might be wrong, and if it might be wrong, there might be reasonable doubt as to whether an accused driver did in fact violate the per se offense. And the absolute bar to any attack of the machine’s test result, on the basis of simple science, based on the misinterpretation of State v. Vega, is no more.
The case is in City of Cincinnati v. Ilg, 2014-Ohio-4258, and can be found at:
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I hope readers find this information helpful and interesting.
Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.