[Cite as Bratenahl v. Osredkar, 2017-Ohio-5811.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104916




                           VILLAGE OF BRATENAHL
                                                         PLAINTIFF-APPELLANT

                                                   vs.

                        MICHAEL OSREDKAR, ET AL.
                                                         DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                  Criminal Appeal from the
                                  Cleveland Municipal Court
                      Case Nos. 2014 TRC 024127 and 2014 TRC 040470

        BEFORE: S. Gallagher, J., Kilbane, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: July 13, 2017
ATTORNEYS FOR APPELLANT

Marco A. Tanudra
Village of Bratenahl Special Prosecutor
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

For Michael Osredkar

Joseph D. Hada
2802 SOM Center Road, Suite #102
Willoughby Hills, Ohio 44094

Kenneth A. Bossin
1392 SOM Center Road
Cleveland, Ohio 44124

For Daniel Evans

Leslie Johns
Hector G. Martinez
The Martinez Firm
4230 State Route 306, Suite 240
Willoughby, Ohio 44094
SEAN C. GALLAGHER, J.:

      {¶1} The village of Bratenahl appeals the dismissal of two consolidated cases.

We reverse the dismissal and remand for further proceedings.

      {¶2} Michael Osredkar was charged with driving under the influence of

alcohol/drugs, in violation of Bratenahl Codified Ordinance 333.01(A)(1)(a); driving

under the influence of alcohol/drugs breath .08-.17, in violation of Bratenahl Codified

Ordinance 333.01(A)(1)(d); and driving in marked lanes in violation of Bratenahl

Codified Ordinance 333.08. Daniel Evans was charged with driving under the influence

of alcohol/drugs, in violation of R.C. 4511.19(A)(1)(a); driving under the influence of

alcohol/drugs breath .17 or greater, in violation of R.C. 4511.01(A)(1)(d); and driving in

marked lanes, in violation of R.C. 4511.25.

      {¶3} Both Osredkar and Evans sought discovery related to the breathalyzer tests

conducted at the time of their arrests, and eventually the trial court ordered the Ohio

Department of Health (“ODH”), the entity responsible for maintaining the breathalyzer

data, to produce “any and all computerized online breath archives, including but not

limited to any and all data for any aspect of the testing process, known as ‘COBRA’ data

for the Intoxilyzer 8000 No. 80-004027[,]” and the “full schema relating to any COBRA

database used in the State of Ohio by the [ODH].” The identified Intoxilyzer 8000 was

the machine upon which both men were tested. After several hearings, the trial court
concluded that the ODH had failed to provide responsive discovery, and over the village’s

objection, all claims against both defendants were dismissed.

       {¶4} The term “COBRA data” (the acronym stands for “the Computerized Online

Breath Archive”) refers to “ a database maintained by ODH that records information

transmitted from each breath-analyzer machine for each breath test performed in the field,

and it also includes personal information of other individuals the machine had tested.”

Cincinnati v. Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, 21 N.E.3d 278, ¶ 8. The schema

is simply a summary description of the data contained in the database — an abstract of the

data within the database. Nothing in the record indicates if the ODH maintains a schema

as part of its records or generates the abstract upon request. There is no dispute in this

case that according to Ilg, a defendant has the ability to seek discovery of the COBRA

data relative to the machine that was used to produce the breath-alcohol concentration

result for the purpose of demonstrating the accuracy of the defendant’s individual test

result. Id. at ¶ 30.

       {¶5} The issue presented in this appeal differs from Ilg.        In this case, the

defendants obtained a court order compelling the ODH to produce any and all COBRA

data and the full schema relating to any database in existence in Ohio that contains

COBRA data — without any explanation from the defendants as to the relevancy of such

a broad request. In Ilg, the issue was limited to the COBRA data as it related to an

individual test result. The trial judge in this case, an experienced and respected jurist,

went to great lengths in a good faith effort to uncover exactly what information was
created or compiled by the ODH. This focus, much at the defense’s urging, led to

discovery orders that went beyond the scope of the Ilg discussion.

       {¶6} ODH attempted to comply. The village provided the defendants copies of

the entire prosecution file, including the citation, police reports, and related forms; the

testing printouts from the Intoxilyzer 8000 used in both cases; and the impaired driver

reports. In addition, the ODH produced the COBRA data for the particular Intoxilyzer

8000 related to each defendant, including all diagnostics, error logs, log-in history repair,

maintenance, service and calibration records, all exception codes and their explanation,

and the software history. The defendants also received training manuals used by the

vendor who produces the Intoxilyzer 8000 machine and the COBRA manuals provided to

the ODH from the vendor.

       {¶7} At the final hearing on the discovery violation, the ODH claimed it had

provided both defendants everything in its possession relating to the COBRA data. The

defense’s expert disagreed and claimed that either the ODH was purposefully deleting the

individual breath-profile information from the database or that ODH’s employees deleted

the information when uploading the data to the ODH’s servers. A breath profile is a

graphical representation of the amount of pressure being blown into the Intoxilyzer 8000,

as measured by the volume in liters per second or minute that reflects how much air is

being expelled into the machine, and the alcohol content as a function of time.

According to the defense’s expert, the breath profile is used to determine if testing errors
occurred. Osredkar and Evans claim that the lack of the breath profiles prejudiced their

ability to defend against the charges.

       {¶8} The ODH responded that the breath profiles for Osredkar’s and Evans’s tests

were not maintained by the ODH because the software feature that required the use of the

breath profiles was not enabled in Ohio. At oral argument, it was suggested that the

feature is now or has been activated in Ohio, but that fact is not part of the record. The

Intoxilyzer 8000 units are sold to various jurisdictions around the country, but the enabled

features are dependent on the individual jurisdiction’s needs and willingness to pay. The

village analogized the Intoxilyzer 8000 features to that of a standard cable television box

— all cable boxes are capable of receiving every channel, but only those channels

purchased are unlocked for the end user. Instead of relying on the breath profiles to

determine sampling errors, the ODH has adopted other prophylactic measures.

       {¶9} Not content to rely on the missing breath profiles alone, and as the basis for

the motion to dismiss, Osredkar and Evans claim that there is more than one database

containing COBRA data (only one was allegedly produced, although only one was

referenced in the order to compel), the data produced lacked tamper-stamps to prove to

the defense’s expert that the data was authentic, and the schema received was an extract

from the schema (so the description of the database, as schema was defined, was actually

an abstract of an abstract). The expert then claimed that the ODH employee responsible

for maintaining the COBRA data was not versed in the right computer programming

language to even know what information was stored in the databases. The defense
expert opined that the employee, who was responsible for uploading information stored

on the individual Intoxilyzer 8000 machines to the ODH’s main servers, could have

deleted the breath-profile data in the uploading process. The individual Intoxilyzer 8000

machines have an extremely limited, onboard storage capacity, only about 8 megabytes,

which for the sake of perspective, is equivalent to the size of between 1 and 6 standard

photographic files.1 Periodic uploads to the ODH’s servers were required to preserve

information. Once it is verified that the data is uploaded to the ODH’s servers, the

individual Intoxilyzer 8000’s memory is purged.

       {¶10} With respect to the lack of tamper-stamps, which the defense expert

believed necessary to prove that the state was not altering the data, no evidence was

presented to substantiate the allegations that the ODH willfully tampered with the

discovery information produced. “Mere speculation does not meet the accused’s burden

to show that the withheld evidence is material.” State v. Rivas, 121 Ohio St.3d 469,

2009-Ohio-1354, 905 N.E.2d 618, ¶ 14.

       Pursuant to a Crim.R. 16(B)(1)(c) discovery request, when a prosecutor has
       provided a written transcript that purports to accurately reflect data stored
       on a computer hard drive, a court may not order an examination of the
       computer hard drive unless the defense makes a prima facie showing that
       the state has provided false, incomplete, adulterated, or spoliated evidence.




       1
            Number of pictures that can be stored on a memory device,
https://kb.sandisk.com/app/answers/detail/a_id/69/~/number-of-pictures-that-can-be-stored-on-a-memo
ry-device (last visited June 27, 2017) (the file size of a standard photograph, in the most common file
format for consumer cameras, ranges from 1.2 MB to 6.6 MB).
Id. at syllabus. The same principle applies to the COBRA data. The ODH averred at

several hearings that the discovery provided accurately reflected the data it maintained.



       {¶11} Only Evans attempted to distinguish Rivas. Evans claims that the defense

has presented a prima facie showing that the state provided incomplete or spoliated

evidence because the expert claimed the lack of the tamper-stamps indicated the data

could be altered. This was the specific argument overruled in Rivas. The defendant’s

expert in Rivas explained that he could establish the falsification of the state’s discovery

only by examining the original source of the discovery material. Id. at ¶ 17. That

argument was rejected because “speculation and conjecture regarding the possibility of

material evidence” does not demonstrate any inaccuracy in the discovery that the state

provided. Id. Nevertheless, under the defense’s theory, the village deleted the breath

profiles before the discovery order was issued. This raises the specter of analysis not

considered by the trial court.

       {¶12} The trial court granted both defendants’ motions to dismiss based on

allegations that the village failed to produce discovery in its possession under Crim.R.

16. 2 The trial court, however, did not consider any other sanction besides dismissal.

The motions to dismiss did not even discuss another sanction from which the trial court



       2
          Our jurisdiction over the notice of appeal is based on the village’s right to appeal “any
decision of the trial court in a criminal case” that grants a motion to dismiss “all or any part of an
indictment.” R.C. 2945.67. A decision to dismiss any part of the indictment is a final appealable
order because it affects a substantial right and prevents a judgment on those charges. In re S.J., 106
could choose. It is well settled that “a trial court must inquire into the circumstances

surrounding a discovery rule violation and, when deciding whether to impose a sanction,

impose the least severe sanction that is consistent with the purpose of the rules of

discovery.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶

42, citing Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987). Although

we understand the trial court’s frustration, dismissal of all charges was not the least

severe sanction.

       {¶13} For example, in Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, 21 N.E.3d 278, the

trial court’s decision to suppress the evidence from the Intoxilyzer 8000 upon the state’s

failure to produce the data was affirmed.           Suppression of the test results from the

breathalyzer equipment, therefore, satisfied the purposes of Crim.R. 16. Further, the

Ohio Supreme Court concluded that the defendant had demonstrated the necessity of the

information in order to evaluate the reliability of his particular test because the ODH did

not provide any evidence suggesting that the COBRA data was not relevant. Id. at ¶ 30.

In this case, even if a discovery violation exists, the trial court erred by dismissing all the

charges when the violation only impacted one aspect of the state’s evidence for each

defendant: the individual test results from the Intoxilyzer 8000.3



Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 13, citing R.C. 2505.02(B).
       3
         Evans and Osredkar argue that the length of the discovery dispute alone demonstrates that
dismissal of all charges was proper, but neither provided any citation to authority to support such a
proposition of law. App.R. 16(A)(7).
       {¶14} We agree with the village that the dismissal of all claims was not the least

restrictive sanction available consistent with the purpose of discovery, if this indeed was a

discovery violation.     Other sanctions, including but not limited to, the possible

suppression of the disputed evidence were available, but not considered. See Ilg; State v.

Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752 (an offender may move

to suppress an alcohol-content test based on noncompliance with regulations covering the

maintenance and operation of testing equipment).

       {¶15} Notwithstanding, the undisputed evidence demonstrated that the village

did not commit a discovery violation.          According to the defense’s expert, the

breath-profile data, the missing discovery forming the basis of the dismissal, was deleted.

 When considering whether a discovery violation occurred, courts must consider three

factors: (1) whether the failure to disclose was willful; (2) whether foreknowledge of the

undisclosed material would have benefitted the defendant in trial preparation; and (3)

whether the accused was prejudiced by the late disclosure. Darmond, 135 Ohio St.3d

343, 2013-Ohio-966, 986 N.E.2d 971, at ¶ 35, citing State v. Parson, 6 Ohio St.3d 442,

453 N.E.2d 689 (1983). These factors simply do not apply in this case because there is

no dispute that the information sought by the defense does not exist. The defense’s

expert opined that the information was deleted.

       {¶16} The proper legal consideration, therefore, is not whether the village

committed a discovery violation — one cannot expect a party to turn over that which was

irrevocably deleted before the case was initiated — but whether the failure to preserve
evidence for trial rises to the level of a due process violation. This analysis, of course,

depends on whether the lost or destroyed evidence involves “material exculpatory

evidence” or “potentially useful evidence.” State v. Daniels, 10th Dist. Franklin No.

14AP-326, 2015-Ohio-2649, ¶ 17, citing State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865, ¶ 73. “Evidence is constitutionally material when it

possesses ‘an exculpatory value that was apparent before the evidence was destroyed, and

[is] of such a nature that the defendant would be unable to obtain comparable evidence by

other reasonably available means.’” Id., citing Powell at ¶ 74. If, on the other hand,

“the evidence in question is not materially exculpatory, but only potentially useful, the

defendant must show bad faith on the part of the state in order to demonstrate a due

process violation.” Id., citing Powell at ¶ 77.

       {¶17} The Intoxilyzer 8000 machines were capable of producing and storing a

breath profile, but the ODH did not purchase that function from the vendor. Further,

when the ODH uploaded data from the individual machines to the ODH servers, if the

breath profiles were saved on the individual machine, the ODH did not retain the

information because, as a matter of policy, Ohio uses other mechanisms to ensure the

accuracy of the individual test results. In situations in which the accused asserts that the

government withheld or destroyed evidence, the Ohio Supreme Court has held that the

offender bears the burden of establishing his case. The defendant must show that the

state acted in bad faith in destroying potentially useful evidence. Rivas, 121 Ohio St.3d

469, 2009-Ohio-1354, 905 N.E.2d 618, at ¶ 14, citing State v. Geeslin, 116 Ohio St.3d
252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 14. The defendant must also prove that the

withheld evidence is both favorable and material. Id., citing State v. Davis, 116 Ohio

St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 338-339.

       {¶18} This burden was not met because the defendants framed this issue solely

under Crim.R. 16 and the ODH’s failure to produce all information responsive to the

defendants’ overly broad requests. A discovery violation under Crim.R. 16 occurs when

there is evidence demonstrating that the state failed to produce documents that should

have been produced in discovery. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986

N.E.2d 971, at ¶ 1. In this case, the village consistently certified to the trial court that it

did not possess the requested documents. This is not a discovery violation case. The

appropriate inquiry is whether the failure to maintain the requested information rose to the

level of a due process violation. The defendants did not properly frame the issue for the

trial court’s consideration, and we must reverse.

       {¶19} It cannot be ignored that Osredkar and Evans, in seeking information neither

used nor maintained by the ODH, appear to be delving into territory specifically

foreclosed by Ohio law. Whether agreed with or not, the Ohio Supreme Court’s decision

in State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), remains valid. Defendants

are precluded “from presenting expert testimony attacking the general scientific reliability

of breath-alcohol tests that have been conducted in accordance with methods approved by

the director of ODH.” Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, 21 N.E.3d 278, at ¶ 2,

citing Vega. The ODH has made a general policy decision that the breath profiles are not
necessary in Ohio because other methods are used to ensure the accuracy of the test

results, methods that neither defendant challenged nor even discussed.

       {¶20} Osredkar and Evans counter that in a few other cases, defendants received

breath profiles in discovery. They conclude this necessarily means that the ODH has the

information but refused to provide it to them. The defendants’ conclusion does not

necessarily follow, and in fact, the opposite conclusion is equally tenable — the ODH

turns over all information in its possession when called upon to do so, even if the ODH

does not normally maintain the information in the ordinary course of business. More to

the point, just because the evidence may exist does not mean that it does in this particular

case; and even if it does exist, the defendants must still demonstrate the discovery is both

favorable and material. The defense expert merely opined that the breath profiles could

potentially demonstrate inaccurate results.        Supposition is not enough, especially

considering the fact that the ODH adopted other measures to ensure the accuracy of the

individual tests that neither defendant has contested at this point.

       {¶21} Finally, nothing in the record indicates how all COBRA data from every

Intoxilzer 8000 in the entire state of Ohio would be necessary for the defendants to

challenge the reliability of the individual tests conducted on the particular Intoxilyzer

8000 used by the village. The trial court compelled the ODH to produce any and all

COBRA data, which is not limited to the individual Intoxilyzer 8000 at the core of this

dispute, and a full schema relating to any COBRA data collected in the state of Ohio.

The Ohio Supreme Court unambiguously held that anyone
       accused of an offense involving an Intoxilyzer 8000 machine may challenge
       the accuracy and credibility of a breath test by showing that the
       breath-analyzer machine failed to operate properly at the time of testing or
       that the results had not been analyzed in accordance with methods approved
       by the director of ODH.

Ilg, at ¶ 4. However, the scientific reliability of the Intoxilyzer 8000 machine in general

is off limits. Id., citing Vega. It seems that the only reason to seek and analyze the data

generated from every machine in Ohio is to question the scientific reliability of the

machines in general, in which case the information sought by the defense in this case goes

well beyond testing the reliability of the individual test results. Unless the defendants are

able to present specific evidence demonstrating how any and all information stored from

every Intoxilyzer 8000 in the state of Ohio is even remotely relevant to testing the

reliability of their individual test results, the discovery order is overly broad on its face

and cannot be enforced.

       {¶22} We acknowledge and can appreciate the considerable amount of time the

trial court dedicated to ensuring the full flow of discovery in this case.          We are

constrained to follow the parameters set out by the Ohio Supreme Court in Ilg, Vega, and

Darmond. Following those principles, we are compelled to reverse. The trial court did

not consider whether the defendants were able to demonstrate that the missing discovery

material was material and favorable to the accused and whether the state acted in bad

faith in withholding or destroying the data. As a result, we reverse the decision of the

trial court and remand for further proceedings consistent with our analysis. Our decision,
however, should not be interpreted as deciding whether a due process violation occurred

— we cannot render a decision one way or the other within the scope of this appeal.

       {¶23} We reverse and remand.

       It is ordered that appellant recover from appellees costs herein taxed.     The

court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution. Case remanded to the trial court for further

proceedings consistent with this opinion.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR
