[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cincinnati v. Ilg, Slip Opinion No. 2014-Ohio-4258.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-4258
            THE CITY OF CINCINNATI, APPELLANT, v. ILG, APPELLEE.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
    it may be cited as Cincinnati v. Ilg, Slip Opinion No. 2014-Ohio-4258.]
Criminal     procedure—Discovery—Subpoenaed              data    from    breath-analyzer
        machine.
     (Nos. 2013-1102—Submitted June 11, 2014—Decided October 1, 2014.)
              APPEAL from the Court of Appeals for Hamilton County,
                           No. C-120667, 2013-Ohio-2191.
                               ____________________
                              SYLLABUS OF THE COURT
The approval of a breath-analyzer machine by the director of the Ohio
        Department of Health as a device to test breath-alcohol concentration does
        not preclude an accused from challenging the accuracy, competence,
        admissibility, relevance, authenticity, or credibility of specific test results
        or whether the specific machine used to test the accused operated properly
        at the time of the test.
                               ____________________
                              SUPREME COURT OF OHIO




       O’DONNELL, J.
       {¶ 1} The city of Cincinnati appeals from a judgment of the First District
Court of Appeals that affirmed a trial court order to exclude evidence obtained
from an Intoxilyzer 8000 breath-analyzer machine as a sanction for its failure to
comply with a discovery order directing the Ohio Department of Health (“ODH”)
to provide Daniel Ilg with its computerized online breath archives data, also
known as “COBRA data,” consisting of information transmitted by the machine
to ODH for each breath test it performed.
       {¶ 2} In accordance with R.C. 4511.19(D)(1)(b), ODH approved the
Intoxilyzer 8000 as a reliable testing device for determining the breath-alcohol
concentration of an individual suspected of driving while under the influence of
alcohol. In State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), we
precluded an accused 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.
       {¶ 3} In this case, Ilg sought COBRA data from the specific Intoxilyzer
8000 machine that tested his breath in order to challenge whether it operated
properly on the day of his arrest in an effort to establish that the test results in his
case were inaccurate—not to question the scientific reliability of Intoxilyzer 8000
machines in general.
       {¶ 4} Every person 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. In this case, Ilg sought discovery of relevant, admissible
evidence, and the trial court ordered the city to produce it, but because neither the
city nor ODH complied with the order to produce, the trial court excluded the




                                           2
                                January Term, 2014




results of his breath test, and the court of appeals upheld that decision. Here, the
sanction is warranted, and we affirm the judgment of the appellate court.
                          Facts and Procedural History
       {¶ 5} In the early morning hours of October 22, 2011, Daniel Ilg lost
control of his vehicle while driving on Beekman Street in Cincinnati, Ohio, and
struck a fence, a sign, and a pole. Officer Terry Jacobs, who investigated the
accident, arrested Ilg for operating a motor vehicle while under the influence of
alcohol.   At the police station, Ilg submitted to a breath-alcohol test.       An
Intoxilyzer 8000 machine, serial number 80-004052, measured his breath-alcohol
concentration at 0.143 grams of alcohol per 210 liters of breath, beyond the
amount permitted by law of 0.08 grams of alcohol per 210 liters of breath.
       {¶ 6} As a result of the Intoxilyzer 8000 results, the city charged Ilg with
operating a vehicle while under the influence of alcohol in violation of R.C.
4511.19(A)(1)(a), operating a vehicle with a prohibited level of alcohol in his
breath in violation of R.C. 4511.19(A)(1)(d), and failing to maintain control of his
vehicle in violation of R.C. 4511.202.
       {¶ 7} Ilg entered a plea of not guilty in the Hamilton County Municipal
Court and moved to suppress the results of his breath test. He also sought
discovery of the subject test and instrument-check printouts and forms, diagnostic
and calibration checks, maintenance, service, and repair records, radio frequency
interference test records, and any computerized or downloaded information or
data from the specific Intoxilyzer 8000 machine used to test him. He also sought
data from that machine not only as it related to his test, but also for three years
prior to his arrest and for three months following it.
       {¶ 8} When the city did not produce these records, he subpoenaed Mary
Martin, the program administrator for alcohol and drug testing at ODH. The
subpoena requested that Martin produce “[a] copy of any and all records
maintained by the Ohio Dept. of Health and the Ohio Depart. of [Public] Safety



                                          3
                             SUPREME COURT OF OHIO




relating to the Intoxilyzer 8000, serial number 80-004052, * * * including but not
limited to: a. Any and all computerized online breath archives data, also known as
‘COBRA’ data.” “COBRA data” 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.
       {¶ 9} Ilg also subpoenaed records related to the machine’s log-in history,
repair and maintenance, radio frequency interference certification, and software
changes or modifications, as well as any communications regarding the
Intoxilyzer 8000 between ODH and the city of Cincinnati, the Ohio Department
of Public Safety, and the manufacturer of the breath-analyzer machine. None of
the parties—the city, ODH, or Martin—responded to the subpoena.
       {¶ 10} Ilg then moved for sanctions and sought to exclude the results of
his breath test because of the failure to comply with his discovery request and the
subpoena he had issued. At a hearing held on August 27, 2012, Martin testified
that the COBRA data is stored in read-only format and cannot be released without
redacting the personal information of other test subjects. She asserted that ODH
lacked the personnel and ability to copy the database and stated, “[A]t this time
we don’t have the ability to give the database out.”
       {¶ 11} As a result of that hearing, the court ordered ODH to disclose the
records requested in the subpoena and advised the city that it would grant the
motion for sanctions if it failed to produce the evidence.
       {¶ 12} After the court’s deadline for compliance had passed, Ilg again
moved for sanctions, arguing that the city had not obeyed the court’s order to
disclose, and he requested the exclusion of the breath-test results as a sanction. At
another hearing held on September 25, 2012, Martin admitted that she had not
provided the COBRA data, claiming that ODH lacked the personnel and
technology to copy the database, that it would require an additional employee and




                                          4
                                 January Term, 2014




approximately $100,000 to produce a copy that could be released, and that even
with those additional resources, the COBRA data would be technologically
difficult to produce.
         {¶ 13} The trial court found that Ilg had the right to challenge the
reliability of his breath test but could not without the COBRA data generated by
the Intoxilyzer 8000 that tested him. The trial court therefore excluded the breath-
test results from evidence.
         {¶ 14} On the city’s interlocutory appeal, the appellate court determined
that the court had not abused its discretion in ordering COBRA data to be
produced, because Ilg needed it for trial preparation and had requested it in good
faith, and the court found that it was relevant and that Ilg could not have obtained
it without ODH cooperation. The appellate court further determined that Ilg had
not sought to challenge the scientific reliability of all Intoxilyzer 8000s, but rather
sought to discredit only the particular breath analyzer that Cincinnati Police used
to test his breath-alcohol concentration.        It also noted that a city is an
instrumentality of the state and thus rejected the argument that the city could not
be sanctioned for a discovery violation attributable to ODH. It concluded that
exclusion of the breath-test result was reasonably calculated to protect Ilg’s right
to a fair trial.
         {¶ 15} We accepted the city’s discretionary appeal on one proposition of
law: “State v. Vega prohibits defendants in OVI cases from making attacks on the
reliability of breath testing instruments, thus a defendant cannot compel any party
to produce information that is to be used for the purpose of attacking the
reliability of the breath testing instrument.”
                               Claims of the Parties
         {¶ 16} The city maintains that COBRA data is not discoverable in a
criminal case, because it does not fall within the types of items that Crim.R. 16
requires the prosecution to produce.       It asserts that the COBRA data is not



                                           5
                               SUPREME COURT OF OHIO




material to guilt or punishment and that there is no reasonable probability that
producing it would alter the outcome of Ilg’s trial, because pursuant to State v.
Vega, 12 Ohio St.3d 185, 186, 465 N.E.2d 1303, this type of evidence is
inadmissible for purposes of making a general attack on the reliability of a breath-
testing machine. According to the city, the documents sought in discovery are not
relevant to challenging the validity of Ilg’s breath test, but rather relate to every
person who had taken a breath test on that particular Intoxilyzer 8000 machine,
and it urges that he has not demonstrated how data from other tests affect the
validity of the results of his test.
        {¶ 17} The city also contends that because evidence relevant to attacking
the reliability of a breath-analyzer machine is not discoverable pursuant to
Crim.R. 16, it cannot be the subject of a subpoena intended to provide additional
discovery beyond that permitted by Crim.R. 16. And it maintains that compliance
with the subpoena was impossible for ODH, and in any case, COBRA data is not
relevant and Ilg could prepare for trial without it, as he sought only to engage in
“a fishing expedition.”
        {¶ 18} Ilg contends that the city has failed to preserve for appeal any
argument that the COBRA data was not discoverable pursuant to Crim.R. 16, that
the data is inadmissible as not material to guilt or innocence, or that he abused
Crim.R. 17 by issuing a subpoena to expand the scope of discovery. He maintains
that COBRA data is discoverable pursuant to Crim.R. 16(B) because it is a
relevant document, a tangible item, or the result of a scientific test. And it is not
inadmissible pursuant to State v. Vega, Ilg argues, because he sought the COBRA
data to challenge the reliability of the machine that tested him, not the general
scientific reliability of all Intoxilyzer 8000s.
        {¶ 19} Ilg further asserts that he has not abused Crim.R. 17 to expand the
scope of discovery, but only issued the subpoena after the city failed to comply
with his demand for discovery. And he urges that compliance with the subpoena




                                            6
                                January Term, 2014




was not oppressive, because there is no evidence supporting the claim that it
would be too costly to produce the COBRA data and ODH’s online database
shows that this machine has tested only 53 individuals, with more than 10 percent
tested twice due to various errors.
       {¶ 20} Accordingly, this case presents one narrow issue: whether an
accused defending a charge that he operated a motor vehicle with a prohibited
level of alcohol in his breath is precluded from attacking the reliability of the
specific breath-testing machine that measured his blood-alcohol concentration.
                                 Relevant Statutes
       {¶ 21} R.C. 4511.19(D)(1)(b) governs the admissibility of alcohol-test
results and provides in relevant part:


               In any criminal prosecution or juvenile court proceeding for
       a violation of division (A) or (B) of this section or for an
       equivalent offense that is vehicle-related, the court may admit
       evidence on the concentration of alcohol, drugs of abuse,
       controlled substances, metabolites of a controlled substance, or a
       combination of them in the defendant’s whole blood, blood serum
       or plasma, breath, urine, or other bodily substance at the time of
       the alleged violation as shown by chemical analysis of the
       substance withdrawn within three hours of the time of the alleged
       violation. * * *
               The bodily substance withdrawn under division (D)(1)(b)
       of this section shall be analyzed in accordance with methods
       approved by the director of health by an individual possessing a
       valid permit issued by the director pursuant to section 3701.143 of
       the Revised Code.




                                         7
                            SUPREME COURT OF OHIO




In turn, R.C. 3701.143 provides that the director of ODH


       shall determine, or cause to be determined, techniques or methods
       for chemically analyzing a person’s whole blood, blood serum or
       plasma, urine, breath, or other bodily substance in order to
       ascertain the amount of alcohol, a drug of abuse, controlled
       substance, metabolite of a controlled substance, or combination of
       them in the person’s whole blood, blood serum or plasma, urine,
       breath, or other bodily substance. The director shall approve
       satisfactory techniques or methods, ascertain the qualifications of
       individuals to conduct such analyses, and issue permits to qualified
       persons authorizing them to perform such analyses.


       {¶ 22} Pursuant to this authority, ODH promulgated Ohio Adm.Code
3701-53-02(A)(3), approving the Intoxilyzer 8000 as an evidential breath-testing
instrument for use in determining the concentration of alcohol in a person’s breath
for purposes of R.C. 4511.19.
       {¶ 23} Construing substantively similar former versions of these statutes
in State v. Vega, 12 Ohio St.3d 185, 188, 465 N.E.2d 1303, we noted that the
General Assembly had “legislatively resolved the questions of the reliability and
relevancy of intoxilyzer tests.” The court explained:


       “[The judiciary must recognize] the necessary legislative
       determination that breath tests, properly conducted, are reliable
       irrespective that not all experts wholly agree and that the common
       law foundational evidence has, for admissibility, been replaced by
       statute and rule; and that the legislative delegation was to the
       Director of Health, not the court, [of] the discretionary authority




                                         8
                                January Term, 2014




       for adoption of appropriate tests and procedures, including breath
       test devices.”


(First bracketed insertion sic.) Id. at 188-189, quoting State v. Brockway, 2 Ohio
App.3d 227, 232, 441 N.E.2d 602 (1981). Because the legislature provided for
the admissibility of intoxilyzer tests if analyzed in accordance with methods
approved by the director of ODH, an accused may not present expert testimony
attacking the general scientific reliability of approved test instruments. Id. at 189.
But we also noted that Vega did not assert any claim of abuse of discretion by the
director of ODH. Id. at 187, fn. 2.
       {¶ 24} Nonetheless, in State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d
689 (1984), we recognized that although an accused may not challenge the
general accuracy and scientific reliability of the test procedure selected by ODH,
the accused “may still challenge the accuracy of his specific test results.” Tanner
concerned the constitutionality of a former version of R.C. 4511.19(A)(2) that
established a per se offense for driving with a prohibited blood-alcohol
concentration. The court upheld the statute and explained that it did not impose a
conclusive presumption of guilt, because the accused could challenge the
accuracy of his test results and “[t]he jury may consider those specific test results,
and all other relevant evidence, in ascertaining whether the state has shown
beyond a reasonable doubt that the defendant has violated the statute.” Id.
       {¶ 25} Similarly, in Columbus v. Taylor, 39 Ohio St.3d 162, 163, 529
N.E.2d 1382 (1988), we noted that “[i]t is well-established that a defendant may
challenge the accuracy of his specific test results.” (Emphasis sic.) There, we
concluded that the trial court had not abused its discretion by excluding an expert
report giving the results of simulated testing of the accused using a different BAC
Verifier machine from the one police used to test his breath. But in doing so, we
emphasized that the expert had been allowed to testify that breath-alcohol



                                          9
                              SUPREME COURT OF OHIO




concentration test results can be inaccurate due to burping that contaminates the
breath sample. Id. at 164-165.
       {¶ 26} Our decision in State v. French, 72 Ohio St.3d 446, 650 N.E.2d
887 (1995), concerned the procedure for attacking the admissibility of a breath-
test result based on the failure to substantially comply with Ohio Department of
Health regulations on chemical testing.         The court held that the failure to
“challenge the admissibility of the chemical test results through a pretrial motion
to suppress waives the requirement on the state to lay a foundation for the
admissibility of the test results at trial.” Id. at paragraph one of the syllabus. In
those circumstances, we explained, “[t]he chemical test result is admissible at trial
without the state’s demonstrating that the bodily substance was withdrawn within
two hours of the time of the alleged violation, that the bodily substance was
analyzed in accordance with methods approved by the Director of Health, and that
the analysis was conducted by a qualified individual.” Id. Nonetheless, we stated
that this waiver “does not mean, however, that the defendant may not challenge
the chemical test results at trial under the Rules of Evidence. Evidentiary
objections challenging the competency, admissibility, relevancy, authenticity, and
credibility of the chemical test results may still be raised.” Id. at 452.
       {¶ 27} We reaffirmed our holding in French in State v. Edwards, 107
Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752, noting that an accused may
move to suppress an alcohol-content test based on noncompliance with
regulations governing the maintenance and operation of testing devices. Id. at
¶ 11, citing French at 449. And we further indicated that “a defendant at trial may
challenge breath-test results on grounds other than that the results were illegally
obtained because they were obtained in noncompliance with the director’s rules.
For example a defendant may argue at trial that the particular device failed to
operate properly at the time of testing.” Id. at ¶ 19.




                                          10
                                January Term, 2014




       {¶ 28} As these cases demonstrate, the General Assembly has delegated to
the director of ODH the authority to adopt appropriate tests and procedures to
chemically analyze specified bodily substances to ascertain the concentration of
alcohol, drug, controlled substance, or combination thereof in those bodily
substance and issue permits to qualified persons to perform those analyses. As we
indicated in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 32, “the General Assembly instructed the Director of Health—and not the
judiciary—to ensure the reliability of alcohol-test results by promulgating
regulations precisely because the former possesses the scientific expertise that the
latter does not.” (Emphasis sic.) The director has decided that Intoxilyzer 8000s,
when used in accordance with department regulations, are capable of accurately
measuring breath-alcohol concentrations, Ohio Adm.Code 3701-53-02(A)(3), and
an accused therefore may not attack the general scientific reliability of that
machine test, Vega, 12 Ohio St.3d at 186, 465 N.E.2d 1303.
       {¶ 29} But although the court announced in Vega that “an accused may
not make a general attack upon the reliability and validity of the breath testing
instrument,” id. at 190, the director’s approval of the Intoxilyzer 8000 does not
preclude an accused from challenging the accuracy, competence, admissibility,
relevance, authenticity, or credibility of specific tests results at issue in a pending
case. We have recognized that an accused may seek to suppress the results of his
breath test if the sample was not given within two hours of the time of the alleged
violation and if it was not analyzed in accordance with regulations governing the
maintenance and operation of testing devices. French, 72 Ohio St.3d 446, 630
N.E.2d 887, at paragraph one of the syllabus; Edwards at ¶ 11. And in Edwards,
we noted that an accused may attack the breath-test results by attempting to prove
that “the particular device failed to operate properly at the time of testing.”
Edwards at ¶ 19. Nothing in either the relevant statutes or our caselaw precludes
an accused from attacking the accuracy, competence, admissibility, relevance,



                                          11
                              SUPREME COURT OF OHIO




authenticity, or credibility of the specific breath-test result rendered by an
Intoxilyzer 8000.
        {¶ 30} In this case, the COBRA data that Ilg sought in the subpoena
expressly targeted evidence related solely to the Intoxilyzer 8000 that the city
used to perform his breath test. Ilg’s expert, Alfred E. Staubus, Pharm.D, Ph.D.,
provided the only evidence in the record on that issue and averred that “[i]n order
to be able to evaluate the reliability of the test, this particular Intoxilyzer 8000
machine, and the testing procedures in this case, all of the documents requested of
the State and ODH are necessary.” No one from ODH gave any testimony
suggesting that the COBRA data is not, in fact, relevant to demonstrating the
inaccuracy of Ilg’s breath test on the night of his arrest. Thus, the record supports
the trial court’s finding that Ilg could not challenge the reliability of his breath test
without the COBRA data generated by the Intoxilyzer 8000.
                                      Conclusion
        {¶ 31} By enacting R.C. 4511.19(D)(1)(b), the General Assembly
delegated to the Ohio Department of Health the responsibility of determining
which breath-test procedures and devices reliably determine the breath-alcohol
concentration of an individual suspected of driving while under the influence of
alcohol. Relying on this delegation of authority, State v. Vega, 12 Ohio St.3d 185,
465 N.E.2d 1303, precluded an accused from presenting expert testimony to
attack the general scientific reliability of breath-alcohol tests conducted in
accordance with methods approved by the director of the Ohio Department of
Health. However, the approval of a breath-analyzer machine by the director of
the Ohio Department of Health as a device to test breath-alcohol concentration
does not preclude an accused from challenging the accuracy, competence,
admissibility, relevance, authenticity, or credibility of specific test results or
whether the specific machine used to test the accused operated properly at the
time of the test.




                                           12
                                 January Term, 2014




          {¶ 32} Thus, an accused may challenge the accuracy of specific test
results rendered by a breath-analyzer machine. Here, neither the statute nor our
caselaw precludes Ilg from showing that the Intoxilyzer 8000 that tested his
breath provided an inaccurate result, and he is entitled to discovery of relevant
evidence to support his claim that the Intoxilyzer 8000 machine used to test him
failed to operate properly.
          {¶ 33} Accordingly, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
          O’NEILL, J., concurs in judgment only.
                              ____________________
          Terrance A. Nestor, Acting City Solicitor, Charles A. Rubenstein, City
Prosecutor, and Jennifer Bishop and Emily Woerner, Assistant City Prosecutors,
for appellant.
          The Law Office of Steven R. Adams, Steven R. Adams, and Marguerite
Slagle, for appellee.
          Michael Dewine, Attorney General, Eric E. Murphy, State Solicitor, and
Jeffrey Jarosch, Deputy Solicitor, urging reversal for amicus curiae state of Ohio.
          Paul A. Dobson, Wood County Prosecuting Attorney, and David E.
Romaker Jr., Assistant Prosecuting Attorney, urging reversal for amicus curiae
Ohio Prosecuting Attorneys Association.
          Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett,
Assistant Prosecuting Attorney, urging reversal for amicus curiae Lucas County
Prosecuting Attorney Julia R. Bates.
          Mark Kitrick, urging reversal for amicus curiae Mothers Against Drunk
Driving (MADD).




                                          13
                           SUPREME COURT OF OHIO




       D. Timothy Huey; Kura, Wilford & Schregardus Co., L.P.A., and Sarah
M. Schregardus; and Patricia J. Smith, urging affirmance for amicus curiae
National College for DUI Defense.
       Daniel J. Sabol and Jessica G. Fallon, urging affirmance for amicus curiae
Ohio Association of Criminal Defense Lawyers.
                        __________________________




                                       14
