         [Cite as Cincinnati v. Neff, 2014-Ohio-2026.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



CITY OF CINCINNATI,                                :     APPEAL NO. C-130411
                                                                    C-130511
        Plaintiff,                                 :                C-130512
                                                         TRIAL NO. 12TRC-25896
  vs.                                              :

ALLISON NEFF,                                      :       O P I N I O N.

    Defendant-Appellee,                            :

  and                                              :

OHIO DEPARTMENT OF HEALTH,                         :

        Appellant.                                 :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 14, 2014


John P. Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Christopher
Liu, Assistant City Prosecutor, for Plaintiff City of Cincinnati,

Marguerite Slagle and Steven R. Adams, for Defendant-Appellee,

Michael DeWine, Ohio Attorney General, and Melissa L. Wilburn, Assistant Attorney
General, for Appellant Ohio Department of Health.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Presiding Judge.


       {¶1}       Appellant Ohio Department of Health (the “ODH”) appeals the

judgment of the Hamilton County Municipal Court denying a motion to quash a

subpoena in a prosecution for operating a motor vehicle with a prohibited breath-

alcohol concentration.

                                   Neff’s Subpoena

       {¶2}       In 2012, defendant-appellee Allison Neff was charged with driving

with a prohibited breath-alcohol concentration and driving while impaired. During

discovery, Neff sought a number of documents in the possession of the ODH relating

to the performance of the Intoxilyzer 8000, the machine the city of Cincinnati had

used to measure her breath-alcohol concentration.             Neff sought the ODH’s

computerized online breath archives compiled for the specific Intoxilyzer 8000 used

in her test, as well as correspondence, maintenance records, and other material

related to the machine. When she did not receive all of the requested material from

the ODH, she filed a subpoena duces tecum.

       {¶3}       The ODH filed a motion to quash the subpoena, asserting, among

other things, that production of the requested items would be unduly burdensome

and oppressive. After hearing extensive oral argument concerning the subpoena, the

trial court denied the motion to quash. The ODH now appeals.

                       Appealabilty of the Trial Court’s Order

       {¶4}       As a threshold matter, we must address Neff’s argument that the

trial court’s denial of the motion to quash was not a final, appealable order and that

this court is therefore without jurisdiction to entertain the appeal.

       {¶5}       In general, discovery orders are deemed to be interlocutory in

nature and therefore not immediately appealable. See, e.g., State v. South, 5th Dist.

Fairfield No. 04 CA 38, 2004-Ohio-5073, ¶ 25. But the issuance of a subpoena is a


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                     OHIO FIRST DISTRICT COURT OF APPEALS



provisional remedy under R.C. 2505.02(A)(3). State v. Jeffery, 2d Dist. Montgomery

No. 24850, 2012-Ohio-3104, ¶ 11. And because the denial of a motion to quash a

subpoena both determines the action with respect to the provisional remedy and

prevents meaningful and effective appellate review after final judgment, it is a final

and appealable order under R.C. 2505.02(B)(4). Id.; see Scott Process Systems, Inc.,

v. Mitchell, 5th Dist. Stark No. 2012CA00021, 2012-Ohio-5971, ¶ 23.

       {¶6}       Accordingly, the appeal in the instant case arises from a final,

appealable order, and this court has jurisdiction to proceed.

                                The Motion to Quash

       {¶7}       In its sole assignment of error, the ODH argues that the trial court

erred in overruling its motion to quash the subpoena and in ordering the production

of the material relating to the Intoxilyzer 8000.

       {¶8}       When deciding a motion to quash a subpoena under Crim.R. 17,

the trial court must conduct an evidentiary hearing. In re Subpoena Duces Tecum

Served upon Attorney Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, 796 N.E.2d 915,

paragraph one of the syllabus; Cincinnati v. Ilg, 1st Dist. Hamilton No. C-120667,

2013-Ohio-2191, ¶ 8.     At the hearing, the proponent of the subpoena bears the

burden of demonstrating that the subpoena is not unreasonable or oppressive by

showing (1) that the subpoenaed documents are evidentiary and relevant; (2) that

they are not otherwise reasonably procurable in advance of trial by due diligence; (3)

that the proponent cannot properly prepare for trial without production and

inspection of the documents and that the failure to obtain the documents may tend

to unreasonably delay the trial, and (4) that the subpoena is made in good faith and

not intended as a general “fishing expedition.” Id. An appellate court generally

applies an abuse-of-discretion standard in reviewing a trial court’s decision

concerning a motion to quash a subpoena. State v. Strickland, 183 Ohio App.3d 602,

2009-Ohio-3906, 918 N.E.2d 170, ¶ 37 (8th Dist.).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}       In the case at bar, the trial court erred in failing to conduct an

evidentiary hearing. Although the court conducted oral argument with respect to the

subpoena, it did not receive sworn testimony or other material of evidentiary value.

Thus, on the state of the record before us, we cannot say whether the court’s

determination on the merits of the motion to quash was correct.

                                     Conclusion

       {¶10}      Because Neff was not required to meet her burden of

demonstrating the propriety of the subpoena, we sustain the assignment of error.

The judgment is reversed and the cause is remanded for further proceedings in

accordance with law.

                                               Judgment reversed and cause remanded.



DINKELACKER and FISCHER, JJ., concur.




Please note:
       The court has recorded its own entry this date.




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