[Cite as State v. Schmidt, 2015-Ohio-146.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       13CA010499

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
GREGORY D. SCHMIDT                                    COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   12CR084583

                                 DECISION AND JOURNAL ENTRY

Dated: January 20, 2015



        HENSAL, Judge.

        {¶1}     Appellant, the State of Ohio, appeals a judgment of the Lorain County Court of

Common Pleas that granted Appellee, Gregory D. Schmidt’s, motion in limine and motion to

suppress. For the following reasons, this Court reverses.

                                                 I.

        {¶2}     On February 1, 2012, Mr. Schmidt was arrested by the North Ridgeville Police.

He submitted to a breath-alcohol test using an Intoxilyzer 8000, which measured his alcohol

concentration at .097. Mr. Schmidt was later indicted by the Grand Jury for one count each of:

(1) operating a vehicle under the influence of alcohol and/or a drug of abuse in violation of

Revised Code Section 4511.19(A)(1)(a), a felony of the fourth degree; (2) operating a vehicle

under the influence of alcohol and/or a drug of abuse in violation of Revised Code Section

4511.19(A)(1)(d), a felony of the fourth degree; and (3) failure to reinstate a license in violation

of Revised Code Section 4510.21(A), a misdemeanor of the first degree.
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       {¶3}    Mr. Schmidt filed a motion in limine seeking to preclude the State from

introducing evidence of the test results. The trial court scheduled the motion for a “suppression”

and “Daubert” hearing, which was continued multiple times. Mr. Schmidt filed a separate

motion to suppress on various grounds, including that the specific Intoxilyzer 8000 used in his

test was faulty. The trial court subsequently scheduled a “suppression/[D]aubert” hearing that

was also continued multiple times.

       {¶4}    When the hearing occurred, the prosecution stated on the record prior to the

taking of testimony that the hearing was “more or less” a Daubert hearing, but that it was

“assuming that [the] Daubert and the motion to suppress will end up at some point * * * going

hand in hand” if the court were to exclude the Intoxilyzer 8000 results. Both the trial judge and

Mr. Schmidt’s attorney agreed with the State’s recitation of its understanding as to the purpose of

the hearing. The trial court then held an evidentiary hearing that focused solely on the reliability

and efficacy of the Intoxilyzer 8000. The State objected to the court holding the hearing and did

not participate either through direct or cross-examination. The court granted both the motion in

limine and motion to suppress after concluding that the Intoxilyzer 8000 does not produce

scientifically valid and reliable results. The State appealed arguing that the court erred in

granting the motions.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY GRANTING MR. SCHMIDT’S MOTION IN
       LIMINE/TO SUPPRESS HIS INTOXILYLZER 8000 BREATH TEST
       RESULTS.

       {¶5}    The State argues that the trial court erred in granting Mr. Schmidt’s motions

because the Ohio Supreme Court holding in State v. Vega, 12 Ohio St.3d 185 (1984), prohibits a
                                                  3


challenge to the general reliability and validity of a breath alcohol testing device that is approved

by the Ohio director of health. It further argues that the trial court erred by utilizing the analysis

set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to find that the

Intoxilyzer 8000 is not a scientifically reliable testing device. We agree.

       {¶6}    Mr. Schmidt moved for an order precluding the State from proffering evidence of

his Intoxilyzer 8000 results because it would be unable to call a witness who could offer expert

testimony that was satisfactory under either the requirements of Evidence Rule 702 or the

standard set forth in Daubert. He argued in his motion that the State should be required to

satisfy Rule 702 prior to admission of any test results because “[i]t is widely known that the

Department of Health has the ability to change the results of the breath testing device at issue in

[his] case” and the specific machine used in his test produced numerous errors that suggested it

was unreliable. The State opposed the motion arguing that the Ohio Supreme Court’s holding in

Vega and Revised Code Section 4511.19 prohibited Mr. Schmidt from challenging the general

admissibility of his test results if the test was appropriately administered.

       {¶7}    Mr. Schmidt’s subsequent motion to suppress reiterated this same argument. He

further argued in his motion to suppress that he was “not making a general attack on the theories

and scientific procedures at use for the Intoxilyzer 8000, rather the defense is making a very

specific attack on a machine that very clearly does not appear to work.” According to Mr.

Schmidt, because he alleges that his specific test results were unreliable, the State should be

required to establish that the Intoxilyzer 8000 itself is reliable under the standards set forth in

Evidence Rule 702 and Daubert. In support of his argument, he maintained that the machine

produced two fatal errors that required that it be taken out of service until the Department of

Health could assess its functionality. He further argued that his test was not conducted in
                                                  4


accordance with applicable regulations as a dry gas control was not administered before and after

the test.

Motion in Limine

         {¶8}    “A motion in limine is a precautionary request, directed to the inherent discretion

of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area

until its admissibility is determined by the court outside the presence of the jury.” State v.

Grubb, 28 Ohio St.3d 199, 201, quoting State v. Spahr, 47 Ohio App.2d 221, 224 (2d Dist.1976).

In most cases, an order granting a motion in limine is interlocutory. Id. The Ohio Supreme

Court has held, however, that

         [a]ny motion, however labeled, which, if granted, restricts the state in the
         presentation of certain evidence and, thereby, renders the state’s proof with
         respect to the pending charge so weak in its entirety that any reasonable
         possibility of effective prosecution has been destroyed, is, in effect, a motion to
         suppress. The granting of such a motion is a final order and may be appealed * *
         *.

State v. Davidson. 17 Ohio St.3d 132 (1985), syllabus. Accordingly, as a preliminary matter, this

Court concludes that the trial court’s decision granting Mr. Schmidt’s motion in limine was a

final appealable order.

         {¶9}    Rule 702 provides that a witness may testify as an expert if all of the following

apply:

         (A)    The witness’ testimony either relates to matters beyond the knowledge or
                experience possessed by lay persons or dispels a misconception common
                among lay persons;

         (B)    The witness is qualified as an expert by specialized knowledge, skill,
                experience, training, or education regarding the subject matter of the
                testimony;

         (C)    The witness’ testimony is based on reliable scientific, technical, or other
                specialized information. To the extent that the testimony reports the results
                                                 5


              of procedure, test, or experience, the testimony is reliable only if all of the
              following apply:

             (1)      The theory upon which the procedure, test, or experiment is based
             is objectively verifiable or is validly derived from widely accepted
             knowledge, facts, or principles;

             (2)     The design of the procedure, test, or experiment reliably
             implements the theory;

             (3) The particular procedure, test, or experiment was conducted in a way
             that will yield an accurate result.

“The qualification and reliability requirements of Evid.R. 702 are distinct. Because even a

qualified expert is capable of rendering scientifically unreliable testimony, it is imperative for a

trial court, as gatekeeper, to examine the principles and methodology that underlie an expert’s

opinion.” Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 17.

       “In evaluating the reliability of scientific evidence, several factors are to be considered:

(1) whether the theory or technique has been tested, (2) whether it has been subjected to peer

review, (3) whether there is a known or potential rate of error, and (4) whether the methodology

has gained general acceptance.” Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611 (1998),

citing Daubert at 593-594. “A trial court’s role in determining whether an expert’s testimony is

admissible under Evid.R. 702(C) focuses on whether the opinion is based upon scientifically

valid principles, not whether the expert’s conclusions are correct or whether the testimony

satisfies the proponent’s burden of proof at trial.” Miller at paragraph one of the syllabus.

       {¶10} Revised Code Section 4511.19(D)(1)(b) provides that the court “may” admit

evidence of a breath-alcohol test that is “analyzed in accordance with methods approved by the

director of health * * * pursuant to section 3701.143 of the Revised Code.” Revised Code

Section 3701.143 vests the director of health with the responsibility to determine techniques or

methods for chemically analyzing a person’s breath alcohol level. Pursuant to that section, the
                                                 6


director “shall approve satisfactory techniques or methods * * * to perform such analyses.” R.C.

3701.143. The Intoxilyzer 8000 is approved by the director of health as an “evidential breath

testing instrument[ ] for use in determining whether a person’s breath contains a concentration of

alcohol prohibited * * * by section [ ] 4511.19 * * * of the Revised Code[.]” Ohio Adm.Code

3701-53-02(A)(3).

       {¶11} The Ohio Supreme Court has held that Section 4511.19 creates a rebuttable

presumption that the defendant was under the influence of alcohol if the test concludes that the

person had a prohibited concentration of alcohol in his system. Vega, 12 Ohio St.3d. at 187.

The Vega court recognized that, while the defendant may not challenge the general reliability of

breath-alcohol testing machines, such as the Intoxilyzer 8000, “[t]here is no question that the

accused may * * * attack the reliability of the specific testing procedure * * *.” Id. at 189. See

also State v. Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, syllabus (“The approval of a breath-

analyzer machine * * * does not preclude an accused from challenging the accuracy,

competence, admissibility, relevance, authenticity, or credibility of specific test results or

whether the specific machine used * * * operated properly at the time of the test.”). The court

further stated that any expert testimony that the defense presented at trial pertaining to the

specific test in question, would go to its weight as evidence rather than its admissibility. Vega at

189.

       {¶12} In State v. Schwarz, 9th Dist. Medina No. 02CA0042-M, 2003-Ohio-1294, this

Court refused to disregard the Vega decision and adopt the defendant’s argument that the Vega

holding violated his constitutional rights.    Id. at ¶ 10. We recognized that the legislative

presumption created in Revised Code Section 4511.19 “resolved the questions of reliability and

relevancy of intoxilyzer tests, even though some experts disagree.” Id. at ¶ 8, citing Vega at 188.
                                                   7


       {¶13} Several of our sister districts have recently concluded that it is not necessary to

determine the general reliability of the Intoxilyzer 8000 under Daubert and Evidence Rule 702

given the legislative mandate established by Section 4511.19(D)(1)(b) and the Vega holding.

See State v. Zanni, 4th Dist. Ross No. 13CA3392, 2014-Ohio-2806, ¶ 19; State v. Smith, 11th

Dist. Portage No. 2012-P-0076, 2013-Ohio-640, ¶ 24. See also State v. Luke, 10th Dist. Franklin

No. 05AP-371, 2006-Ohio-2306, ¶ 24-25 (concerning results from BAC Datamaster). See also

Ilg, 2014-Ohio-4258 at ¶ 23 (“Because the legislature provided for the admissibility of

Intoxilyzer tests if analyzed in accordance with methods approved by the director of [the Ohio

Department of Health], an accused may not present expert testimony attacking the general

scientific reliability of approved test instruments.”).

       {¶14} Mr. Schmidt argues that the trial court is permitted to evaluate the reliability of

scientific evidence, such as Intoxilyzer 8000 results, since it is the “gatekeeper” of the

admissibility of such evidence under Daubert and Revised Code Section 4511.19(D)(1)(b). He

points to the statute’s use of the permissive word “may” as evidence that the trial court is vested

with discretion to admit breath-alcohol results. See R.C. 4511.19(D)(1)(b). He further argues

that the Vega holding permits a specific attack on the general reliability of the particular machine

used in his case. Mr. Schmidt urges us to adopt the reasoning of the Eleventh District and

employ a burden-shifting analysis to examine a specific challenge to the general reliability of a

breath-testing device. Under such an analysis, he argues, the State failed to meet its reciprocal

burden to demonstrate that the Intoxilyzer 8000 is scientifically reliable as a breath-alcohol

testing device.

       {¶15} In support of his motion in limine, Mr. Schmidt offered the testimony of his

expert, Dr. Albert E. Staubus, who set forth numerous reasons why, in his opinion, the
                                                  8


Intoxilyzer 8000 is not a reliable and valid breath-testing device despite its approval by the

director of health. Dr. Staubus was the sole witness at the hearing. His testimony largely

concerned the alleged flaws and unreliability of the Intoxilyzer 8000 in general with the

exception of a discussion as to the supposed impact of the volume of Mr. Schmidt’s breath

sample in elevating his breath-alcohol concentration. He opined that the larger the volume of the

breath sample provided, the higher the resulting breath-alcohol concentration.

       {¶16} In its order granting Mr. Schmidt’s motions in limine and to suppress, the trial

court made general findings about the validity and reliability of the Intoxilyzer 8000 that were

not specific to Mr. Schmidt’s test results or the machine used in his case. It found that, “[t]o

admit the results of the Intoxilyzer 8000 into the evidence at trial * * * to prove a per se violation

of R.C. 4511.19, given what is known about the instrument through scientific study and testing,

would violate Daubert and its progeny, Evid.R.702, and * * * the right of the accused to * * *

due process.”    The trial court further found that, specifically in Mr. Schmidt’s case, the

Intoxilyzer 8000’s results were invalid and unreliable because the device should not render

different results based on the volume of the sample provided.

       {¶17} After a careful review of the record, this Court concludes that to the extent that

the trial court purported to grant Mr. Schmidt’s motion in limine, it erred given that Mr. Schmidt

impermissibly challenged the general reliability of the Intoxilyzer 8000. As the Ohio Supreme

Court recognized in Miller, an analysis under Evidence Rule 702 focuses on the reliability of the

principles and methods used to reach the opinion. See Miller, 80 Ohio St.3d 607 at paragraph

one of the syllabus. The trial court’s decision utilized Rule 702 and the standards set forth in

Daubert to conclude that Mr. Schmidt’s test results should be excluded as evidence. Because the

inherent focus under such an analysis is on the foundational science that forms the basis of the
                                                 9


expert’s opinion, Mr. Schmidt’s attack concerned the scientific principles behind the Intoxilyzer

8000 machine.

       {¶18}    Given the Ohio Supreme Court’s holding in Vega and Ilg, the legislature’s

creation of a statutory presumption of reliability, and this Court’s precedent, we conclude that the

trial court erred in granting Mr. Schmidt’s motion in limine by applying Evidence Rule 702 and

the Daubert standards.

Motion to Suppress

       {¶19} This Court notes that the trial court’s judgment granted not only Mr. Schmidt’s

motion in limine, but also his motion to suppress.

        Appellate review of a motion to suppress presents a mixed question of law and
       fact. When considering a motion to suppress, the trial court assumes the role of
       trier of fact and is therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. Consequently, an appellate court must
       accept the trial court’s findings of fact if they are supported by competent,
       credible evidence. Accepting these facts as true, the appellate court must then
       independently determine, without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶20} Mr. Schmidt’s motion to suppress was not addressed at the Daubert/motion in

limine hearing. In his motion to suppress, Mr. Schmidt challenged, inter alia, the propriety of the

stop and arrest, whether the field sobriety tests were administered in substantial compliance with

the testing standards, whether his specific breath sample was taken in compliance with the OAC,

the absence of standards for the issuance of an operator access card in the regulations as required

by Section 3701.143, and whether the statements by Mr. Schmidt were taken in violation of his

constitutional rights. Despite the fact that there was no hearing directed to the issues raised by

the motion to suppress, the trial court’s judgment grants the motion to suppress. Additionally, it

fails to clarify which evidence is actually suppressed. Under these circumstances, this Court
                                                 10


must reverse the trial court’s decision granting the motion to suppress and remand the matter for

the trial court to determine whether a hearing specifically on the motion to suppress is warranted,

and, if nothing else, to set forth the basis for its decision to grant the motion to suppress and to

specify the evidence suppressed. We make no determination, therefore, as to whether the trial

court erred in granting Mr. Schmidt’s motion to suppress as the issue is not yet ripe for our

review.

                                                III.

          {¶21} The State’s assignment of error is sustained. The judgment of the Lorain County

Court of Common Pleas is reversed, and the cause is remanded for further proceedings.


                                                                               Judgment reversed,
                                                                              and cause remanded.



          There were reasonable grounds for this appeal.

          We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

          Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellee.




                                            JENNIFER HENSAL
                                            FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.

JOSEPH C. PATITUCE and CATHERINE R. MEEHAN, Attorneys at Law, for Appellee.
