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The Ohio Association of Criminal Defense Lawyers asked attorney Sabol to write an amicus brief in the case of Cincinnati v. Daniel Ilg, which challenged the Ohio law prohibiting OVI / DUI defendants from challenging the accuracy of results from machines used to test alcohol content of their breath.
In the case at issue, Daniel Ilg was charged with OVI / DUI per se after blowing over the Ohio legal limit on an Intoxilyzer 8000 machine. He hired an expert to analyze his breath test results and tried to get the data from the actual machine used to test him, but the Ohio Department of Health never provided the data from its database despite a subsequent order from a judge.
The reason provided for the failure to provide the data was that the agency would have to provide the database with the information of test subjects other than Ilg redacted so it couldn’t be read, and that the agency didn’t have the staff to do that. Further, the agency claimed it would have cost them $100,000 to redact the information.
The judge decided that the breath test results shouldn’t be admitted in court as evidence of Ilg’s guilt since he had no opportunity to properly challenge them. Allowing them to be used would have impeded Ilg’s right to a fair trial. The city of Cincinnati appealed the ruling, but the First District Court of Appeals agreed with the trial court and upheld the ruling. The Ohio Supreme Court is now the third court to agree that the test results shouldn’t be used when the machine data was not provided.
The ruling issued Oct. 1 in the Ilg case resolves some lingering uncertainties created by the Ohio Supreme Court in the 1984 case of State v. Vega, 12 Ohio St.3d at 186, 465 N.E.2d 1303. In Vega, the court held that defendants could not use expert testimony to challenge the general scientific reliability of breath tests machines approved for use by the director of the Ohio Department of Health.
However, in Ilg, his goal was to challenge his specific test results, not the general reliability of the Intoxilyzer 8000. The court in this case ruled that the simple act of approval by the Ohio Department of Health director of a breath test machine “does not preclude an accused from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results or whether the specific machine used to test the accused operated properly at the time of the test.” Cincinnati v. Ilg, Slip Opinion No. 2014-Ohio-4258 at 12.
The bottom line for anyone charged with OVI / DUI based on breath test results is that you do in fact have the right to attack those test results, and the Ohio Department of Health must provide breath test data when requested so that you have the opportunity to examine and challenge it in court.
If you’ve been charged with OVI / DUI based on the results of a breathalyzer test, the Columbus criminal defense attorneys at Luftman, Heck & Associates can help. Call us today at for a free consultation.