[Cite as State v. Butler, 2013-Ohio-543.]

                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellant,           :
                                                        CASE NO. 2012-P-0066
        - vs -                                  :

MICHAEL B. BUTLER,                              :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2012 TRC 00031.

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).

R. Brian Moriarty, R. Brian Moriarty, L.L.C., 2000 Standard Building, 1370 Ontario
Street, Cleveland, OH 44113 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, the state of Ohio, appeals the judgment of the Portage County

Municipal Court, Ravenna Division, granting the motion to suppress of appellee,

Michael B. Butler, to exclude evidence of the results of an Intoxilyzer 8000 test. At

issue is whether the trial court erred in requiring the state to present evidence of the

reliability of the Intoxilyzer 8000 as a predicate for the admission of Butler’s breath test

results at trial. Based on this court’s precedent in State v. Carter, 11th Dist. No. 2012-

P-0027, 2012-Ohio-5583, we reverse and remand.
       {¶2}   On January 3, 2012, a citation was filed against Butler charging him with

driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a), and driving

with a prohibited blood-alcohol concentration, in violation of R.C. 4511.19(A)(1)(d). He

was also cited for failure to control, in violation of R.C. 4511.202. Butler pled not guilty.

       {¶3}   On March 22, 2012, Butler filed a motion to suppress, arguing, inter alia,

that the results of his breath test from the Intoxilyzer 8000 should be suppressed

because the test was not administered in accord with procedures set forth in the

NHTSA Manual.         Thereafter, on April 5, 2012, Butler filed a brief captioned,

“supplemental authority concerning defendant’s motion to suppress.” In this brief, he

made two arguments. First, he argued that his breath test was invalid in that it was not

administered in compliance with Ohio Adm.Code 3701-53-04, which requires that the

Intoxilyzer 8000 automatically perform a dry gas control test before and after every

subject test. Second, appellant suggested, without noting any specifics, that the

Intoxilyzer 8000 is not reliable.

       {¶4}   On May 2, 2012, the state filed a brief, which it captioned as its opposition

to Butler’s motion in limine, although Butler had not as yet filed such a motion. In its

brief, the state apparently anticipated the argument the state expected Butler to make in

a motion in limine. The state argued that, pursuant to State v. Vega, 12 Ohio St.3d 185

(1984), it was not required to present evidence to establish the general reliability of the

Intoxilyzer 8000 prior to the state’s introduction of Butler’s breath test results. The state

argued that the legislature delegated to the Ohio Director of Health the authority to

determine reliable breath testing devices, and the Supreme Court in Vega upheld this

delegation.

       {¶5}   Thereafter, on May 4, 2012, Butler filed a motion in limine, again arguing

that his breath test was not performed in compliance with Ohio Adm.Code 3701-53-04,
                                              2
which, he repeated, requires a dry gas control test before and after every subject test.

He argued that, due to this violation and “recognizing that the issue if [sic] currently

pending on appeal,” the results from his Intoxilyzer 8000 test should be suppressed.

Butler did not argue, even generally, that the Intoxilyzer 8000 is unreliable.

       {¶6}     By its judgment, dated June 20, 2012, the trial court granted Butler’s

motion to suppress. The court found that, pursuant to its previous ruling in State v.

Johnson, Case No. R 11 TRC 4090, the state was required to produce evidence to

convince the court that the Intoxilyzer 8000 is reliable in order for its test results to be

admissible at trial. The court found that to deny Butler the opportunity to challenge the

scientific evidence of his guilt is a denial of due process. As a result, the court ordered

that the results of Butler’s breath test from the Intoxilyzer 8000 would not be admissible

at his trial.    The court stated it would set the remaining charges under R.C.

4511.19(A)(1)(a) and R.C. 4511.202 for trial.

       {¶7}     The state filed a motion to stay execution of the trial court’s judgment

pending appeal, which the trial court granted. The state now appeals the trial court’s

ruling on Butler’s motion to suppress, asserting one assignment of error. Butler has not

filed a brief on appeal. For its sole assigned error, the state alleges:

       {¶8}     “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.”

       {¶9}     As a preliminary matter, the state argues that the relief sought and

obtained by Butler from the filing of his motion to suppress establishes that the trial

court’s judgment entry was automatically appealable by the state. This court addressed

this same issue in Carter, supra. In Carter, this court held that, regardless of the label

of Carter’s motion, it was a motion to suppress since it resulted in the exclusion of
                                             3
evidence that was essential to prove the per-se OVI charge. Id. at ¶11. This court thus

held that the court’s ruling granting the motion to suppress was a final, appealable

order. Id. Based on this court’s determination in Carter, we hold that the trial court’s

judgment granting Butler’s motion to suppress was a final, appealable order.

       {¶10} Now turning to the merits of the state’s appeal, in granting Butler’s motion

to suppress, the trial court concluded that the state was required to establish by expert

testimony the reliability of the Intoxilyzer 8000 before Butler’s breath-test results could

be admitted at trial.    The court did not address Butler’s specific challenges to the

admissibility of his breath-testing procedure. The state argues on appeal, as it did in the

trial court, that it was not required to present expert testimony of the machine’s reliability

due to the legislative determination in R.C. 4511.19 that breath-testing instruments

approved by the Director of Health, including the Intoxilyzer 8000, are reliable.

       {¶11} Thus, the issue before us is whether the state was required to present

expert evidence to prove that the Intoxilyzer 8000 is a reliable breath-testing instrument

as a predicate for admitting Butler’s breath test results at trial.

       {¶12} This court addressed the identical issue in Carter, supra. In Carter, this

court noted that in Vega, supra, the Supreme Court of Ohio held that, in enacting R.C.

4511.19, the legislature delegated to the Director of Health, not the courts, the

discretionary authority to determine which breath-testing devices are reliable. Carter at

¶24, citing Vega at 189.        This court in Carter also noted that the Vega Court’s

prohibition against a general attack on the reliability of a Director-approved breath-

testing instrument allows for a specific challenge to the reliability of the Intoxilyzer 8000.

Carter at ¶35.

       {¶13} Based on this court’s decision in Carter, we hold that the trial court erred

in requiring the state to produce evidence of the Intoxilyzer 8000’s reliability and in
                                               4
granting Butler’s motion to suppress; further, pursuant to these erroneous rulings, the

trial court erred in excluding the results of Butler’s breath test with no evidence to

overcome the presumptive reliability of the Intoxilyzer 8000. Id. at ¶42.

       {¶14} In light of this court’s analysis in Carter, supra, once the state has

demonstrated an approved breath-testing device was used, a defendant may make

specific challenges to the general reliability of the Intoxilyzer 8000. In this case, it is

undisputed that the Intoxilyzer 8000 is an approved device. On remand, therefore,

Butler is entitled, but has the burden of production, to specifically challenge the general

reliability of the Intoxilyzer 8000.

       {¶15} For the reasons stated in this opinion, it is the judgment and order of this

court that the judgment of the Portage County Municipal Court, Ravenna Division, is

reversed, and this matter is remanded to the trial court for further proceedings as set

forth in this opinion.



TIMOTHY, P. CANNON, P.J., concurs,

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

                                       _______________


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

       {¶16} 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.

       {¶17} 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


                                             5
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.

       {¶18} 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

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.)

       {¶19} 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).

       {¶20} 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
                                             6
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).

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

the defendant’s substantive due process rights.

       {¶22} “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).

       {¶23} 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).

       {¶24} 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
                                            7
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.

       {¶25} 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.

       {¶26} 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.

       {¶27} 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
                                             8
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.

       {¶28} 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

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

the test results a violation of substantive due process.

       {¶29} 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).

       {¶30} 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
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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).

       {¶31} 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.

       {¶32} 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.

       {¶33} 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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