The Ohio Supreme Court’s recent unanimous decision allowing DUI defendants the right to challenge their breathalyzer test is a victory for adults who responsibly consume alcohol and never get behind the wheel when they have had too much, say local and state defense attorneys.


The Ohio Supreme Court ruled 7-0 affirming a lower court’s decision to deny prosecution a Cincinnati man’s breathalyzer test as evidence because the state of Ohio refused to hand over computer data showing the breathalyzer machine the man tested on – the Intoxilyzer 8000 – maybe unreliable and has accuracy issues.


While the case, City of Cincinnati vs. Daniel Ilg, is about challenging the Intoxilyzer 8000, it is equally about a defendant’s right for discovery of evidence.


Since 1984 a controversial Ohio Supreme Court decision, State vs. Vega, has denied any DUI defendant the right to challenge any state-certified breathalyzer machine they tested on, and the City of Cincinnati cited Vega when it refused to hand over the computer data to Daniel Ilg’s attorney.


“In the past anytime the accused would even begin to question the accuracy of their (breathalyzer) test or the machine that tested them, the prosecution would yell ‘objection Vega’,” says Columbus DUI defense attorney Tim Huey and past president of the Ohio Association of Criminal Defense Lawyers.


Some defense attorneys across the state have professed they have made it a career goal to shoot down Vega and thus allow DUI defendants a total defense.


Critics, such as Mothers Against Drunk Driving or MADD, claim that without State vs Vega, Ohio’s courts are going to be jammed with appeals from DUI defendants challenging their breathalyzer test.


“What would happen if anyone and everyone challenged their breathalyzer test? The short answer is, the trials would never end,” says MADD Ohio State Executive Director Doug Scoles from his Columbus office.

At the heart of issue is the Intoxilyzer 8000, Ohio’s most utilized breathalyzer since 2009, which had already been banned from several states such as Florida for being unreliable. Huey and other Columbus defense attorneys convinced Franklin County law enforcement to ban the Intoxilyzer 8000 in 2009, but it is still used in Hilliard, Gahanna and Westerville.


Huey says this could be the “deathnell” of the Intoxilyzer 8000, which is manufactured in Kentucky and cost Ohio $7 million for hundreds of these breathalyzers. However, law enforcement agencies across the state may revert back to the Intoxilyzer 5000, the 8000’s predecessor, but believed by defense attorneys to be as unreliable as the 8000. If not the 5000, the law enforcement agencies could go to the Datamaster, which has far less critics and is manufactured in Ohio.


The Ohio Supreme Court’s decision on Ilg, however, is not set in stone, says Huey.


“All that remains now is to see if trial courts and lower appellate courts faithfully and logically follow these decisions or continue to be swayed by the old view of Vega,” he says.