[Cite as State v. Gold, 2013-Ohio-5813.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellant,           :
                                                        CASE NO. 2012-P-0134
        - vs -                                  :

KANDI R. GOLD,                                  :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2012 TRC 07082.

Judgment: 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).

Brian L. Coffman, 159 South Main Street, Suite 808, Akron, OH                 44308 (For
Defendant-Appellee).



THOMAS R. WRIGHT, J.

        {¶1}     This accelerated calendar appeal is from an order of the Portage County

 Municipal Court, Ravenna Division, granting the motion to suppress the results of a

 breath test performed on an Intoxilyzer 8000. Appellant, the State of Ohio, contends

 that the trial court erred in allowing appellee, Kandi R. Gold, to raise a general attack

 upon the reliability of the breath test machine, and assigns the following error:
      {¶2}   “The Portage County Municipal Court erred as a matter of law by

permitting a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to

Ohio statutes and well-established case law.”

      {¶3}   As a threshold matter, we note that appellee styled her challenge to the

reliability of the breath test machine as a motion in limine rather a motion to suppress.

“The determination of whether a motion is a ‘motion to suppress’ or a ‘motion in limine’

does not depend on what it is labeled. It depends on the type of relief it seeks to

obtain.” State v. Davidson, 17 Ohio St.3d 132, 135 (1985). Thus, despite the caption,

our review of appellee’s motion to exclude the Intoxilyzer 8000 results indicates that it

was, in fact, a motion to suppress, which if granted, would diminish appellant’s ability to

prosecute her. Id.

      {¶4}   Pursuant to this court’s en banc judgment and opinion in State v.

Bergman, 11th Dist. Portage 2012-P-0124, 2013-Ohio-___, appellant’s assignment of

error has merit.     The trial court’s judgment is reversed, and remanded for further

proceedings.



TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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