Mary K. Martin is the former head of the Department of Health’s Alcohol and Drug Testing program. In that role, she was responsible for the implementation of the Intoxilyzer 8000.
In a recent case, the Ohio Supreme court held that the approval of a breath-analyzer machine by the director of the Ohio Department of Health as a device to test breath-alcohol concentration 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.
The case is Cincinnati v. Ilg, Slip Opinion No., 2014-Ohio-4258.
The case started in 2011. The defendant lost control of his vehicle while driving in Cincinnati, Ohio, and struck a fence, a sign, and a pole. He was later arrested for drunk driving, or operating a vehicle under the influence (“OVI”, also known as “DUI”). He submitted to a breath test. An Intoxilyzer 8000 machine measured his breath-alcohol concentration at 0.143, beyond the amount permitted by law of 0.08.
The defendant sought to discover information about the Intoxilyzer 8000, including diagnostic and calibration checks, maintenance, service, and repair records, radio frequency interference test records, and any computerized or downloaded information or data from the specific Intoxilyzer 8000 machine used to test him. “He also sought data from that machine not only as it related to his test, but also for three years prior to his arrest and for three months following it.” He also sought information about the machine from the Ohio Department of Health, as well as its communications with the manufacturer. The Department responded that some of the data sought by the defendant would be expensive and exceedingly difficult to produce.
The judge ruled that the State could not use the results of the breath test without producing the information.
The city appealed, arguing that under a prior Supreme Court decision, State v. Vega, a defendant cannot seek discovery for the purpose of attacking the reliability of the breath testing instrument. In the Vega case, the Supreme Court had held that once a breath testing machine had been approved by the Department of Health, a drunk driving suspect may not present expert testimony attacking the general scientific reliability of approved test instruments.
In later decisions, the court explained that although an accused may not challenge the general accuracy and scientific reliability of the machine, an accused “may still challenge the accuracy of his specific test results.” The court explained the impact of these decisions on the Intoxilyzer 8000: “the General Assembly has delegated to the director of ODH the authority to adopt appropriate tests and procedures to chemically analyze specified bodily substances to ascertain the concentration of alcohol, drug, controlled substance, or combination thereof in those bodily substance and issue permits to qualified persons to perform those analyses. . . . The director has decided that Intoxilyzer 8000s, when used in accordance with department regulations, are capable of accurately measuring breath-alcohol concentrations . . . and an accused therefore may not attack the general scientific reliability of that machine test.”
The court found that the data sought by the defendant was relevant to demonstrating the inaccuracy of the defendant breath test on the night of his arrest. Thus, the data should have been produced.
The implications of this case are significant. The court held that the approval of the Intoxilyzer 8000 by the Ohio Department of Health as a device to test breath-alcohol concentration “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. Thus, an accused may challenge the accuracy of specific test results rendered by a breath-analyzer machine.”
Mary K. Martin, who now practices as a defense attorney representing drivers in OVI/drunk driving cases, was the prior program director responsible for the implementation of the Intoxilyzer 8000. She testified in this case. She explains that the case means that defendants facing drunk driving charges are now entitled to discovery of relevant evidence to support a claim that the Intoxilyzer 8000 machine used failed to operate properly.
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