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Dan Sabol pens brief in Ohio Supreme Court breathalyzer case

Columbus Criminal Defense attorney Dan Sabol was asked to write an amicus brief on behalf of the Ohio Association of Criminal Defense Lawyers in an Ohio Supreme Court case that could have implications for drivers across the state charged with OVI / DUI based on breath test results.

An amicus brief is submitted in an appellate case by parties who have an interest in the outcome of the case, but who were not involved in the original lawsuit. Sabol worked with attorney Jessica Fallon to write the brief, which urges the Ohio Supreme Court to uphold previous rulings in the case of Cincinnati v. Daniel Ilg.

Ilg was arrested and charged with a per se OVI offense after he blew over the legal limit on a breathalyzer machine. Testing over the legal limit is considered proof in and of itself that a person was operating a vehicle under the influence and results in a separate charge from OVI impaired, in which a person was alleged to have appeared, behaved, or drove in a way that suggested alcohol impairment.

While preparing his case, Ilg hired an expert to challenge the breath test results and the operation of the Intoxilyzer 8000 machine used to test him. As part of that challenge, Ilg wanted data from the specific machine that was housed in a database at the Ohio Department of Health. The formal legal request was made for the data, but the data was never provided.

When the data didn’t come, Ilg’s lawyer asked the trial judge to intervene and compel the city of Cincinnati, which was prosecuting Ilg for the OVI per se offense, to provide the data. A couple of hearings were held, during which an official from the Ohio Department of Health testified that she thought it would be too difficult to get the data and turn it over. The judge found that the data from the specific Intoxilyzer 8000 was necessary for Ilg’s defense and ordered that the data be provided, but it still never came.

Ultimately, the judge decided that without the data Ilg couldn’t properly challenge the test results, and that impeded Ilg’s right to a fair trial. The judge ruled that the breath test results couldn’t be admitted as evidence in Ilg’s trial, and Cincinnati appealed that decision. The First District Court of Appeals upheld the trial judge’s decision, and now the case is in the state Supreme Court.

What’s at stake is a person’s right to obtain evidence that’s in possession of the state and that is relevant to his or her defense. Every person accused of a crime has a right to a fair trial, and part of that right includes being allowed to challenge the evidence that the prosecutor says proves the person’s guilt.

As much as we all rely upon technology these days, machines are far from infallible. Sometimes a breath test machine gets it wrong, and if a defendant believes that happened, he or she has the right to obtain the evidence that proves that. There’s a general policy against allowing fishing expeditions wherein defendants request broad swaths of information in the hopes of finding that needle in the haystack that might get them off, but OVI defendants have to be allowed access to specific information about the specific machine that was used to test them. That’s what Ilg was denied in his case — and what the courts so far have said he’s entitled to have.

If OVI defendants aren’t allowed access to the data about the specific machines used to test them, the result will be innocent people convicted of a crime, and our criminal defense system is supposed to be structured to prevent that from happening.

If you’ve been charged with OVI / DUI based on the results of a breath test, the Columbus Criminal Defense team can help. Call or text today to set up a free consultation.

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