[Cite as State v. Mongeau, 2012-Ohio-5230.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-21
v.
MICHAEL J. MONGEAU, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin Municipal Court
Trial Court No. TRC 1200006B
Judgment Affirmed
Date of Decision: November 13, 2012
APPEARANCES:
James M. Ruhlen for Appellant
Drew E. Wood for Appellee
Case No. 13-12-21
SHAW, P.J.
{¶1} Defendant-appellant Michael Mongeau (“Mongeau”) appeals the
April 3, 2012, judgment of the Tiffin Municipal Court in Seneca County, Ohio,
sentencing him to thirty days in jail1 upon finding Mongeau guilty of OVI in
violation of R.C. 4511.19(A)(1)(D), a misdemeanor of the first degree, and failure
to drive in Marked Lanes in violation of R.C. 4511.33(A), a minor misdemeanor.
For the reasons that follow, we affirm the judgment of the Tiffin Municipal Court.
{¶2} On December 30, 2011, Mongeau was stopped at approximately 11:30
p.m. by Deputy Christopher Potter (“Deputy Potter”) of the Seneca County
Sheriff’s Office. While following Mongeau, Deputy Potter observed Mongeau
drift left of center twice and drift right across the white fog line. (Mar. 8, 2012,
Tr. at 13-14). Then, as Mongeau went around a curve, Deputy Potter observed
Mongeau drift so close to the guardrail Potter thought Mongeau was going to hit
the guardrail. (Id.) Deputy Potter then initiated a traffic stop. (Id.)
{¶3} When Deputy Potter approached the vehicle he observed a person he
would identify as Mongeau driving, that there was another female in the front of
the truck and that three people were in the back of the truck. (Id. at 14). Deputy
Potter detected “an extremely strong odor of an intoxicating beverage coming
from the vehicle.” (Id.) Deputy Potter noted that initially Mongeau would not
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All thirty days were conditionally suspended.
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look at him and answered him mostly with one word answers such as “yes” or
“no.” (Tr. at 15). According to Deputy Potter, the longer Mongeau spoke the
more slurred his speech became. (Id.) Due to the traffic violations, the odor of an
intoxicating beverage and the slurred speech, Deputy Potter asked Mongeau to
step out of the vehicle. (Id.)
{¶4} Mongeau originally denied drinking, but eventually during
questioning Mongeau stated that he had “three” and had stopped drinking at
around 7 p.m. (Id. at 16). Deputy Potter attempted to give Mongeau the HGN test
but Mongeau would not follow the stimuli so the test was terminated. (Tr. at 18).
Deputy Potter noticed that Mongeau’s eyes were red-bloodshot. (Tr. at 16). No
further field sobriety tests were performed because Mongeau stated due to back
surgery he was unable to perform the walk and turn test and the one leg stand test.
(Id. at 19). Deputy Potter then asked Mongeau if Mongeau would be willing to
submit to a breath test. (Id.) Mongeau responded by saying that he would be “a
hair above or a hair below.” (Id.)
{¶5} Mongeau was then placed under arrest for OVI and transported back
to the Seneca County Sheriff’s Office. (Id. at 20). There Mongeau submitted to a
breath test. The Sherriff’s Office had both a DataMaster and an Intoxilyzer
available for testing, but Deputy Potter chose to test Mongeau on the DataMaster.
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Mongeau’s blood alcohol content registered as a .127 on the DataMaster. (Id. at
22).
{¶6} Subsequently Mongeau was charged with OVI in violation of R.C.
4511.19(A)(1)(D) and failure to drive in Marked Lanes in violation of R.C.
4511.33(A). Mongeau pled not guilty to the charges.
{¶7} On February 1, 2011, Mongeau filed a “Motion to Suppress, Dismiss
and In Limine.” (Doc. 18). The Motion sought, inter alia, to suppress evidence of
the DataMaster test due to the fact that the “testing protocol consisted of only a
single breath test with no concurrent calibration checks” thus denying Mongeau
“due process of law and equal protection of the law in violation of the Fifth and
Fourteenth Amendments to the United States Constitution as well as parallel
provision[s] of the Ohio Constitution.” (Id.)
{¶8} On March 8, 2012, a hearing was held on the Motion to Suppress.
The State called Deputy Potter who testified to the events as described above and
then the State rested.
{¶9} Mongeau called Dr. Albert Staubus. Dr. Staubus testified that he was
familiar with the DataMaster and that he had taken training on it. (Id. at 42). Dr.
Staubus testified that “dual testing” to duplicate results would be better practice
for the DataMaster. (Id. at 44). Dr. Staubus also testified that the new Intoxilyzer
8000 uses “dual testing” procedures. (Id. at 46). However, Dr. Staubus admitted
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that there had been no changes to DataMaster policy, and that the current
regulations do not require dual testing. (Id. at 54-58). Dr. Staubus did not testify
to any particular irregularity in Mongeau’s test.
{¶10} Both the State and Mongeau submitted their closing arguments via
briefs. (Doc. 45); (Doc. 44). On March 30, 2012, the court overruled Mongeau’s
Motion to Suppress, finding that Dr. Staubus had no knowledge of Mongeau’s
individual test and that Staubus sought to show that the general testing procedure
related to the DataMaster was flawed. (Doc. 48). The trial court found this was
an “impermissible attack on the devise [sic]” under State v. Vega, 12 Ohio St.3d
185 (1984). (Id.)
{¶11} After the motion to suppress was overruled, Mongeau changed his
plea to “no contest.” (Apr. 3, 2012 Tr. at 6). Mongeau’s plea was accepted and
Mongeau was found guilty. (Id.) Ultimately Mongeau was sentenced to thirty
days in the Seneca County Jail with all thirty days suspended provided Mongeau
comply with the terms and conditions of probation. (Doc. 51). In addition,
Mongeau was placed on non-reporting probation for one year, ordered to complete
an approved Driver Intervention Program, and his license was suspended for six
months. (Id.) A judgment entry reflecting this sentence was filed that same day
on April 3, 2012.
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{¶12} It is from this judgment that Mongeau appeals, asserting the
following assignment of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DENYING APPELLANT’S MOTION TO SUPPRESS THE
RESULT OF APPELLANT’S BREATH TEST IN VIOLATION
OF DEFENDANT’S DUE PROCESS AND EQUAL
PROTECTION RIGHTS GUARANTEED BY THE FIFTH
AND THE FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AS WELL AS PARALLEL
PROVISIONS OF THE OHIO CONSTITUTION.
{¶13} In his assignment of error Mongeau argues that the court erred by
overruling Mongeau’s Motion to Suppress. Specifically, Mongeau argues that the
breath-testing procedure of the DataMaster is flawed and because of this Mongeau
was denied his right to Due Process. In addition, Mongeau argues that his right to
due process was violated by Deputy Potter electing to test Mongeau on the
DataMaster rather than the Intoxilyzer.
{¶14} “Appellate review of a decision on a motion to suppress evidence
presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,
2006-Ohio-601, ¶ 12, citing United States v. Martinez, 949 F.2d 1117, 1119 (11th
Cir.1992). The trial court serves as the trier of fact and is the primary judge of the
credibility of the witnesses and the weight to be given to the evidence presented.
State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist.2000). Therefore, when an
appellate court reviews a trial court’s ruling on a motion to suppress, it must
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accept the trial court’s findings of fact so long as they are supported by competent,
credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100.
The appellate court must then review the application of the law to the facts de
novo. Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶15} The applicable law on the Department of Health’s protocol on the
DataMaster is set forth in State v. Vega, 12 Ohio St.3d 185 (1984). In Vega the
Supreme Court of Ohio held “an accused may not make a general attack upon the
reliability and validity of the breath testing instrument.” Vega at 190. Further, “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.” Id. at 186.
{¶16} The Ohio Revised Code “clearly vests all authority relative to
determining the techniques and methods of chemically analyzing the alcohol
content in a person's blood, urine and breath for purposes of R.C. 4511.19, in the
director of health.” State v. Miller, (Dec. 15, 1998), Marion App. No. 9-98-42,
unreported, at 6, 1998 WL 876812. R.C. 3701.143 reads,
[T]he director of health shall determine or cause to be
determined, techniques or methods for chemically analyzing a
person's blood, urine, breath, or other bodily substance in order
to ascertain the amount of alcohol * * * in the person's blood,
urine, breath or other bodily substance.
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{¶17} While the Department of Health is granted authority to determine the
techniques and methods for testing, the Department of Health may not abuse its
discretion. State v. Sebach, 5th Dist. No 97 CA 24, 1998 WL 751902. An abuse
of discretion has been defined as unreasonable, arbitrary or unconscionable act.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶18} In this case, Mongeau argues that the DataMaster testing procedure is
flawed and therefore using the DataMaster to test his blood-alcohol content
violated his right to Due Process. Mongeau contends that the single breath test
required for the DataMaster is not sufficiently scientifically reliable. To support
this contention, Mongeau points to the testimony of Dr. Staubus from the
suppression hearing, wherein Staubus contended that a dual testing procedure
would be more scientifically reliable.
{¶19} We have found this identical argument—made by this identical
expert witness—to be a general attack on the DataMaster machine’s reliability,
and therefore an impermissible attack under Vega, supra. State v. Columber, 3d
Dist. No. 09-06-05, 2006-Ohio-5490, ¶ 13 (“We find that Staubus’ proffered
testimony regarding his preference of using the dual testing procedure to test
Columber’s breath amounted to an attack upon the reliability of the testing
procedures approved by the Director of the Ohio Department of Health.”).
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{¶20} Furthermore, the Tenth District Court of Appeals has also found this
attack to be invalid under Vega. In State v. Sabo, 10th Dist. No. 04AP-1114,
2006-Ohio-1521, like our own prior case in Columber, and in the case before us,
Dr. Staubus testified that a dual-testing procedure would be more reliable and that
a single test is not sufficiently reliable. The Tenth District held, “[i]n essence,
argument and testimony that the ‘basic testing procedure’ is flawed in ‘every case’
and that a single test is never scientifically reliable is an attack on the general
reliability of the testing procedure, not an attack on a specific test. The trial court
properly concluded that such a challenge is precluded by Vega.” Sabo, 2006-
Ohio-1521, ¶ 23.
{¶21} According to caselaw and our own analysis, Mongeau’s attack is an
attack on the general reliability of the testing procedure and therefore is an invalid
attack under Vega, supra. There was no testimony by Dr. Staubus or by anyone
else of any irregularities in Mongeau’s test. Thus the trial court did not err by
overruling Mongeau’s Motion to Suppress on this issue.
{¶22} Mongeau next argues that his Due Process rights were violated by
Deputy Potter’s decision to test Mongeau on the DataMaster rather than the
Intoxilyzer 8000. Despite Mongeau’s arguments, both machines are approved for
testing blood-alcohol content, and the regulations do not require use of one over
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the other if both are available. Ohio Adm.Code 3701-53-02(A). Therefore,
Mongeau’s argument is without merit.
{¶23} Finally, Mongeau argues that defendants are not prohibited from
challenging the weight of breath test evidence. Weight of evidence and credibility
of witnesses are issues for the trier of fact. State v. DeHaas, 10 Ohio St.2d 230
(1967). At trial, defense expert testimony is permissible if the testimony addresses
weight rather than admissibility. Vega, 12 Ohio St.3d at 189. Here we have
already held Mongeau was challenging the general reliability of the tests and their
admissibility. Therefore, his argument is precluded under Vega and the motion to
suppress was not improperly granted. Accordingly, Mongeau’s assignment of
error is overruled.
{¶24} For the foregoing reasons Mongeau’s assignment of error is
overruled and the judgment of the Tiffin Municipal Court is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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State v. Mongeau
Combined Opinion