[Cite as State v. Wine, 2013-Ohio-5810.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellant,           :
                                                       CASE NO. 2012-P-0120
        - vs -                                  :

RICHARD L. WINE,                                :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2011 TRC 16486.

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).

Joseph C. Patituce, Patituce & Associates, LLC, 26777 Lorain Road, Suite 708, North
Olmsted, OH 44070 (For Defendant-Appellee).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from an order of the Portage County Municipal Court,

 Ravenna Division, granting a motion to suppress the results of a breath test performed

 on an Intoxilyzer 8000. Appellant, the State of Ohio, contends that the trial court erred

 in allowing appellee, Richard L. Wine, to raise a general attack upon the reliability of

 the breath test machine.

        {¶2}     On December 18, 2011, appellee was operating a motor vehicle on State
Route 59 in Portage County when he was stopped by a police officer with the State

Highway Patrol.    After noticing certain indicia of drunkenness and performing field

sobriety tests, the officer placed appellee under arrest and transported him to the local

police station, where appellee was required to take a breath test on the Intoxilyzer

8000. Based upon the test results, the officer cited appellee for four traffic offenses,

including driving while under the influence of alcohol under R.C. 4511.19(A)(1)(d).

      {¶3}   Upon entering a plea of not guilty, appellee moved the trial court to

suppress the results of the breath test. As one basis for the motion, he claimed that

the Intoxilyzer 8000 was generally unreliable and did not produce a result which met

the requirements of the Ohio Administrative Code.

      {¶4}   After the state submitted a response, the trial court held a hearing on the

motion to suppress in September 2012. At the outset of this proceeding, the court

asked the prosecutor whether the state intended to call any witnesses as to the general

reliability of the Intoxilyzer 8000. When the prosecutor answered in the negative, the

proceeding essentially ended, with the trial court indicating that a written decision

would be issued.

      {¶5}   In that decision, the trial court rejected the state’s contention that appellee

was barred from contesting the general reliability of the Intoxilyzer 8000, and expressly

held that it had the basic authority to determine the admissibility of the breath test

results.   Thus, given that the state did not produce any evidence to establish the

general reliability of the Intoxilyzer 8000, the trial court ordered the suppression of the

breath test results. In light of this, the court also ordered that the state would not be

allowed at trial to proceed on the OVI offense under R.C. 4511.19(A)(1)(d).




                                            2
      {¶6}   Before the trial could go forward, the state brought this appeal pursuant to

R.C. 2945.67(A) and Crim.R. 12(J), specifically certifying an immediate appeal was

needed because the granting of the motion to suppress had rendered it impossible to

proceed on the OVI charge under R.C. 4511.19(A)(1)(d). In its brief, the state has

asserted one assignment of error for review:

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

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

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

proceedings.



TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




                                           3
