State v. Schrock

[Cite as State v. Schrock, 2013-Ohio-441.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellant, :
CASE NO. 2012-P-0022
- vs - :

MATT M. SCHROCK, :

Defendant-Appellee. :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
2011 TRC 04987R.

Recommendation: Reversed and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

Matt M. Schrock, pro se, 836 A Main Street, Akron, OH 44310 (Defendant-Appellee).

MARY JANE TRAPP, J.

{¶1} The state of Ohio appeals from the decision of the Portage County

Municipal Court, Ravenna Division, which granted appellee, Matt M. Schrock’s, motion

in limine. Mr. Schrock sought a determination that the BAC results from an Intoxilyzer

8000 test were not admissible at trial, and the trial court made such a determination

based on the state’s failure to present any expert testimony on the subject of the

Intoxilyzer 8000’s scientific reliability.
 {¶2} We find that the trial court was not at liberty to demand presentation of

evidence by the state of Ohio as to the scientific reliability of the Intoxilyzer 8000 prior to

trial. The legislature has specifically recognized the admissibility of evidential breath

testing instruments determined to be reliable by the Ohio Department of Health’s

Director of Health, and has delegated power to the Director of Health to make such

determinations. Therefore, we reverse the decision of the Portage County Municipal

Court and remand for further proceedings consistent with this opinion.

Substantive Facts and Procedural History

{¶3} In April 2011, Matt Schrock was stopped for driving 53 m.p.h. in a 35

m.p.h. zone in Franklin Township. He was charged with one count of speeding in

violation of R.C. 4511.21(C), and two counts of OVI in violation of R.C. 4511.19(A)(1)(a)

and 4511.10(A)(1)(d); he pled not guilty to all three charges. On the date of his arrest,

Mr. Schrock was administered a breath test using an Intoxilyzer 8000, which registered

a BAC of .096.

{¶4} Mr. Schrock filed a motion to suppress, challenging the warrantless stop of

his vehicle and the results of the BAC test. Despite being set for hearing a number of

times, no hearing on the motion to suppress was ever held and the motion was not

adjudicated. In February 2012, Mr. Schrock filed a motion in limine, seeking, pursuant

to Evid.R. 702(C), an order requiring the state to present evidence at a Daubert/Miller

hearing as to the “reliability and admissibility of breath alcohol results obtained by the

Intoxilyzer 8000.” The state responded in opposition, arguing that it was not required to

present evidence to establish the general reliability of the Intoxilyzer 8000 prior to its

introduction at trial of the machine’s BAC test results.

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 {¶5} The trial court granted Mr. Schrock’ motion in limine, relying entirely upon

a recent decision from the same court, State v. Johnson, Portage M.C. No.

R2011TRC4090, which also granted a motion in limine upon the state’s refusal to

present evidence on the matter of the Intoxilyzer 8000’s general scientific reliability.1

The state timely appealed, pursuant to Crim.R. 12(K) and R.C. 2945.67(A), and now

brings the following assignment of error:

{¶6} “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.”

{¶7} We note that Mr. Schrock has not submitted a brief in this matter.

Preliminary Matter

{¶8} The state appeals from a grant of a motion in limine. Generally, a motion

in limine “is a tentative, interlocutory, precautionary ruling by the trial court reflecting its

anticipatory treatment of the evidentiary issues. In virtually all circumstances finality

does not attach when the motion is granted.” State v. Grubb, 28 Ohio St.3d 199, 201-

202 (1986). However, “any motion which seeks to obtain a judgment suppressing

evidence is a ‘motion to suppress’ for purposes of R.C. 2945.67 and Crim.R. 12(J)

where that motion, if granted, effectively destroys the ability of the state to prosecute.

The fact that the motion is not labeled ‘motion to suppress’ is not controlling.”2 State v.

Davidson, 17 Ohio St.3d 132, 135 (1985). Because of the trial court’s determination

that the BAC results from the Intoxilyzer 8000 were not admissible at trial, the state’s

case has effectively been gutted and its ability to try the case destroyed. For that

1. State v. Johnson is currently on appeal before this court as case number 2012-P-0008, but has yet to
be decided.

2. What was Crim.R. 12(J) at the time of this decision, is now Crim.R. 12(K).

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reason, we find that a final appealable order exists and we may consider this appeal

pursuant to R.C. 2945.67 and Crim.R. 12(K).

Standard of Review

{¶9} “‘At a hearing on a motion to suppress, the trial court functions as the trier

of fact, and, therefore, is in the best position to weigh the evidence by resolving factual

questions and evaluating the credibility of any witnesses.’” State v. McGary, 11th Dist.

No. 2006-T-0127, 2007-Ohio-4766, ¶20, quoting State v. Molek, 11th Dist. No. 2001-P-

0147, 2002-Ohio-7159, ¶24, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus,

“‘[a]n appellate court must accept the findings of fact of the trial court as long as those

findings are supported by competent, credible evidence.’” Id, quoting Molek at ¶24,

citing State v. Retherford, 93 Ohio App.3d 586, 592 (2d Dist.1994). See also City of

Ravenna v. Nethken, 11th Dist. No. 2001-P-0040, 2002-Ohio-3129, ¶13. “‘After

accepting such factual findings as true, the reviewing court must then independently

determine, as a matter of law, whether or not the applicable legal standard has been

met.’” Id., quoting Molek at ¶24.

The Motion in Limine Was Granted in Error

{¶10} In its sole assignment of error, the state argues that the trial court erred

when it required the state to present expert testimony regarding the scientific reliability

of the Intoxilyzer 8000, and further erred when it granted Mr. Schrock’s motion in limine

in the face of the state’s refusal to go forward with a Daubert/Miller evidentiary hearing.

We agree with the state that the trial court was not at liberty to demand the state go

forward with an evidentiary hearing on the general scientific reliability of the Intoxilyzer

8000, and erred in determining the BAC test results were inadmissible in the absence of

such evidence of reliability.

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 {¶11} We note that this court has already addressed this issue in State v.

Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584, and State v. Carter, 11th Dist. No.

2012-P-0027, 2012-Ohio-5583. We are generally constrained by this precedent, but

further clarification is necessary regarding the “rebuttable presumption” discussed in

those two decisions.

{¶12} In Ohio, four methods exist to establish the reliability and thus admissibility

of scientific evidence: (1) judicial notice; (2) stipulation; (3) presentation of evidence,

such as in a Daubert/Miller pre-trial hearing; and (4) legislative recognition. Giannelli,

Baldwin’s Ohio Practice, Evidence (3d Ed.), Section 702.8 (2010). It is this fourth

method, the admissibility of evidence through legislative or statutory recognition, that is

at issue in this case.

{¶13} Mr. Schrock was charged under R.C. 4511.19(A)(1)(a) and (d). “For

purposes of sections 1547.11, 4511.19, and 4511.194 of the Revised Code, the director

of health shall determine, or cause to be determined, techniques or methods for

chemically analyzing a person’s whole blood, blood serum or plasma, urine, breath, or

other bodily substance in order to ascertain the amount of alcohol, a drug of abuse,

controlled substance, metabolite of a controlled substance, or combination of them in

the person’s whole blood, blood serum or plasma, urine, breath, or other bodily

substance. The director shall approve satisfactory techniques or methods, ascertain the

qualifications of individuals to conduct such analyses, and issue permits to qualified

persons authorizing them to perform such analyses.” R.C. 3701.143.

{¶14} Furthermore, 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

5
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, 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.”

{¶15} Reading these two code sections, it becomes evident that the legislature

specifically delegated the power to determine the reliability of certain evidential breath

testing instruments to the Director of Health. Questions of this delegation of authority to

the executive branch, and the constitutionality of mandatory judicial notice of the

reliability of this particular new breathalyzer machine under a separation of powers

theory are not squarely before us today. Therefore, we limit our analysis to the narrow

question that is before us and leave the resolution of those questions to another day

and another case.

{¶16} It has been asserted that “‘[u]nder [such] * * * statutes, the questions of

relevancy, and to a large extent weight, of the evidence, have thus been legislatively

resolved. The presumptions have been upheld by the courts * * * and the prescription

for test procedures adopted by the state health agency has been taken as acceptance

of the general reliability of such procedures in showing blood-alcohol content.’” State v.

Vega, 12 Ohio St.3d 185, 188 (1984), quoting McCormick on Evidence (2 Ed. Cleary

Ed. 1972) 511-513, Section 209. “It is evident from the statutory scheme upon the

subject that it was the intention of the General Assembly to meet and address the

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problem of drunken drivers upon the roads of Ohio and to do so by legislatively

providing for the admission into evidence of alcohol test results, including breath tests, if

conducted in accordance with procedures adopted by the Director of Health * * *. Such

delegation is not novel and is utilized in such states as Alabama, Connecticut, Missouri

and Florida.” State v. Brockway, 2 Ohio App.3d 227, 231 (4th Dist.1981).

{¶17} The issue of whether breath test reliability can and must be determined by

an evidentiary hearing before the trial judge, prior to the presentation of the evidence of

the results to a jury, has been the subject of debate for some years. In the preeminent

case on the matter, the Supreme Court of Ohio, in no uncertain terms, stated that “‘[the

judiciary must recognize] the necessary legislative determination that breath tests,

properly conducted, are reliable irrespective that not all experts wholly agree and that

the common law foundational evidence has, for admissibility, been replaced by statute

and rule; and that the legislative delegation was to the Director of Health, not the court,

the discretionary authority for adoption of appropriate tests and procedures, including

breath tests.’” Vega at 188-189, quoting Brockway at 231.

{¶18} “The presumption [of intoxication] created by the scientific test is thus to

be considered by the jury and the court along with other evidence as to whether or not

the accused was intoxicated.” Id. at 189. Thus, “[t]he discretion of the court concerns

not the general acceptability of the test but solely the criteria which are prescribed to

govern the testing procedure. To hold otherwise would completely nullify the

presumption established. Any issue of reliability may, of course, be raised as matter of

weight in the trial of the charge.” State v. Warnecke, 3d. Dist. No 12-81-3, 1981 Ohio

App. LEXIS 11071, *4 (Nov. 30, 1981).

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 {¶19} This court has recognized that the result of the Vega decision is “that,

because the legislature has delegated to the Director of the Ohio Department of Health,

rather than the courts, the discretionary authority to determine which tests and

procedures are reliable and thus admissible in an OVI prosecution, ‘an accused may not

make a general attack upon the reliability and validity of the breath testing instrument.’”

State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702, ¶87 (11th Dist.), quoting Vega at

190. It is well settled, however, “that while a defendant ‘may not challenge the general

accuracy of the legislatively determined test procedure as a valid scientific means of

determining blood-alcohol levels, he may challenge the accuracy of his specific test

result.’” City of Willoughby v. Eckersley, 11th Dist. No. 99-L-061, 2000 Ohio App.

LEXIS 2656, *11 (June 16, 2000), quoting Columbus v. Day, 24 Ohio App.3d 173, 174

(10th Dist.1985). See also State v. Tanner, 15 Ohio St.3d 1 (1984). Other Ohio

appellate courts have consistently held the same. See, e.g., State v. Luke, 10th Dist.

No. 05AP-371, 2006-Ohio-2306; State v. Columber, 3d Dist. No. 9-06-05, 2006-Ohio-

5490; State v. Birkhold, 5th Dist. No. 01CA104, 2002-Ohio-2464; City of Dayton v.

Futrell, 2d Dist. No. CA 8515, 1984 Ohio App. LEXIS 11631 (Oct. 26, 1984).

{¶20} As noted earlier, this court recently provided its latest interpretation of

Vega in Rouse and Carter. Rouse correctly recognizes that “[i]n Vega, the court clearly

endorsed the legislative delegation of R.C. 3701.143,” but then goes on to state that

Vega establishes a “rebuttable presumption of reliability of R.C. 4511.19(D)(1)(b).” Id.

at ¶21. This statement requires clarification of what presumption is actually rebuttable.

The rebuttable presumption presented in Vega is that of the defendant’s intoxication

based on use of one of the Health Director approved machines in accordance with the

Health Director’s guidelines. The presumed reliability of the science behind the test

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results from one of the approved machines is not a rebuttable presumption and may not

be challenged through a pre-trial motion. Rather, the conclusion of intoxication based

on test results from one of these machines is the rebuttable presumption, open to attack

via the demonstration of a lack of reliability of the defendant’s specific test results, i.e.

the application of the statutorily admissible science utilized by the test machines to the

defendant’s particular sample and circumstances. See Dayton, supra.

{¶21} It is nothing new for this court to require that a trial court accord due

deference to the director of health in matters of scientific expertise, where a statute

establishes the director’s authority. See, e.g., State v. Ferrato, 167 Ohio App.3d 136,

2006-Ohio-3219 (11th Dist.). Furthermore, affirmed by the Supreme Court of Ohio in

State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, we upheld the constitutionality of

an analogous legislative determination of admissibility related to field sobriety testing.

See State v. Boczar, 11th Dist. No. 2004-A-0063, 2005-Ohio-6910. In affirming this

court’s determination, the Supreme Court stated that “the new legislation replaced the

common-law standard of admissibility * * *.” Boczar at ¶22.

{¶22} Therefore, the “legislative mandate for admissibility obviates the need for

trial courts to determine admissibility based upon reliability of the processes and

methods underlying the use of breath testing machines. It follows, then, that because

the [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993)] inquiry involves only determinations as to the reliability of the

principles and methods upon which a particular scientific result is based, the legislative

mandate recognized in Vega forestalls the need for any Daubert analysis in cases such

as the present one.” Luke, supra, at ¶24. Essentially, method number three of

establishing the reliability of scientific evidence, presentation of evidence, is

9
unnecessary, because method number four, legislative recognition, has occurred. See

¶11, supra. The trial court has been relieved of the responsibility of determining the

scientific reliability of breath test machines, and to proceed with a Daubert/Miller hearing

would be an improper substitution of “the court’s judgment as to the reliability of the

testing procedures for that of the Director of Health.” Brockaway at 231.

{¶23} We note, however, that such statutory recognition is “not without

problems. For example, in State v. Vega, the Ohio Supreme Court held that, once the

Intoxilyzer was legislatively recognized ‘an accused may not make a general attack

upon the reliability and validity of the breath testing instrument.’ This holding is

inconsistent with Rule 104(E), which provides that a ruling on the admissibility of

evidence does not limit the ‘right of a party to introduce before the jury evidence

relevant to the weight or credibility.’” Giannelli, supra.

{¶24} Therefore, the statutory recognition of the Intoxilyzer 8000’s admissibility

in our view does not prevent a defendant from introducing evidence as to the general

unreliability of this specific machine through the use of expert opinion testimony. Such

testimony does not challenge the admissibility of the breath test results; rather it

challenges the weight and credibility to be given to the results. A defendant who wishes

to call such an expert at trial would merely be constrained by the requirements of

Crim.R. 16(K) and Evid.R. 702. Determination of the admissibility of a defendant’s

expert in such circumstances would appropriately be resolved through a pre-trial

Daubert/Miller hearing, where the defendant would carry the burden of establishing the

evidentiary foundation for the admission of such expert’s testimony.

Application to Mr. Schrock’s Case

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 {¶25} Pursuant to Ohio Adm. Code 3701-53-02(A), the Director of Health has

specifically approved the following evidential breath testing instruments: BAC

DataMaster; BAC DataMaster K; BAC DataMaster cdm; Intoxilyzer model 5000 series

66, 68 and 68 EN; and Intoxilyzer model 8000 (OH-5). Mr. Schrock was tested using an

Intoxilyzer 8000, one of the health director-approved instruments. Therefore, the trial

court was obliged to recognize the general admissibility of Mr. Schrock’s test results.

{¶26} Mr. Schrock initially filed a motion to suppress, challenging, among other

things, the reliability of his specific test results based on noncompliance with the Ohio

Department of Health’s regulations. Although repeatedly set for hearing, the trial court

never adjudicated the motion to suppress. Mr. Schrock subsequently filed a motion in

limine, which contained a general challenge to the Intoxilyzer 8000 and sought a

Daubert hearing on the issue of admissibility; the kind of challenge specifically

prohibited under Vega and its progeny. In the wake of the state’s refusal to put on

Daubert evidence, the trial court granted the motion in limine, and determined the

breath test results to be inadmissible at trial. This determination was in direct

contravention of binding precedent: Vega out of the Supreme Court, and Urso, Ferrato,

and Eckersley out of this court. It is, also, substantially out of sync with the prevailing

position on this issue taken by the majority of Ohio appellate districts.

{¶27} The trial court’s position, as the court in Vega put it, “simply fails to afford

the legislative determination that intoxilyzer tests are proper detective devices the

respect it deserves.” Vega at 188. The trial court thus erred as a matter of law when it

issued a judgment entry in direct contravention of both binding precedent and

substantial persuasive authority. We, therefore, reverse the decision of the trial court

and remand the case.

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 {¶28} Upon remand, the trial court may not require the state to present evidence

of the Intoxilyzer 8000’s general reliability. So long as Mr. Schrock’s test was

administered in substantial compliance with the Ohio Department of Health’s directives,

the results will be admissible at trial. Mr. Schrock may challenge the reliability and

weight of his specific test results, however, either through a motion to suppress, or at

trial.

{¶29} It is at this point that we must question the procedure upon remand

outlined in Rouse and Carter, as we find these cases may have created an improper

burden shifting requirement when the state is faced with a specific challenge to the test

results. The Rouse court held that upon remand, “[defendant] is entitled, but has the

burden of production, to specifically challenge the results of her breath test.” (Emphasis

added.) We agree with the concurring opinion in Rouse, that “the state bears the

burden of showing compliance with regulations prescribed by the Ohio director of

health.” Id. at ¶25.

{¶30} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, the Supreme

Court of Ohio clearly laid out the manner in which burden shifting is to occur in a motion

to suppress specific alcohol test results. “The defendant must first challenge the validity

of the alcohol test by way of a pretrial motion to suppress * * *. After a defendant

challenges the validity of the test results in a pretrial motion, the state has the burden to

show that the test was administered in substantial compliance with the regulations as

prescribed by the Director of Health. Once the state has satisfied this burden and

created a presumption of admissibility, the burden then shifts to the defendant to rebut

that presumption by demonstration that he was prejudiced by anything less than strict

compliance. State v. Brown (1996), 109 Ohio App.3d 629, 632, 672 N.E.2d 1050.

12
Hence, evidence of prejudice is relevant only after the state demonstrates substantial

compliance with the applicable regulation.” Id. at ¶24.

{¶31} Therefore, upon remand, Mr. Schrock may pursue a motion to suppress

his test results so long as the challenge is specific in nature. Any suppression hearing

will be conducted in accordance with the procedure that was clearly delineated in

Burnside and has been, for decades, the common practice by courts within this district

and all others in Ohio.

{¶32} The decision of the Portage County Municipal Court, Ravenna Division, is

reversed and remanded for further proceedings consistent with this opinion.

CYNTHIA WESTCOTT RICE, J., concurs in judgment only with Concurring Opinion,

THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.

____________________

CYNTHIA WESTCOTT RICE, J., concurs in judgment only with Concurring Opinion.

{¶33} Based upon a strict reading of State v. Vega, 12 Ohio St.3d 185 (1984),

the majority observes that a defendant cannot challenge the general scientific reliability

of the Intoxilyzer 8000 via a pretrial motion to suppress. Instead, the majority maintains,

breath test results are admissible pursuant to the legislative mandate recognized in

Vega. The majority opines, however, that the admissibility of the results does not

preclude a defendant from challenging the “general unreliability” of the machine at trial

via expert testimony at trial. While I concur with the majority’s disposition of this case, I

do not agree with the majority’s analysis in reaching its decision. I therefore concur in

judgment only.

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 {¶34} In this case, the lower court sustained appellee’s motion premised upon

the state’s failure to produce evidence of the Intoxilyzer 8000’s general reliability. Under

Vega, once suitable methods for breath analysis are established by the Director of

Health, pursuant to the legislative directive, a statutory presumption of reliability then

attaches to the approved testing devices. “Administrative rules enacted pursuant to a

specific grant of legislative authority are to be given the force and effect of law.” Doyle

v. Ohio Bureau of Motor Vehicles, 51 Ohio St.3d 46 (1990), paragraph one of the

syllabus. Further, once the Director of Health has promulgated regulations for breath

testing instruments, they are to be given the force and effect of law. State v. Yoder, 66

Ohio St.3d 515, 519 (1993) (Wright, J., dissenting), citing Doyle, supra. Thus, Ohio

Adm.Code 3701-53-02, which approved the Intoxilyzer 8000 as an evidential breath

testing instrument, has the force and effect of law.

{¶35} Appellee filed a motion in limine that challenged the general reliability of

the Intoxilyzer 8000. Although the motion lacked any clear specificity as to what legal or

factual bases appellee was challenging, the court granted the motion because the state

failed to produce any evidence demonstrating the test results were reliable.

{¶36} Vega held that a “general attack upon the reliability * * * of the breath

testing instrument” is prohibited. (Emphasis added.) Id. at 190. This holding, however,

allows for a specific challenge to the reliability of the Intoxilyzer 8000. Id. at 189. The

majority appears to acknowledge this, but maintains such a challenge must occur at

trial. I disagree with the majority’s analysis of this point.

{¶37} Given the interplay of the statutory scheme and the relevant case law, I

would hold that once the state establishes an approved breath testing device was used,

a presumption of reliability attaches. This presumption, however, does not

14
automatically render the results admissible. Rather, a defendant, based upon specific

challenges included in his motion to suppress, has the responsibility, during a pretrial

hearing on the motion, to rebut the presumption by producing evidence of how, in his

case, the breath test results were unreliable. In my view, therefore, a trial judge, after

hearing specific evidence relating to the approved machine’s purported unreliability,

possesses the discretion to either admit or exclude the evidence. See R.C.

4511.19(D)(1)(b) (a trial judge, “in any criminal prosecution * * * may admit evidence on

the concentration of alcohol * * * in the defendant’s * * * breath[.]”)

{¶38} Here, neither party disputes the Intoxilyzer 8000 was used. And since the

Director of Health determined that the Intoxilyzer 8000 is reliable, it must be presumed

the device is reliable. See Yoder, supra, at 518 (“[I]n promulgating this regulation, it

must be presumed that the Director of Health acted upon adequate investigation * * *.

We must defer to the department’s authority and we may not substitute our judgment for

that of the Director of Health.”) Given these points, the state did not have the burden to

produce evidence of the machine’s reliability as a predicate for presenting appellee’s

breath test results. To the contrary, because the instrument is presumed to be a

reliable breath testing instrument, appellee had the burden to produce evidence that the

Intoxilyzer is not reliable. Thus, while I agree with the majority that the trial court erred

in requiring the state to produce evidence of the Intoxilyzer 8000’s general reliability and

in granting appellee’s motion to suppress, I write separately to underscore my position

that (1) the admissibility of Intoxilyzer results may be specifically challenged in a pretrial

motion to suppress and (2) once the presumption of reliability is triggered, it is the

defendant’s, not the state’s, burden to go forward.

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 {¶39} Therefore, while I agree with the disposition reached by the majority, I

concur in judgment only.

____________________

THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.

{¶40} 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.

{¶41} 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.

{¶42} 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,

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

16
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.)

{¶43} 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).

{¶44} 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).

{¶45} Moreover, the determination of evidential reliability necessarily implicates

the defendant’s substantive due process rights.

{¶46} “Substantive due process, [although an] ephemeral concept, protects

specific fundamental rights of individual freedom and liberty from deprivation at the

17
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).

{¶47} 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).

{¶48} 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.

Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary

(8 Ed.Rev.2004) 11.

{¶49} 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

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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.

{¶50} 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.

{¶51} 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.

{¶52} 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

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

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8000 is unreliable, approval would amount to an abuse of discretion and admission of

the test results a violation of substantive due process.

{¶53} 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).

{¶54} 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).

{¶55} 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

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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.

{¶56} 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.

{¶57} 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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