CITY OF CINCINNATI, Plаintiff-Appellant, vs. DANIEL ILG, Defendant-Appellee.
APPEAL NO. C-120667
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 31, 2013
2013-Ohio-2191
TRIAL NO. 11TRC-53698
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 31, 2013
John Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jennifier Bishop, Assistant City Prosecutor, fоr Plaintiff-Appellant,
The Law Office of Steven R. Adams, Steven R. Adams and Marguerite Slagle, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
{1} Plaintiff-appellant city of Cincinnati appеals the judgment of the Hamilton County Municipal Court granting a motion for sanctions for failure to comply with the court‘s discovery order.
Ilg‘s Discovery Efforts
{2} In 2011, defendant-appellee Daniel Ilg was charged with driving with a prohibited breath-alcohol concentration and driving while impaired. During disсovery, Ilg sought a number of documents from the Ohio Department of Health (“the ODH“) relating to the performance of the Intoxilyzer 8000, the machine the city had used to measure his breath-alcohol concentration. Among other items, Ilg sought the ODH‘s computerized online breath archives, or “COBRA” data.
{3} When he did not receive the requested material, Ilg served the ODH with two subpoenas duces tecum. Those efforts also proved futile, and Ilg then filed a motion to compel the production of the documents along with a motion for sanctions. The city countered with a motion to strike the subpoenas, and the trial court conducted a hearing on August 27, 2012.
{4} ODH representative Mary Martin testified at the hearing. Martin testified that the Intoxilyzer 8000 saves data for each test that is performed, and that this COBRA information is compiled by the ODH in a spreadsheet. But Martin stated that the COBRA material was stored in a “read-only” format and that ODH did not have the resources to copy the database for dissemination. The trial court granted the motion to compel and ordered ODH to producе the COBRA data as well as other material listed in the subpoenas duces tecum.
{5} On September 25, 2012, the trial court conducted another hearing to address the discovery issues. At that hearing, the parties indicated that certain documents had been produced but that thе COBRA data had not been provided to
{6} The trial court then ordered the exclusion of the breath test from evidence, leaving the case tо proceed on the impairment charge alone. The city appealed.
The Motion to Quash
{7} In its first assignment of error, the city argues that the triаl court erred in ordering the production of the documents listed in Ilg‘s subpoenas duces tecum. But because the trial court‘s decision regarding the exclusion of the breath test was based on the state‘s failure to produce the COBRA data, we confine our discussion tо that portion of the discovery order.
{8} When deciding a motion to quash a subpoena under
{9} In the case at bar, we find nо abuse of discretion. The evidence indicated that the COBRA database was a comprehensive repository of informatiоn
{10} The city maintains that Ilg‘s request—and the trial court‘s discоvery order—went beyond the scope of what was relevant. According to the city, the court required the ODH to disclose materiаl relating to the reliability of the Intoxilyzer 8000 in general, rather than the reliability of the breath test in Ilg‘s case. Thus, the city maintains that the court‘s оrder ran afoul of State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984) and State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, in which the Supreme Court of Ohio held that determining the general reliability of a testing machine was within the sole province of the ODH.
{11} Again, this argument is not persuasive. The subpoenas duces tecum specifically identified the machine used to test Ilg‘s breаth, and the entry granting the motion to compel did not expand the terms of the subpoenas. The city has therefore failed to demonstrate that the order exceeded the permissible scope of Vega and Burnside. Moreover, even if the court‘s order could conсeivably be construed as overbroad, the fact remains that the ODH did not produce any of the COBRA data. The city thus cannot complain about any overbreadth in the discovery order, and we overrule the first assignment of error.
{12} In its second and final assignment of error, thе city contends that the trial court erred in excluding the breath test from evidence because the discovery violation had been attributable to the ODH, which was not a party to the prosecution. In essence, the city argues that the court improperly sanсtioned it for the acts or omissions of the state of Ohio.
{13} We find no merit in this assignment. Cities are regarded as subordinate governmental instrumentаlities created by the states to assist in the carrying out of state functions. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); South Euclid v. Swirsky, 8th Dist. No. 79865, 2002-Ohio-1072. As such, a city and the state are essentially the same sovereign, and the city in this case may not avoid the consequences of the ODH‘s failure to comply with the court‘s order.
{14} Morеover, the trial court‘s exclusion of the test in this case was not merely punitive. As we have already stated, the material sought in discоvery was relevant to Ilg‘s defense. Therefore, the discovery violation implicated Ilg‘s fundamental right to a fair trial, and the trial court‘s sanction was reasonably calculated to protect that right. We overrule the second assignment of error.
Conclusion
{15} We affirm the judgment of the trial court
Judgment affirmed.
HENDON, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry this date.