In a ruling that could impact almost every drunken-driving case involving a not guilty plea, the Ohio Supreme Court ruled today that defendants have a right to challenge the accuracy of results from alcohol breath-testing machines.

The justices' opinion unanimously upheld lower court rulings dismissing test results in the case of a man who was denied data by the Ohio Department of Health about the prior results and accuracy of the specific machine on which he was tested.

Ohio law forbids DUI defendants from generally challenging the scientific reliability of breath-testing machines certified by the health department, but the court today OK’d challenges to results produced by individual machines.

Rob Calesaric, a Newark lawyer and member of the Ohio Association of Criminal Defense Lawyers' DUI committee , called the ruling "pretty significant."

"It could cause all test results to be thrown out if they don’t find a proper way to deal with it and provide information to defense counsel," he said.

In today’s case involving the DUI case of a Cincinnati man, the health department said in response to a subpoena that it could not turn over data on the machine, the Intoxilyzer 8000, that measured his blood-alcohol level.

While it maintains a public online database of individuals' breath-test results, a state health official said the agency lacked the employees and technology to export and copy the database of DUI test results produced by an individual machine, saying it would cost $100,000 to produce a copy.

DUI defense lawyers involved in the case insist that health officials can provide the data, but have resisted doing so because it might demonstrate the unreliability of the Intoxilyzer 8000.

Justice Terrence O’Donnell wrote in the court’s opinion, however, that DUI defendants have a right to that information, along with testing, calibration and other data, to challenge the accuracy of alcohol breath-test results in contesting their arrests.

State approval of breath-testing machines “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,” O’Donnell wrote.

Cincinnati city prosecutors had argued that drunken-driving defendants had no legal right to the breath-test results from other drivers previously tested on an individual machine. The Department of Health receives the results of tests from alcohol breath-testing machines.

State health officials refused to answer questions today about the ruling.

Mothers Against Drunken Driving and county prosecutors had urged the Supreme Court to overturn the lower court rulings, while criminal defense lawyers lobbied the justices to uphold them.

Today’s court ruling involved the controversial, hand-held Intoxilyzer 8000 breath-testing machine used on the road by officers throughout Ohio. Franklin County agencies, however, do not use the 8000.

Some judges have refused in recent years to accept test results generated by the Intoxilyzer 8000, saying the health department had not proven its scientific reliability and accuracy.

The state health department bought 700 of the $8,000 machines in 2009 for $7 million and distributed them to law-enforcement agencies throughout the state. Only slightly more than half are in use today.

Calesaric said only the Intoxilyzer 8000 sends data electronically to the health department. Similar records cannot be produced electronically for the two older breath-testing machines in use in Ohio, the Intoxilyzer 5000 and the BAC Datamaster, he said. Record from those machines can be output on paper only, Calesaric said.

The State Highway Patrol has a mixture of Intoxilyzer 800 and BAC Datamaster breath-testing machines in use at its posts, said Lt. Craig Cvetan, patrol spokesman.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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