On October 1, 2014, the Ohio Supreme Court issued a decision in The City of Cincinnati v. ILG, ruling that an individual accused of an offense involving a breath-analyzer test may challenge the accuracy of the specific results obtained or may challenge the instrument’s proper functioning at the time the results were obtained.  The fact that the make or model of a breath-analyzer was approved by the Ohio Department of Health as an acceptable instrument to test breath-alcohol concentration is irrelevant to an individual’s ability to challenge specific results.

If requested by the accused in discovery, a city is required to produce relevant information regarding the specific breath-analyzer instrument used at the time of the incident.

This case arose from the arrest of Daniel Ilg, who was charged with operating a motor vehicle while under the influence of alcohol.  An Intoxilyzer 8000 machine measured Mr. Ilg’s breath-alcohol concentration at an amount beyond what was permitted by law. 

In an attempt to prevent the results of his breath test from being considered in his case, Mr. Ilg sought to challenge the accuracy and credibility of his results.  Mr. Ilg requested the City to provide him with copies of data from the specific Intoxilyzer 8000 instrument used to produce his results, as well as data from other individuals who were tested by the same instrument, and records regarding its repair, maintenance, and software for three years prior to and three months following his arrest. The City refused to provide this information due to the time-consuming nature, technological difficulties, and high cost of producing copies pertaining to his requests.

The trial court found that Mr. Ilg had the right to challenge the reliability of his breath test and, as a result, had a right to the information he requested.  Because of the City’s refusal to comply, the trial court excluded his breath-test results from evidence.  The appellate court and the Ohio Supreme Court agreed.

The information requested and required to be produced must expressly target evidence related solely to the instrument used to perform the breath test in question.

This case made it explicitly clear that an individual may not challenge the accuracy or scientific reliability of breath-analyzer instruments in general.  This is because the legislature has delegated to the Ohio Department of Health the authority to adopt appropriate tests and procedures to chemically analyze and ascertain breath-alcohol concentrations.

Instead, what an individual may challenge is the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific results conducted during a specific time of testing in a pending case. For example, an accused may attempt to prove that a particular device failed to operate properly at the time of testing.  If the city believes that any of the information requested is irrelevant to demonstrating the inaccuracy of the breath test during the time of testing, a city is not foreclosed from objecting to the requests.  However, the city must produce any information that a court deems relevant.

You can read this case by clicking here.