In most OVI cases, OVI/DUI Defense Attorneys find themselves locking horns with prosecutors across the State of Ohio. However, a new ploy by the Ohio Department of Health has left defense attorneys on the sideline to watch what can best be described as a battle between bickering siblings.
The State of Ohio moved to quash (declare void) a subpoena issued to the State of Ohio by the State of Ohio.
In Cincinnati v. Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, the Supreme Court ruled that a defendant may challenge the accuracy, competence, admissibility, relevance, authenticity, or credibility of his breath test results, regardless of the Ohio Department of Health's approval of the machine for use in breath testing. In the course of defending against a charge of OVI, the Supreme Court declared that the defense is entitled to the information held by the state to present their case. Amongst other information, the defense in Ilg sought communications between the Ohio Department of Health, the Ohio Department of Public Safety, the City of Cincinnati and the manufacturer of the Intoxilyzer 8000 regarding how the machine is programmed to report a breath result and the problems the machine has in reporting results accurately. This data could determine whether the machine is programmed to fairly report breath results or whether it is skewed in favor of the police.
The credibility of this test is crucial in an OVI case because the test result creates a presumption of guilt. This presumption of guilt is clearly antithetical to the presumption of innocence on which our justice system was founded. If you are going to be presumed guilty, the least the government could do is give you the information to present your case. With a presumption of guilt and no information to dispute it, the game is rigged for the State to win every time. This is the scenario the Supreme Court meant to fix.
Empowered by the decision in Cincinnati v. Ilg, OVI defendants across Ohio requested that the State of Ohio, represented by the prosecutor's office, turnover this crucial information. In turn, the prosecutors for the State of Ohio had to request this information from their sister in state government, the State of Ohio's Department of Health. The State's Department of Health is, in fact, the agency that controls this information.
The sister state agency did what you could only expect siblings to do: Fight. Even though it was a fellow representative of Ohio that issued the subpoena, the Ohio Department of Health fought tooth and nail and refused to turn over the requested information. This strange situation leaves the citizens of Ohio asking its government, "What are you trying to hide?"
Joseph D. Hada is an Associate Attorney with The Law Offices of Saia & Piatt, Inc. Based in Cleveland, he represents clients in Ohio OVI, criminal, and traffic cases. Contact the firm to schedule a free consultation if you need the defense of an experienced lawyer.