[Cite as State v. Dugan, 2013-Ohio-447.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellant,                     :        CASE NO. CA2012-04-081

                                                 :               OPINION
   - vs -                                                         2/11/2013
                                                 :

LAUREN DUGAN,                                    :

        Defendant-Appellee.                      :




                      APPEAL FROM BUTLER COUNTY AREA III COURT
                                Case No. 11TRC01119


Michael T. Gmoser, Butler County Prosecuting Attorney, Donald R. Caster, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellant

Jeffrey C. Meadows, 8310 Princeton-Glendale Road, West Chester, Ohio 45069, for
defendant-appellee



        YOUNG, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals an order of the Butler County Area

III Court granting a motion to suppress filed by defendant-appellee, Lauren Dugan. For the

reasons stated below, we reverse the decision of the trial court.

        {¶ 2} On March 12, 2011, Dugan was pulled over for a center line violation. After a

series of sobriety tests, Dugan was arrested for operating a vehicle while under the influence
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of alcohol. Dugan was transported to the West Chester Police Department where she took a

breath-alcohol-content (BAC) test on the Intoxilyzer 8000. The Intoxilyzer printed out a

Subject Test Report which indicated that "Subject Sample 1" had a result of .171 and

"Subject Sample 2" had a result of .175. Dugan was then charged with operating a vehicle

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

4511.19(A)(1)(h).

       {¶ 3} Dugan pled not guilty to the charges and filed a motion to suppress. The trial

court held a hearing regarding the motion to suppress on September 9, 2011, and November

4, 2011. On the first day of the suppression hearing, the state presented two witnesses. The

first witness was Mary Martin, the Ohio Department of Health (ODH) program administrator of

alcohol and drug testing. Martin explained that she is "in charge of doing all of the policies

and procedures and reviewing the rules" for ODH and has been trained regarding the

construction and operation of the Intoxilyzer 8000. During her testimony, Martin explained

the meaning of terms found on various ODH documents. One of these documents was

Dugan's Subject Test Report printed out from the Intoxilyzer. Martin explained that the

Subject Test Report showed that the Intoxilyzer took two "subject samples" of Dugan's

breath. On cross-examination, Martin was questioned regarding the meaning of "sample

attempt" as used in the ODH documents. Martin explained that "sample attempt" refers to

the number of times a person blows into the Intoxilyzer.

       {¶ 4} West Chester Police Officer Michael Lopez also testified regarding his

involvement in the case. Lopez stopped Dugan for a center line violation, and administered

both the field sobriety tests and the breath test on the Intoxilyzer 8000. Lopez stated that he

recalls Dugan giving two breath samples into the Intoxilyzer that night. Additionally, Lopez

noted that the Subject Test Report showed that Dugan gave two samples of breath into the

Intoxilyzer. He explained that during the breath tests, the Intoxilyzer 8000 produces an

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audible tone when a person is blowing into the machine correctly. An interruption in the

audible tone will occur if the person stops blowing into the machine. Lopez stated that during

Dugan's test he did not remember any interruptions in the audible tone and that there was no

indication from the Intoxilyzer that she did not give an accurate sample.

       {¶ 5} On cross-examination, defense counsel presented Officer Lopez with a

document that contained details of Dugan's breath tests from the ODH website. The ODH

website collects and stores information obtained by the Intoxilyzer on a central database.

The document indicated that the Intoxilyzer recorded three "sample attempts" during Dugan's

first blow into the machine. Officer Lopez testified that he did not observe multiple attempts

at a valid sample collection for the first sample nor did he hear any interruption in the audible

tone during Dugan's breath tests. Lopez stated that the document was not consistent with

what he observed.

       {¶ 6} After Officer Lopez's testimony, the hearing was continued so that the state

could recall Martin regarding the alleged discrepancy between the ODH document and the

observations from Officer Lopez. On the second day of the suppression hearing, Martin

explained that the ODH website document contains more information about the breath test

than the Subject Test Report and the Subject Test Report does not include information about

sample attempts. She stated that as recorded on the ODH website document, "sample

attempt" refers to how many times air has been put into the breath hose during the attempt.

Therefore, any air that gets pushed into the mouthpiece counts as a sample attempt. Thus,

there could be multiple sample attempts even though an individual has not removed the hose

from her mouth. The machine registers these attempts without giving any audible tone, so

the officer administering the test might be unaware that the instrument had recorded a

sample attempt.

       {¶ 7} On March 20, 2012, the trial court partially granted Dugan's motion to suppress
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the breath-test result reasoning that the Intoxilyzer 8000 was flawed when used to measure

Dugan's BAC. The court overruled Dugan's motion to suppress regarding all other issues.

       {¶ 8} The state now appeals, asserting a sole assignment of error:

       {¶ 9} THE TRIAL COURT ERRED IN SUPPRESSING THE RESULTS OF THE

BREATH TEST TAKEN BY DEFENDANT-APPELLEE.

       {¶ 10} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position to

weigh the evidence in order to resolve factual questions and evaluate witness credibility.

State v. Eyer, 12th Dist. No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate

court must accept the trial court's findings of fact so long as they are supported by

competent, credible evidence. State v. Lange, 12th Dist. No. CA2007-09-232, 2008-Ohio-

3595, ¶ 4. After accepting the trial court's factual findings as true, the appellate court must

then determine, as a matter of law, and without deferring to the trial court's conclusions,

whether the trial court applied the appropriate legal standard. State v. Dierkes, 12th Dist. No.

2008-P-085, 2009-Ohio-2530, ¶ 17.

       {¶ 11} We initially consider the parties' disagreement over whether the state's appeal

is proper under Crim. R. 12(K) and R.C. 2945.67. We then consider whether the court erred

in suppressing the BAC test results and the trial court's role in determining the admissibility of

BAC test results.

                                      Propriety of Appeal

       {¶ 12} We begin by addressing whether the state's appeal is proper under

Crim.R.12(K) and R.C. 2945.67. Dugan argues the state's appeal is improper because the

state failed to establish that it is unable to proceed with the prosecution due to the trial court's

suppression of the BAC test results.
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                                                                          Butler CA2012-04-081

       {¶ 13} R.C. 2945.67(A) allows a prosecutor in a criminal case to appeal as a matter of

right a decision of a trial court to suppress evidence. State v. Matthews, 81 Ohio St.3d 375,

377-378 (1998). Crim.R. 12(K) states in part:

              [w]hen the state takes an appeal as provided by law from an
              order suppressing evidence * * * the prosecuting attorney shall
              certify that both of the following apply:

              (1) the appeal is not taken for the purpose of delay;

              (2) the ruling on the motion or motions has rendered 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 * * *.

       {¶ 14} An appellate court is without authority to review a prosecutor's Crim.R. 12(K)

(formerly Crim.R. 12(J)) certification that the granting of a motion to suppress has rendered

the state's proof with respect to the pending charges so weak in its entirety that any

reasonable possibility of effective prosecution has been destroyed. State v. Bertram, 80

Ohio St.3d 281 (1997), paragraph two of the syllabus. Therefore, when a trial court grants a

motion to suppress evidence and the prosecutor has filed a proper Civ.R. 12(K) certification,

the appellate court does not have the discretion to decide whether to allow the appeal. Id. at

283.

       {¶ 15} We find that the appeal is proper pursuant to R.C. 2945.67 and Crim.R. 12(K).

In this case, the state was appealing the trial court's decision suppressing Dugan's Intoxilyzer

8000 test results. Thus, the state's appeal is a matter of right pursuant to R.C. 2945.67.

Additionally, the prosecutor certified that the appeal was not taken for purposes of delay and,

as a result of the trial court's decision, any reasonable possibility of effective prosecution with

respect to Dugan's alleged violation of R.C. 4511.19(A)(1)(h) was destroyed. As noted

above, once the prosecutor has certified that the trial court's decision suppressing the

evidence renders the pending charges so weak that it destroys the state's case, we are


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                                                                        Butler CA2012-04-081

unable to review the decision. Thus, we find this appeal proper.

                     Admissibility of Intoxilyzer 8000 Test Results

       {¶ 16} Next, we address whether the trial court erred in suppressing the Intoxilyzer

8000 breath test results.    The parties dispute the trial court's role in determining the

admissibility of BAC results from a breath testing instrument. The state argues that Ohio

Supreme Court jurisprudence prohibits a trial court from suppressing BAC results based on

the general unreliability of the breath testing instrument or because of a malfunction of the

specific machine. Instead, a trial court may only suppress BAC results upon a showing of a

violation of an ODH regulation. In this case, the state contends that no ODH regulations

were violated.

       {¶ 17} Dugan responds by arguing that the trial court's evidentiary gatekeeping role

along with the discretionary language in R.C. 4511.19 allows the court to suppress BAC

results based on evidence that the instrument is unreliable. Additionally, Dugan argues that

two ODH regulations were violated. Therefore, the court did not err in suppressing the test

results.

       {¶ 18} The Ohio General Assembly has addressed the admissibility of evidence from

various alcohol-determinative-testing devices in R.C. 4511.19(D)(1)(b). The statute provides:

             [i]n any criminal prosecution or juvenile 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 * * * in the defendant's * * * breath * * *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.

             ***

             The bodily substance withdrawn under (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 * * *.

       {¶ 19} Pursuant to R.C. 3701.143, the director of health shall determine the suitable
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methods for breath-alcohol analysis. The Intoxilyzer 8000 has been approved as one of

these breath-testing instruments. Ohio Adm.Code 3701-53-02(A)(3).

       {¶ 20} In State v. Vega, 12 Ohio St.3d 185 (1984), the Ohio Supreme Court addressed

whether an accused can use expert testimony to attack the general reliability of breath-

testing instruments in light of R.C. 4511.19. The Court stated that by enacting R.C. 4511.19,

the General Assembly acknowledged the wide acceptance of these machines and

"legislatively resolved the questions of the reliability and relevancy of intoxilyzer tests." Id. at

188.    The Court reasoned that the statute represented "the necessary legislative

determination that breath tests, properly conducted, are reliable * * * and that the common

law foundational evidence has, for admissibility, been replaced by statute and rule * * *." Id.

at 188-189. Therefore, "an accused may not make a general attack upon the reliability and

validity of the breath testing instrument." Id. at 190.

       {¶ 21} The Court went on to state that while an accused cannot challenge the general

reliability of BAC machines, "[t]here is no question that the accused may also attack the

reliability of the specific testing procedure and the qualifications of the operator. Defense

expert testimony as to testing procedures at trial going to weight rather than admissibility is

allowed." (Citations omitted.) Id. at 189. The Supreme Court upheld this result as applying

to per se OVI offenses a few months later. State v. Tanner, 15 Ohio St.3d 1, 6 (1984).

       {¶ 22} This district and others have universally recognized that Vega prohibits a

general attack on the reliability of breath testing instruments. State v. Plunkett, 12th Dist. No.

CA2001-01-012, 2008-Ohio-1014, ¶ 29; State v. Luke, 10th Dist. No. 05AP-371, 2006-Ohio-

2306, ¶ 22; State v. Birkhold, 5th Dist. No. 01CA104, 2002 WL 727154, *2 (April 22, 2002);

State v. Massie, 2d Dist. No. 2007CA24, 2008-Ohio-1312, ¶ 15; State v. Miller, 11th Dist. No.

2012-P-0032, 2012-Ohio-5585, ¶ 26. Additionally, some appellate courts have interpreted

Vega and subsequent Ohio Supreme Court cases to prohibit suppression of BAC test results
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                                                                         Butler CA2012-04-081

based on any argument regarding the reliability of a breath testing instrument. Plunkett at ¶

29; Luke at ¶ 31. See Massie at ¶ 16. Instead, the admission of BAC test results turns on

substantial compliance with ODH regulations. Id.

       {¶ 23} In Luke, the Tenth District found that the trial court erred when it suppressed

BAC results. In suppressing the test results, the trial court reasoned that pursuant to its

gatekeeping role in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786 (1993), the results were inadmissible because they were not sufficiently reliable due to

the malfunctioning of the testing instrument. Id. at ¶ 9. The Tenth District reversed the trial

court and found that BAC results could not be suppressed because the machine

"malfunctioned or was otherwise not in good working order at the time of the defendant's test

* * *." Id. at ¶ 28.

       {¶ 24} In so holding, the court reasoned that Vega's prohibition against attacking the

reliability of testing instruments includes barring challenges to the admissibility of BAC results

because the instrument was not functioning properly. Id. at ¶ 22, 28. In support of this

position, the court cited several Ohio Supreme Court cases which noted that "[t]he

admissibility of test results to establish alcoholic concentration under R.C. 4511.19 turns on

substantial compliance with ODH regulations." Id. at ¶ 23, quoting Defiance v. Kretz, 60 Ohio

St.3d 1, 3 (1991). See State v. French, 72 Ohio St.3d 446, 451; State v. Plummer, 22 Ohio

St.3d 292 (1986). Thus, "in the absence of any evidence that [ODH] regulations had not been

followed, the test result was admissible, and the possible malfunctioning of the machine on

the date of the defendant's test was irrelevant to admissibility." Luke at ¶ 28. This court

agreed with this proposition in Plunkett, 12th Dist. No. CA2001-01-012, 2008-Ohio-1014, ¶

29.

       {¶ 25} Recently, the Eleventh District has issued a series of opinions discussing the

ways a trial court can suppress BAC results. State v. Miller, 11th Dist. No. 2012-P-0032,
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2012-Ohio-5585; State v. Rouse, 11th Dist. No. CA2012-P-0030, 2012-Ohio-5584; State v.

Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583. In Miller, the court acknowledged that

Vega prohibits defendants from attacking the general reliability of testing instruments. Miller

at ¶ 25-26. Additionally, the court reasoned that pursuant to Vega, test results can be

suppressed upon a showing of noncompliance with ODH regulations or evidence that the

operator of the testing instrument was not qualified. Miller at ¶ 31. These findings are in line

with this district's view. Plunkett at ¶ 29. However, the court went on to state that:

                  [i]n addition to attacks on the specific performance of a particular
                  breath test in an individual defendant's case [during trial], a
                  defendant may also make an attack on the reliability of the
                  Intoxilyzer 8000 based on specific reasons. While as
                  discussed above, the machine is presumed to be generally
                  reliable, a defendant may raise specific issues related to
                  reliability in a motion to suppress, as opposed to general
                  assertions that the State failed to prove its reliability, which is
                  prohibited under Vega. (Emphasis added.)

Miller at ¶ 32.

       {¶ 26} The court concluded that Vega does not circumvent the trial court's role as

gatekeeper of the evidence because "a trial court still retains its authority and responsibility to

regulate the admission of test results and to evaluate specific challenges to the Intoxilyzer's

reliability." Id. at ¶ 33. Therefore, the Eleventh District held that there are three ways for a

defendant to challenge the admissibility of BAC test results. In a motion to suppress, the

defendant may argue: (1) ODH regulations were not followed, (2) the operator of the BAC

instrument was not qualified, or (3) the BAC machine is not reliable because of specific

reasons. Miller at ¶ 33.

       {¶ 27} We decline to follow the Eleventh District's approach in allowing defendants to

challenge the admissibility of a BAC test based on the unreliability of the specific machine.

As noted above, Vega held that R.C. 4511.19 has replaced common law foundational

evidence for the admissibility of BAC results by statute and legislatively determined that
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these results are reliable. Allowing defendants to challenge the admission of BAC test

results because of "specific issues" related to unreliability undercuts the legislative

determination that BAC results, properly conducted, are reliable. We are also concerned

regarding the wisdom in dividing reliability arguments into "specific" and "general" challenges.

There is a narrow distinction between these challenges that might lead to a slippery slope of

specific challenges to breath testing instruments that ultimately test what the Ohio General

Assembly has already determined, namely, the general reliability of these instruments.

       {¶ 28} Therefore, we interpret Vega to allow a defendant to challenge the admissibility

of his BAC test results by arguing that, (1) ODH regulations were not followed, or (2) the

operator of the BAC instrument was not qualified. However, a defendant may not challenge

the admission of his BAC test based on specific issues that question the testing instrument's

reliability. We note that although trial courts cannot suppress test results based on the

unreliability of the machine, defendants are free to challenge the reliability of the specific

testing procedure. Defendants "may endeavor to show something went wrong with his test

and that, as a consequence, the result was at variance with what the approved testing

process should have produced." Luke at ¶ 26, quoting Columbus v. Day, 24 Ohio App.3d

173, 174 (10th Dist.1985). However, these challenges go to the weight of the breath test

results rather than its admissibility.

       {¶ 29} During the suppression hearing, Dugan attempted to show that the Intoxilyzer

8000 was not reliable because of the discrepancy between the number of sample attempts

recorded by the ODH website document and the number of breath samples Officer Lopez

observed Dugan perform. In suppressing Dugan's BAC results, the trial court noted the

inconsistency between Officer Lopez's testimony, the Subject Test Report, and the ODH

document.     Additionally, the court found that Martin's testimony did not explain this

inconsistency. Thus, the court suppressed the BAC results because "the instrument that Ms.
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Dugan blew into on the night of her arrest appeared to be flawed * * *." The court did not

address whether any ODH regulation was violated. Consequently, to the extent that the trial

court suppressed Dugan's test results based on evidence that the Intoxilyzer was unreliable,

the court erred. Dugan's concerns over the reliability of her test results because of the

discrepancy between the ODH report, the Subject Test Report, and the observations of

Officer Lopez could be raised at trial and will affect the weight to be given the test results.

       {¶ 30} Thus, because admission of BAC results turns on substantial compliance with

ODH regulations, this court's next inquiry is whether any ODH regulation was violated.

Dugan argues that the state failed to show that it has a system in place to retain breath test

results for not less than three years in accordance with Ohio Adm.Code 3701-53-01(A).

Additionally, Dugan argues that the state failed to establish that a dry gas control was

performed before and after each time she blew into the Intoxilyzer in accordance with Ohio

Adm. Code 3701-53-04(B).

       {¶ 31} Pursuant to Crim.R. 47, a motion in a criminal proceeding "shall state with

particularity the grounds upon which it is made and shall set forth the relief or order sought."

In order to be entitled to a hearing on a motion to suppress evidence, a defendant "must

state the motion's legal and factual bases with sufficient particularity to place the prosecutor

and the court on notice of the issues to be decided." Plunkett, 12th Dist. No. CA2007-01-

012, 2008-Ohio-1014 at ¶ 10, quoting State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus.

       {¶ 32} Once a defendant satisfies this initial burden and thereby places the prosecutor

and the court on sufficient notice of the issues to be determined at the suppression hearing,

the burden of proof shifts to the state. City of Xenia v. Wallace, 37 Ohio St.3d 216, 220

(1988). When a defendant disputes the validity of a BAC test, the state has the burden to

show that the test was administered in substantial compliance with ODH regulations.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372 at ¶ 24. Substantial compliance is limited to
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excusing only deviations from the regulations that are "clearly de minimis," i.e., irregularities

amounting to "minimal procedural deviations." Id. at ¶ 34. Once the state has satisfied this

burden and created a presumption of admissibility, the burden shifts to the defendant to rebut

that presumption by demonstrating that he was prejudiced by anything less than strict

compliance. Id. at ¶ 24.

       {¶ 33} However, the extent of the state's burden to show substantial compliance

depends upon the level of specificity with which the defendant challenges the legality of the

BAC test. When a defendant files a motion to suppress that provides factual bases specific

to the defendant's case in support of his or her claims that a particular ODH regulation was

not followed, the state must show substantial compliance with that ODH regulation. State v.

Deutsch, 12th Dist. No. CA2008-03-035, 2008-Ohio-5658, ¶ 11. However, "[w]hen the

language in the motion to suppress raises only general claims, even though accompanied by

specific administrative code subsections, then there is only a slight burden on the state to

show, in general terms, compliance with the health regulations." State v. Jimenez, 12th Dist.

No. CA2006-01-005, 2007-Ohio-1658, ¶ 25.

       {¶ 34} In order to raise the slight burden imposed upon the state by a general motion

to suppress, a defendant must provide some factual basis in support of a claim that a

particular ODH regulation was not followed. This court has suggested two methods for

gathering facts in order to support such a claim. The first method to obtain facts to support a

claim is during cross-examination at the suppression hearing. State v. Embry, 12th Dist. No.

CA2003-11-110, 2004-Ohio-6324, ¶ 27. "A defendant who files a boilerplate motion with a

bare minimum factual basis will need to engage in cross-examination if he wishes to require

the state to respond more than generally to the issues raised in the motion." Id. Additionally,

"merely asserting during cross-examination that the possibility exists that a very specific

aspect of the regulation was not followed, without a factual basis to support the assertion, will
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not increase the burden on the state." Id. The second method is "to obtain a specific factual

basis that will increase the burden on the state to respond is by conducting formal discovery."

Id. at ¶ 28.

       {¶ 35} We will begin by determining whether the state showed substantial compliance

with Ohio Adm.Code 3701-52-01(A). Ohio Adm.Code 3701-52-01(A) requires the state to

retain breath test records for not less than three years. Initially, we note that the state's

burden to show substantial compliance was slight because Dugan did not assert specific

facts in her motion to suppress to show that the state does not retain breath test results for at

least three years. One portion of Dugan's motion stated that "[t]he individual administering

[Dugan's] test for drugs and/or alcohol did not conduct the test in accordance with the time

limitation and regulations of the State of Ohio in R.C. 4511.19(D) and the [ODH] governing

such testing and/or analysis, as set forth in OAC 3701-52-01, 02, 03, 04, 05, 06, 07, & 08 * *

*." (Emphasis added.) Other than mentioning Ohio Adm.Code 3701-52-01 in this long list of

alleged violations, Dugan's motion did not assert any other specific claims that ODH fails to

retain breath test results for three years.

       {¶ 36} Although Dugan's motion to suppress did not raise the state's burden, the

state's burden can also be raised through cross-examination. At the suppression hearing,

Martin testified that all the records from the Intoxilyzer are uploaded to the ODH website.

She stated that the Intoxilyzer communicates with the ODH website and police can view the

details of each subject test that was performed on the Intoxilyzer. On cross, defense counsel

asked Martin whether there was any way to verify that every test result recorded by the

Intoxilyzer has been uploaded to the ODH website. Martin responded by stating that there

has been no failure of uploads from the instrument.

       {¶ 37} We find that Dugan did not raise the state's burden of establishing substantial

compliance through cross-examination. While Dugan questioned Martin regarding the state's
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retention of records policy, Dugan was unable to obtain specific facts which showed that the

regulation was not followed. As noted above, "merely asserting during cross-examination

that the possibility exists that a very specific aspect of the regulation was not followed,

without a factual basis to support the assertion, will not increase the burden on the state."

Embry at ¶ 27. Further, while Dugan engaged in discovery, she was also unable to produce

any facts to show that the state did not retain the records.

       {¶ 38} The state met its slight burden of establishing substantial compliance with Ohio

Adm.Code 3701-52-01(A). The state provided evidence that all records from the Intoxilyzer

are uploaded to the ODH website. Although the state did not discuss the procedures for

retaining these records, Martin stated that there has been no failures of uploads in the

instrument. Thus, this testimony met the state's slight burden of establishing substantial

compliance with Ohio Adm.Code 3701-52-01(A).

       {¶ 39} Next, we address whether the state substantially complied with Ohio Adm.Code

3701-53-04(B). Dugan's motion contained specific language which alleged, "[t]he state failed

to perform a dry gas control before and after every subject test as required by OAC 3701-53-

04(B)." Because Dugan's motion specifically challenged the validity of the test results due to

the state's alleged failure to perform a dry gas control before and after every subject test, the

state had the burden to show that the test was administered in substantial compliance with

the regulations by the ODH.

       {¶ 40} Ohio Adm.Code 3701-53-04 specifies the calibration requirements for the

Intoxilyzer 8000.     The relevant portion of Ohio Adm.Code 3701-53-04(B) states,

"[i]nstruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code

shall automatically perform a dry gas control test before and after every subject test * * *."

The Intoxilyzer 8000 is listed as an approved testing device under Ohio Adm.Code 3701-53-

02(A)(3). This court has recently interpreted this administrative code section to require a dry
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gas control before a person's first blow into a breath testing machine and then a dry gas

control after the last blow into the machine. State v. Kormos, 12th Dist. No. CA2011-08-059,

2012-Ohio-3128. In so holding, this court interpreted the phrase "subject test" to refer to

each individual subject tested and not each separate time the subject blows into the

instrument. Id. at ¶ 20. Therefore, the state was not required to prove that a dry gas control

was performed before and after every separate blow, but instead before and after every

individual tested. Id.

       {¶ 41} At the suppression hearing, Officer Lopez testified that the Intoxilyzer

performed a dry gas control before Dugan's first sample and after her second sample.

Additionally, the Subject Test Report which recorded the calibration procedure used during

Dugan's breath test, was introduced into evidence. The relevant portions of the Subject Test

Report stated:

                                 Test                 Time

                                 ***
                                 Dry Gas Control      03:41
                                 ***
                                 Subject Sample 1     03:42
                                 ***
                                 Subject Sample 2     03:46
                                 ***
                                 Dry Gas Control      03:47
                                 ***

       {¶ 42} We find that the state established that it substantially complied with Ohio Adm.

Code 3701-53-04(B). Contrary to appellant's argument, the state is not required to prove that

a dry gas test was performed before and after every separate sample. Instead, a dry gas

control must only be conducted before and after each subject is tested. The evidence

established that a dry gas control was performed before and after Dugan's breath test.

       {¶ 43} The state's sole assignment of error is sustained. The trial court's decision

suppressing Dugan's Intoxilyzer 8000 BAC test results is reversed. This cause is remanded
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for further proceedings consistent with this opinion.


       S. POWELL, P.J., concurs.

       RINGLAND, J., concurs separately.

       RINGLAND, J., concurring separately.


       {¶ 44} Based on the specific issues presented to us in this case I concur, particularly

with the interpretation of State v. Vega, 12 Ohio St.3d 185 (1984). However, I realize that

Vega, decided in 1984, may need to be revisited, and I urge the Ohio Supreme Court to do

so.

       {¶ 45} The commonly accepted interpretation of the Vega opinion is that once a

breathalyzer machine is approved or deemed reliable by the Ohio Department of Health

(ODH), courts are prohibited from receiving evidence disputing the reliability of the machine.

R.C. 4511.19(D) permits courts to admit evidence on the concentration of alcohol in the

defendant's breath, but that this bodily substance shall be analyzed in accordance with

methods approved by the ODH. R.C. 4511.19(D) has therefore been interpreted to allow

courts to receive evidence regarding the specific testing procedure and qualifications of the

operator, but requires that courts accept the general reliability of ODH approved machines.

       {¶ 46} The Intoxilyzer is the only scientific machine or process that does not require a

judicial finding of reliability through expert evidence. Normally, once such finding is made

through direct and cross-examination of experts, the court's finding may be taken notice of by

courts under its jurisdiction per Evid.R. 205. The Ohio legislature has seen fit to usurp this

judicial process by delegating this judicial power to the executive branch, i.e., the ODH. This

provision of R.C. 4511.19(D) avoids the evidence-taking process of experts through direct

and cross-examination, judicial fact finding and eventual judicial notice as set forth under the

Rules of Evidence and as provided for under the Modern Courts Amendment to Article IV of
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the Ohio Constitution. This is contrary to the courts' gatekeeping responsibility as set forth in

Daubert and its Ohio progeny. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

113 S.Ct. 2786 (1993). E.g., Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998); State v.

Williams, 12th Dist. No. CA2007-04-087, 2008 Ohio 3729. Therefore, this usurpation may be

constitutionally suspect. However, these issues were not raised below and hopefully will be

resolved in another time and in another case.

       {¶ 47} Constitutional issues aside, I am aware that courts have struggled with the

interpretation of Vega. E.g., State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585;

State v. Reid, et al, Circleville M.C. Nos. TRC1100716, TRC1007193, and TRC1005965

(June 2, 2011). Courts have opined that much has changed since 1984. Per se violations of

R.C. 4511.19 were added, often making the Intoxilyzer test the only evidence supporting a

conviction. Different Intoxilyzer machines with arguably more complicated processes have

subsequently been approved by the ODH. The United States and Ohio Supreme Courts, as

discussed above, have become more sensitive to the courts' gatekeeping responsibilities.

The Ohio Supreme Court has taken notice and ruled on the legislature's encroachment on

courts' authority. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. Finally, few

safeguards are available to the litigant should the current available process for determining

reliability that is utilized by the ODH be flawed or suspect. Huey, The OACDL Challenges the

Intoxilyzer 8000 and the Department of Health Responds: Is this what they mean by Putting

Lipstick on a Pig? The OACDL Vindicator (Summer 2012) 9. These events signal a need for

the Ohio Supreme Court to resolve these issues and confusion.




       Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.


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