[Cite as State v. Harmon, 2013-Ohio-442.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2012-P-0067
- vs - :
JESSICA R. HARMON, :
Defendant-Appellee. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2011 TRC 16194.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street,
Ravenna, OH 44266 (For Plaintiff-Appellant).
Joseph C. Patituce, and Megan M. Patituce, Patituce & Associates, L.L.C., 26777
Lorain Rd., Suite 708, North Olmsted, OH 44070 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the June 20, 2012 Journal
Entry of the Portage County Municipal Court, Ravenna Division, suppressing the result
of a breath test performed on defendant-appellee, Jessica R. Harmon, using an
Intoxilyzer 8000. The issue before this court is whether a trial court, exercising its
evidentiary role as gatekeeper, may entertain a challenge to the results of a breath
testing instrument where the Ohio director of health has approved such instrument for
determining the concentration of alcohol in a person’s breath. For the following
reasons, we reverse the decision of the court below.
{¶2} On December 9, 2011, the Ohio State Highway Patrol issued Harmon a
traffic ticket, charging her with OVI, a misdemeanor of the first degree in violation of
R.C. 4511.19(A)(1)(a) (driving under the influence of alcohol) and (d) (driving with a
prohibited breath alcohol concentration), and with a Tail Lights violation, a minor
misdemeanor in violation of R.C. 4513.05(A).
{¶3} On December 12, 2011, Harmon entered a plea of “not guilty.”
{¶4} On January 30, 2012, Harmon filed a Motion to Suppress Evidence,
seeking the suppression of “[a]ny tests of defendant’s coordination, sobriety, alcohol or
drug level, including chemical tests”; “[a]ny observations and opinions of the police
officer(s) who stopped defendant”; “[a]ny statements made by defendant”; and “[a]ny
physical evidence obtained by the police.” Harmon raised numerous grounds for the
suppression of evidence, including, inter alia, that “the State of Ohio must demonstrate
that this specific Intoxilyzer 8000 is admissible pursuant to Daubert v. Merrell [sic] Dow
Pharmaceuticals[, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)].”
{¶5} On May 21, 2012, a hearing was held on the Motion to Suppress
Evidence. Counsel for Harmon modified the Motion to Suppress by withdrawing
portions of it “as it relates to the reason for the initial stop, basis of the field sobriety
tests and the results of those field sobriety tests.” Counsel for Harmon desired the
hearing to go forward “as it relates to the Intoxilyzer 8000.” It was counsel’s belief that
“the State of Ohio is required to put on a witness who can either explain to this Court,
under Criminal Rule 702 and/or Vega, why this should be before the Court.” The
assistant prosecuting attorney responded that it was the State’s position that it was not
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necessary to present evidence on this issue. The municipal court took the matter under
advisement.
{¶6} On June 20, 2012, the municipal court issued a Journal Entry, ruling on
Harmon’s Motion. The court stated that it was “limit[ing] its review of Defendant’s
Motion to Suppress solely to the admissibility of a B[r]AC test from the Intoxilyzer 8000.”
The court determined that the issue before it was identical to the issue in “State v.
Johnson (2012) decided January 6, 2012 in Portage County Municipal Court Case R 11
TRC 4090, unreported.” Based on the “rationale and findings in Johnson,” the court
found “that Defendant’s Motion to Suppress is well taken and is hereby granted,” and
ruled that the breath test results of the Intoxilyzer 8000 would not be admissible at trial.
Without expressly dismissing the R.C. 4511.19(A)(1)(d) charge, the court ordered that
the “remaining charges alleging a violation of R.C. 4511.19(A)(1)(a) and 4513.05 shall
be set for trial.”
{¶7} On June 21, 2012, the State filed its Notice of Appeal.
{¶8} On June 25, 2012, the municipal court stayed execution of its June 20,
2012 Journal Entry pending appeal.
{¶9} On appeal, the State raises the following assignment of error:
{¶10} “[1.] [The] Portage County Municipal Court erred in permitting a general
attack on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and
well-established case law.”
{¶11} The issue of whether a general attack on the accuracy/reliability of the
Intoxilyzer 8000 has been previously decided by this court. State v. Miller, 11th Dist.
No. 2012-P-0032, 2012-Ohio-5585; State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-
Ohio-5584.
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{¶12} While preliminary, Daubert-based challenges to the admissibility of breath
test results are prohibited, the results of such tests are subject to a myriad of other
challenges.
{¶13} When duly challenged, the State must demonstrate that the bodily
substance was “analyzed in accordance with methods approved by the director of
health” and “by an individual possessing a valid permit.” R.C. 4511.19(D)(1)(b). The
Ohio Supreme Court has affirmed that “[t]here is no question that the accused may * * *
attack the reliability of the specific testing procedure and the qualifications of the
operator,” as well as present “expert testimony as to testing procedures at trial going to
weight rather than admissibility.” State v. Vega, 12 Ohio St.3d 185, 189, 465 N.E.2d
1303 (1984). Thus, “[t]he defendant may still challenge the accuracy of his specific test
results, although he may not challenge the general accuracy of the legislatively
determined test procedure as a valid scientific means of determining blood alcohol
levels.” State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d 689 (1984); State v. French, 72
Ohio St.3d 446, 451-452, 650 N.E.2d 887 (1995) (in addition to requiring the State to
demonstrate 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 holding a permit issued by the Director of Health”, “[e]videntiary objections
challenging the competency, admissibility, relevancy, authenticity, and credibility of the
chemical test results may still be raised”).
{¶14} In the present case, Harmon challenged the breath test results of the
Intoxilyzer 8000 on several grounds: that the State is required “to lay the foundation for
the admission of these tests at trial by demonstrating conformity to the requirements of
the Ohio Revised Code [and] the Ohio Administrative Code”; the “Defendant’s breath
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sample was not analyzed according to the operational checklist for the instrument used,
and checklist forms recording the results were not retained as required by OAC 3701-
53-02(C) and OAC 3701-53-01(A)”; and “Defendant’s breath sample was not analyzed
in accordance with OAC 3701-53-04(B) which states in plain language that all
instruments listed in OAC 3701-53-02(A)(3) (The intox. 8000) must perform a dry gas
control before and after every subject test.”
{¶15} Under the statute and cases discussed above, these were valid
challenges to the admissibility of breath test results and properly raised in a motion to
suppress. The municipal court, however, granted Harmon’s motion solely on the
grounds that the State failed to produce evidence of the Intoxilyzer 8000’s scientific
reliability. In her appellate brief, Harmon contends the State’s failure to produce
evidence in response to any of her challenges to the admissibility of the breath test
results is grounds for affirming the municipal court’s decision. Given the circumstances
of the present case, we disagree. At the suppression hearing, the State requested the
court to “rule on the State’s brief that was filed,” which only addressed the necessity of
introducing evidence to demonstrate the Intoxilyzer 8000’s general reliability. The
court’s ruling was limited to this issue. Accordingly, on remand, it will be necessary for
the court to hold another hearing to address the other issues raised in Harmon’s Motion
to Suppress, at which time, the State will have the opportunity to respond to Harmon’s
specific arguments.
{¶16} The sole assignment of error is with merit.
{¶17} For the foregoing reasons, the judgment of the Portage County Municipal
Court, Ravenna Division, granting Harmon’s Motion to Suppress Evidence, is reversed,
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and this cause is remanded for further proceedings consistent with this opinion. Costs
to be taxed against appellee.
MARY JANE TRAPP, J., concurs,
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
______________________
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
{¶18} R.C. 4511.19(D)(1)(b) does not mandate admissibility of breath test
results derived from the Intoxilyzer 8000. Rather, that statute which, by its plain
language controls the issue in this case, vests the trial court with discretion regarding
admissibility despite approval from the director. I, therefore, respectfully dissent.
{¶19} R.C. 3701.143 empowers the director to approve breath testing devices,
and R.C. 4511.19(D)(1)(b) grants trial courts the discretion to admit the results from
approved devices without further proof of reliability when circumstances warrant.
Although some claim the contrary, nobody is correct all the time. In recognizing human
fallibility, the legislature had the wisdom to vest within the trial court the discretion per
R.C.4511.19(D)(1)(b) to conduct further inquiry when there is an issue as to the
reliability of an approved breath testing device before admitting the results.
{¶20} R.C. 4511.19(D)(1)(b) states that “[i]n 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,
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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[,]” and “[t]he 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.” (Emphasis added.)
{¶21} The statute does not use the word “shall,” which would mandate
admission regardless of the circumstances. Rather, the statute uses the word “may.”
For purposes of statutory construction, “use of the word ‘may’ is generally construed to
make the provision in which it is contained optional, permissive, or discretionary * * *.”
Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107 (1971); State v. Suchevits,
138 Ohio App.3d 99, 102 (11th Dist. 1999).
{¶22} In this case, the trial court exercised its discretion not to admit the breath
test absent proof from the state that the Intoxilyzer 8000 is generally reliable, a decision
consistent with the discretion it possesses under R.C.4511.19(D)(1)(b). As reliability
presents a threshold admissibility issue, reliability, as opposed to the weight to be
afforded any admitted evidence, is one for the trial court. Knott v Revolution Software
Inc. 181 Ohio App.3d 519, 2009-Ohio-1191, ¶45 (5th Dist.); State v. Riley, 6th Dist. No.
WD-03-076, 2007-Ohio-879, ¶27 (expert testimony must be deemed reliable before it is
deemed admissible.); Saad v. Shimano American Corp., 2000 U.S. Dist. LEXIS 10974,
*7 (N.D. Ill. 2000)(The Supreme Court has made it clear that the courts must allow into
evidence only expert testimony that meets certain threshold standards of reliability and
usefulness).
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{¶23} Moreover, the determination of evidential reliability necessarily implicates
the defendant’s substantive due process rights.
{¶24} “Substantive due process, [although an] ephemeral concept, protects
specific fundamental rights of individual freedom and liberty from deprivation at the
hands of arbitrary and capricious government action. The fundamental rights protected
by substantive due process arise from the Constitution itself and have been defined as
those rights which are ‘implicit in the concept of ordered liberty.’ (* * *) While this is
admittedly a somewhat vague definition, it is generally held that an interest in liberty or
property must be impaired before the protections of substantive due process become
available.” State v. Small, 162 Ohio App.3d. 375, 2005-Ohio-3813, ¶11 (10th Dist.),
quoting Gutzwiller v. Fenik, 860 F. 2d. 1317, 1328 (6th Cir. 1989).
{¶25} However vague the conceptual parameters of one’s substantive due
process guarantees may be, the following principle is clear; “[substantive] * * * due
process is violated by the introduction of seemingly conclusive, but actually unreliable
evidence.” Barefoot v. Estelle, 463 U.S. 880, 931, fn. 10 (1983).
{¶26} The trial court was aware that other courts had deemed the Intoxilyzer
8000 unreliable even though it was approved. Against the backdrop, the court ordered
the state to establish the general reliability of the Intoxilyzer 8000 before admitting the
results. Given the constitutional gravity of admitting unreliable results, however, and its
statutory authority to act as gatekeeper regarding breath test results, the lower court’s
decision to require the state to produce evidence of the machines reliability was an
eminently reasonable and sound legal decision. “[A]n abuse of discretion is the trial
court’s ‘failure to exercise sound, reasonable, and legal decision-making.’” State v.
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Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary
(8 Ed.Rev.2004) 11.
{¶27} Rather than present evidence of the general reliability of the Intoxilyzer
8000, the state took the position that the trial court could not require it to do so pursuant
to Vega and its progeny. Vega, 12 Ohio St.3d 185 (1984). I do not read Vega as
holding that under no circumstances can a trial court exercise its discretion to require
evidence of general reliability of an approved breath testing device as a condition to
admissibility.
{¶28} In Vega, the court held “* * * an accused is not denied his constitutional
right to present a defense nor is the state relieved of its burden of proving guilt beyond a
reasonable doubt where a trial judge does not permit expert testimony to attack the
reliability of intoxilyzers in general.” (Emphasis added.) Id. at 186.
{¶29} Threshold admissibility was not at issue in Vega. That is, the defendant
made no challenge to the trial court’s admission of his breath test result. Instead, after
the state presented its case and rested, the defendant attempted to present a
“reliability” defense by attacking intoxilyzers in general. See also State v. Vega, 5th
Dist. No. CA-1766, 1993 Ohio App LEXIS 14350, *16 (Nov.22, 1983)(Hoffman, J.,
dissenting). Unlike Vega, 12 Ohio St. 3d 185, threshold admissibility is the issue in the
case before us. Moreover, unlike Vega, our case is not about the reliability of
intoxilyzers in general. Our case is limited to whether the Intoxilyzer 8000 is reliable. In
short, the circumstances at issue in Vega were fundamentally distinguishable from
those in our case.
{¶30} Additionally, the rule in Vega does not contemplate a situation where, as
here, an approved device’s general reliability has been assessed by other courts for
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both use in and out of this state and the device’s reliability has been found suspect.
See State v. Johnson, Portage County Municipal Court, January 6, 2012. Vega
expressly states that its holding does not involve a situation where there was an
assertion that there was an abuse of discretion by the director in approving the breath
testing device at issue. Vega at 187, fn. 2. Obviously, in our case if the Intoxilyzer
8000 is unreliable, approval would amount to an abuse of discretion and admission of
the test results a violation of substantive due process.
{¶31} Breath tests are “‘* * * generally recognized as being reasonably reliable
on the issue of intoxication when conducted with proper equipment and by competent
operators.’” (Emphasis added.) Vega at 186, quoting Westerville v. Cunningham, 15
Ohio St.2d 121, 128(1968). Thus, the central issue as presented in the case before us,
does the Intoxilyzer 8000 qualify as “proper equipment”? The answer is “yes” if it is
generally reliable and “no” if it is not. This is a query, however, that, under Ohio law, a
trial court is entitled to resolve pursuant to R.C. 4511.19(D)(1)(b).
{¶32} In this case, the trial court exercised its discretion to safeguard the
defendant’s right to substantive due process by merely requiring the state to show the
Intoxilyzer 8000 is generally reliable. Under the circumstances, this decision was sound
and reasonable. This is particularly true in light of the fact that a trial court is vested
with broad discretion in the admission or exclusion of evidence and in recognition that it
has inherent power to exclude or strike evidence on its own motion. Caroll v Caroll, 7th
Dist. No. 89-C-1, 1990 Ohio App. LEXIS 1339, *8 (April 5, 1990); Neil v. Hamilton
County, 87 Ohio App.3d 670; Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69, 70
(10th Dist. 1988).
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{¶33} Given the foregoing point, there is no reason to remand this case to the
trial court based upon perceived inadequacies in the motion to suppress. The trial court
made it abundantly clear that it would not admit the test results absent proof of reliability
of the Intoxilyzer 8000. Requiring the proponent to establish the reliability of scientific
evidence is something that a trial court may require as previously discussed. The state
was well aware of what the trial court required when it ordered it to produce evidence of
the Intoxilyzer 8000’s reliability, independent and irrespective of the contents of the
motion to suppress. Accordingly, there is no procedural due process violation of the
state’s right to notice and an opportunity to be heard. The trial court’s order was
unambiguous and an exercise of the sound discretion as the gatekeeper of breath test
result admissibility.
{¶34} When an appellate court [**14] is reviewing a pure issue of law, “the mere
fact that the reviewing court would decide the issue differently is enough to find error (of
course, not all errors are reversible. Some are harmless; others are not preserved for
appellate review). By contrast, where the issue on review has been confined to the
discretion of the trial court, the mere fact that the reviewing court would have reached a
different result is not enough, without more, to find error.” Sertz v. Sertz, 11th Dist. No.
2011-L-063, quoting Beechler, 2010-Ohio-1900 at ¶67.
{¶35} This appeal is centered around a discretionary decision made by the trial
court. As I find the court’s decision not only reasonable, but constitutionally astute, I
would affirm the trial court’s exclusion of the breath test in light of the state’s refusal to
present evidence on the issue.
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