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State v. Vega revisited

Six years ago, the Ohio State Controlling Board spent $6.4 million to purchase 700 Intoxilyzer 8000's, supposedly the new generation of machines designed to measure alcohol in the breath of those suspected of drunk driving.  The purchase was done at the behest of the Department of Health, which has the legislative authority to prescribe what machines will be used in that effort.

The acquisition was not without controversy.  Dean Ward, the Department of Health official who drew up the specifications and recommended the purchase, was a friend of the owner of the company which made the Intoxilyzer 8000; among the 17 companies invited to bid for the contract, Ward's specifications fit only the 8000. 

The controversy deepened when questions emerged about the accuracy of the device, and judges in municipal courts began throwing out the tests.  Those cases ran into a roadblock on appeal, though; appellate panels reversed in reliance on the Supreme Court's 1984 decision in State v. Vega, which held that the grant of legislative authority to the Department of Health meant that a defendant couldn't attack the general reliability of the machines.

Last week, the battle over the machines culminated in the oral argument before the Supreme Court in City of Cincinnati v. Ilg.  

Speaking of controversy, Vega has been criticized, with many arguing that it runs afoul of the long-standing principle that in criminal law, there are no conclusive presumptions.  That's what Vega does:  it establishes a conclusive presumption that the Intoxilyer 8000 is a reliable means of testing for blood/alcohol.  The defendant can still attack the reliability of that particular machine, but bringing in an expert to testify that the machine in general is a piece of junk is forbidden.

This makes sense to the degree that it doesn't require the State to prove in every case that the Intoxilyzer 8000 is accurate; obviously, there would be substantial expenditures of time and money to do that.  But every new technology requires some proof of its general validity.  Normally, that's done by the courts.  With various speed-reading lasers, for example, a court would hold a hearing and take testimony to determine whether the device accurately measured speed, and once a court determined that, other courts could take judicial notice of that decision.  Here, the decision of the Director of the Department of Health, even under suspicious circumstances, supplants the judicial determination.  Moreover, Vega doesn't simply lift the requirement that the state prove reliability; it prohibits the defendant from proving unreliability. 

The problem is heightened because it does seem that there are serious problems with the Intoxilyzer 8000, with some experts indicating that the machine's design and components make it more prone to error because heat, humidity, and radio interference can affect its accuracy.  Local and state police have gone to some lengths to refute this, including the memorable effort by the Florida Department of Law Enforcement to do an "independent study," which involved getting some of their employees drunk and then subjecting them to blood/alcohol tests.  (And no $5-a-quart liquor for this hardy crew:  the available drinks included Stolichnaya Vodka and Joe Cuervo Gold Tequila.)

But if you're expecting to read that Ilg presented an opportunity for the court to revisit Vega, you'll be disappointed.  The defense attorneys had narrowly crafted their suppression motions and discovery requests to the machine used in his case.  (Well, maybe not so narrowly; the prosecutor's brief labels the suppression pleading as a "shotgun" motion, noting that it asks to suppress the result of a particular field sobriety test which wasn't even performed.)

The City's argument focused on the defense subpoena demanding that the Department of Health and Department of Public Safety produce the computerized online breath archives data (COBRA data).  That database includes every test conducted with every Intoxilyzer, but Ilg was asking only for the 62 tests conducted with the machine used on him.  The City contended that extracting that information would cost $100,000, but the trial court wasn't buying, and neither did the First District.

Neither, it appeared, were the Supreme Court justices.  O'Connor elicited that the Department had the same sheets for the other 61 tests that had been produced for his, so the $100,000 figure went bye-bye.  And when the defense attorney confirmed that all he was looking for was the tests for that machine, you didn't need a weatherman to know which way the wind was blowing; that would fit clearly within Vega.

Some justices expressed misgivings about Vega -- Lanziger's question as to what the Department of Health had done to determine the machine's reliability went basically unanswered -- but the court's not going to take another look at Vega if it doesn't have to.  And it may not matter anyway, at least as far as the Intoxilyzer 8000 is concerned.  There were so many problems with the machine, with many police departments discontinuing its use and many others not even adopting it, that the 8000 is no longer manufactured.  There are only five of them still in use in the entire state.


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