A judge recently ordered the Ohio Department of Health (ODH) to produce machine test records in Hamilton County Municipal Court in Cincinnati, Ohio. This information was requested by defense lawyers in discovery, by pubic record request, subpoena, and finally in a motion to compel production of evidence.
After a two hour hearing, the judge found that since the ODH has the records they must produce them. The ODH said that they need time to figure out the best solution since the data was constructively destroyed and will cost $100,000 to reproduce.
ODH representatives have said the Intoxilyzer 8000 was purchased with federal grant money. The money is no longer available to support the program.
There was also a problem where OVI defense lawyers in Ohio were using records and information collected and reported to the ODH to convince judges to suppress test results on the new 8000 breath test machine. The reason the ODH claims it redacted the breath test data that used to appear online is “to avoid confusion” that was causing its tests to be thrown out of court.
The perfect storm that the ODH has to deal with is how it chose to redact the data. They claim that they did not contemplate that a court would require them to reproduce it.
The ODH had a database with test data stored in a proprietary way. This means that they have to use a special program to interpret it before giving it to defense lawyers.
ODH had a computer programmer remove the old program that displayed the data online and use a new program that does not show the data lawyers want to see. This is like printing a paper copy of the records, deleting the database, and then running the paper records through a cross cut shredder, mixing up the pieces, bagging them, and throwing them in a closet.
They can then come to court and testify that the data is not permanently destroyed, but cannot be easily reproduced. In fact they claim it will cost them about $100,000 to reproduce the data from just one machine in a readable format.
And remember, if you or a family member has been arrested for DUI or OVI in the Greater Cincinnati- Have taken a test on the Intoxilyzer 8000, or were pulled over in Butler, Warren and Clermont Counties, or the areas of West Chester, Mason, Blue Ash, Montgomery, Lebanon, or other surrounding areas – give our firm a call at 513.333.0014 24-hours a day, 7 days a week because now is the perfect time to our award winning law firm, with former law enforcement officers and former prosecutors, one of which was named a leading lawyer in the area of DUI and OVI defense since 2006, to work for you!