[Cite as State v. Flanagan, 2013-Ohio-1741.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellant,          :
                                                        CASE NO. 2012-P-0137
        - vs -                                 :

ANDREW T. FLANAGAN,                            :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 3364.

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).

Craig M. Stephens, 206-A South Meridian Street, P.O. Box 229, Ravenna, OH 44266
(For Defendant-Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals from the judgment of the

Portage County Municipal Court, Ravenna Division, granting defendant-appellee,

Andrew T. Flanagan’s, Motion in Limine/Motion to Suppress. The issue to be decided in

this case is whether a trial court, in the performance of its role as gatekeeper, may

require the State to demonstrate the general scientific reliability 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 and remand the decision of the court below.

      {¶2}   On March 14, 2012, Flanagan was issued a traffic ticket, charging him

with Operating a Vehicle While Under the Influence (OVI), a misdemeanor of the first

degree, in violation of R.C. 4511.19(A)(1)(a); OVI, a misdemeanor of the first degree, in

violation of R.C. 4511.19(A)(1)(h); and No Rear-Plate Light, a minor misdemeanor, in

violation of R.C. 4513.05.

      {¶3}   On July 12, 2012, Flanagan filed a Motion in Limine/Motion to Suppress.

In this Motion, he asserted various specific challenges related to the breath test

including, inter alia, that the test was not conducted in accordance with the pertinent

administrative code provisions and that the machine operator was not properly qualified.

An Amended Motion in Limine/Motion to Suppress was filed on July 17, 2012, adding

that the results of the intoxilyzer breath test should be suppressed pursuant to the trial

court’s prior holding in State v. Johnson, Portage Municipal Court Case No. R 2011

TRC 4090, and the State’s refusal to present evidence of the intoxilyzer’s scientific

reliability. The State filed a response, arguing that the State need not present evidence

to establish the general reliability of the Intoxilyzer 8000, citing State v. Vega, 12 Ohio

St.3d 185, 465 N.E.2d 1303 (1984).

      {¶4}   On October 15, 2012, a hearing was held on the Motion in Limine/Motion

to Suppress. No transcript of this hearing was filed.

      {¶5}   In an October 22, 2012 Journal Entry, the trial court granted Flanagan’s

Motion in Limine/Motion to Suppress with respect to the results of the Intoxilyzer 8000.

The court limited its review of Flanagan’s Motion “solely to the admissibility of a BAC




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test from the Intoxilyzer 8000.” It applied its holding in Johnson to the present case. In

Johnson, the trial court held that the State was required to present evidence at a

hearing for the trial court to determine the general scientific reliability and admissibility of

the breath test results of the Intoxilyzer 8000. Based on the foregoing, the trial court

held that the “breath test results from the Intoxilyzer 8000 are not admissible at the trial

of Defendant” and that “[t]he remaining charges alleging a violation of ORC

4511.19(A)(1)(a) and 4513.05 shall be set for trial on the Court’s docket.” The court

also stayed further proceedings in the matter pending the outcome of the appeal.

       {¶6}   The State timely appeals and raises the following assignment of error:

       {¶7}   “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.”

       {¶8}   The appropriate standard of review where the lower court’s judgment is

challenged on a purported misconstruction of the law is de novo. State v. Morris, 132

Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.

       {¶9}   In its sole assignment of error, the State argues that, pursuant to Sections

3701.143 and 4511.19(D)(1)(b) of the Ohio Revised Code, and Ohio Administrative

Code 3701-53-02(A)(3), a trial court is required to accept the Intoxilyzer 8000 as an

appropriate device for chemically analyzing a person’s breath to ascertain the amount of

alcohol in the breath.

       {¶10} The Johnson case, relied upon by the municipal court, has been reversed.

State v. Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440, ¶ 32 (“the legislature has

allowed the director of the department of health to determine that the Intoxilyzer 8000 is




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generally reliable”). This court has held, in many other decisions, that the State is not

required to introduce evidence of the Intoxilyzer 8000’s scientific reliability for the breath

test results to be admissible. State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-

5585, ¶ 26, quoting Vega, 12 Ohio St.3d at 190, 465 N.E.2d 1303 (“an accused may not

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

Flanagan raises no arguments that have not already been considered by this court in its

previous decisions, such that a different holding would be warranted.

       {¶11} The sole assignment of error is with merit.

       {¶12} For the foregoing reasons, the judgment of the Portage County Municipal

Court, Ravenna Division, granting Flanagan’s Motion in Limine/Motion to Suppress, is

reversed, and this cause is remanded for further proceedings consistent with this

opinion. Costs to be taxed against appellee.



CYNTHIA WESTCOTT RICE, J., concurs,

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



                                ______________________



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

       {¶13} 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.




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       {¶14} 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.

       {¶15} 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.)

       {¶16} 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 * * *.”




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Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107 (1971); State v. Suchevits,

138 Ohio App.3d 99, 102 (11th Dist. 1999).

       {¶17} 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).

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

the defendant’s substantive due process rights.

       {¶19} “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




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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).

       {¶20} 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).

       {¶21} The trial court was aware that other courts had deemed the Intoxilyzer

8000 unreliable even though it was approved. Against this 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.

       {¶22} 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.




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       {¶23} 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.

       {¶24} 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.

       {¶25} 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 the defense asserts

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.




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       {¶26} 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).

       {¶27} 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).

       {¶28} 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 the state to produce

evidence of the Intoxilyzer 8000’s reliability, independent and irrespective of the




                                               9
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.

       {¶29} 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.

       {¶30} 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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