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OVI Suspects Have Breathalyzer Data Defense: Ohio Sup. Ct.

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By Brett Snider, Esq. on October 02, 2014 3:14 PM

Ohio OVI suspects got a win from the state's Supreme Court this week when justices affirmed that alcohol breath-test evidence could be thrown out if the state doesn't give the defendant certain data about the breath-testing device itself.

On Wednesday, the Ohio Supreme Court ruled unanimously that a court could exclude breath-test evidence from a drunken driving case (which Ohio calls "operating a vehicle under the influence," or OVI) if prosecutors failed to provide the defendant with data on the functionality and reliability of the device used in the case. In the case at hand, the device was called the Intoxilyzer 8000, and the Court agreed that defendant had the right to know if the particular device was reliable.

What can future OVI suspects learn from this case?

No COBRA Data, No Intoxilyzer Evidence

There are various ways to challenge an alcohol breath test, but one of the most common is to challenge the reliability of its results. In Cincinnati v. Ilg, the Ohio Supreme Court looked at how one man's request for data relevant to the reliability of the breath test used on him was ignored, and whether it was proper to then throw that evidence out.

The Ohio High Court breaks it down like this:

  1. You can't challenge the general reliability of the Intoxilyzer 8000. DUI attorneys often try (with limited success) to challenge the general scientific reliability of alcohol breath-testing technology in providing evidence of intoxication. The Ohio Supreme Court decided that this argument won't hold water in court.
  2. You can challenge the specific reliability of the Intoxilyzer device used on you. That means you can request data on how often the device was calibrated, maintained, cleaned, tested, etc. This is often collected as COBRA data (Computerized Online Breath Archives).
  3. Denying COBRA data to a defendant may be grounds to exclude breath-test evidence. If defendant subpoenas COBRA data (or similar data on the reliability of a specific device) and the city or state doesn't provide it, a court can prohibit any evidence from that device from being used.

In short, if the state doesn't pony up the COBRA data on the Intoxilyzer, Breathalyzer, or whatever device is used, the prosecution may have to prove intoxication without any such evidence.

Getting the Data

According to The Columbus Dispatch, this data is "relatively easy and inexpensive to provide" despite the state's hemming and hawing. OVI suspects will still probably need an OVI attorney's help though, as getting the data will most likely require a subpoena.

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