[Cite as State v. Canino, 2013-Ohio-551.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellant,           :
                                                        CASE NO. 2012-P-0102
        - vs -                                  :

MAXWELL G. CANINO,                              :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 1176.

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).

Dennis Day Lager, Portage County Public Defender, Mark A. Carfolo, Assistant Public
Defender, and Carolyn K. Mulligan, Assistant Public Defender, 209 South Chestnut
Street, #400, 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,

Maxwell G. Canino’s, 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 January 28, 2012, Canino 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)(d); and Operating a Vehicle without Proper Headlights, a

minor misdemeanor, in violation of R.C. 4513.04.

       {¶3}   On March 13, 2012, Canino filed a Motion to Suppress, challenging, inter

alia, the results of a breath test taken by Canino at the time of the citation. He also

asserted that the “testing instrument was not in proper working order,” that the

instrument operator “lacked the necessary qualifications,” and a few additional alleged

problems with the breath test. In a supplement to the Motion to Suppress, filed on July

5, 2012, Canino also argued that the “Blood Alcohol Content test result from the

Intoxilyzer 8000 is inadmissible and scientifically unreliable pursuant to State vs.

Johnson (2012) in Portage County Municipal Court case 2011 TRC 04090.”

       {¶4}   The State filed a response to the Motion to Suppress and a “Brief

Regarding Intoxilyzer 8000 Hearing” on July 13, 2012. In that Brief, the State argued

that it 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).

       {¶5}   A hearing on the Motion to Suppress was held on August 22, 2012. At

that hearing, the court noted that the case was an Intoxilyzer 8000 case. The State

asked that the court review the State’s Brief and take it under advisement. Canino

argued that he was entitled to a hearing as to the reliability of the Intoxilyzer. The court




                                             2
confirmed with the State that no evidence as to the reliability of the instrument would be

presented and the court noted that it would take the matter in advisement and issue an

order “in conformity with” its holding in Johnson.

       {¶6}   In an August 23, 2012 Journal Entry, the trial court granted Canino’s

Motion to Suppress with respect to the results of the Intoxilyzer 8000. The court noted

that it “limits its review of Defendant’s Motion to Suppress solely to the admissibility of a

BAC test from the Intoxilyzer 8000.” It found that the issue in the present matter was

“identical” to the one in State v. Johnson. 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. In

the present matter, the court held that “the rationale and findings in Johnson are

likewise applicable to this case.” It 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 4513.04 shall be set for trial on the

Court’s docket.”

       {¶7}   On August 27, 2012, the State filed a Motion to Stay the Execution of

Judgment, which was granted by the court on August 28, 2012.

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

       {¶9}   “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.”

       {¶10} 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




                                              3
Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.             “In determining a pure

question of law, an appellate court may properly substitute its judgment for that of the

trial court.” (Citation omitted.) Id.

       {¶11} We must first address Canino’s argument that the lower court’s August 23,

2012 Journal Entry is not a final order. Canino’s argument is based on the distinction

between a motion to suppress and a motion in limine, and he argues that since the

motion ruled upon “was in essence a Motion in Limine,” it is not a final appealable order.

Canino argues that the judgment was “limited to an initial evidentiary ruling regarding

the admissibility of the results of the Intoxilyzer 8000 under the Ohio Rules of Evidence”

and does not “determine the ultimate admissibility of the evidence.”

       {¶12} “The purpose and effect of a motion to suppress and a motion in limine

are distinct.” State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). A

“motion to suppress” is a “[d]evice used to eliminate from the trial of a criminal case

evidence which has been secured illegally, generally in violation” of a constitutional

right. Id., citing Black’s Law Dictionary (6 Ed.1990) 1014. “[T]he ruling of the court at

the suppression hearing prevails at trial and is, therefore, automatically appealable by

the state.” Id., citing R.C. 2945.67(A) and [former] Crim.R. 12(J).

       {¶13} In contrast, a “motion in limine” is a motion “which is usually made before

or after the beginning of a jury trial for a protective order against prejudicial questions

and statements * * * to avoid injection into trial of matters which are irrelevant,

inadmissible and prejudicial.” (Citation omitted.) State v. Grubb, 28 Ohio St. 3d 199,

200, 503 N.E.2d 142 (1986). In ruling on a motion in limine, “the trial court is at liberty

to change its ruling on the disputed evidence in its actual context at trial. Finality does




                                            4
not attach when the motion is granted.” (Citation omitted.) Defiance v. Kretz, 60 Ohio

St.3d 1, 4, 573 N.E.2d 32 (1991).

       {¶14} The Ohio Supreme Court has held 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

pursuant to R.C. 2945.67 and Crim. R. 12(J) [now (K)].” State v. Davidson, 17 Ohio

St.3d 132, 477 N.E.2d 1141 (1985), syllabus. Accordingly, “[a] pretrial challenge to a

breathalyzer test, if granted, destroys the state’s case under [former] R.C. 4511.19(A)(3)

[prohibited breath alcohol concentration], and the state is permitted to appeal pursuant

to R.C. 2945.67 and Crim. R. 12[(K)(2)].” Defiance at 4.

       {¶15} As this court has recently held in very similar circumstances, a

determination that “the Defendant’s breath test shall not be admitted during the trial”

was not a “tentative or precautionary ruling.” State v. Miller, 11th Dist. No. 2012-P-

0032, 2012-Ohio-5585, ¶ 19. This court further held that “[a]ny doubt as to the finality of

this ruling is removed by the court’s dismissal of the charge of operating a vehicle with a

prohibited breath alcohol concentration,” which appears to have also occurred in the

present matter, given that the court noted that the “remaining charges” under R.C.

4511.19(A)(1)(a) and R.C. 4513.04 would be set for trial. Id.

       {¶16} For the foregoing reasons, the municipal court’s August 23, 2012 Journal

Entry is a final order, properly appealed by the State pursuant to R.C. 2945.67(A) and

Crim.R. 12(K)(2), which allow a prosecuting attorney to appeal a decision granting a




                                             5
motion to suppress evidence, provided that the prosecuting attorney certifies that the

ruling “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.”

Crim.R. 12(K)(2).

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

provisions of R.C. 3701.143 and Ohio Adm.Code 3701-53-02(A), a trial court is required

to accept the Intoxilyzer 8000 as an appropriate device for chemically analyzing a

person’s breath to determine the amount of alcohol in the breath. It further argues that

pursuant to Vega, a defendant may not attack the general reliability of a breath testing

instrument and that the State is not required to present evidence to support a

determination that the test is generally reliable.

       {¶18} Canino rejects the State’s argument for several reasons, including the

contention that the use of the word “may” in the phrase “the court may admit evidence

on the concentration of alcohol” in the OVI statute recognizes the trial court’s discretion

to admit and exclude evidence and that a threshold showing of reliability by the State is

required.

       {¶19} The Ohio General Assembly has charged the Ohio director of health to

“determine, or cause to be determined, techniques or methods for chemically analyzing

a person’s * * * breath * * * in order to ascertain the amount of alcohol * * * in the

person’s * * * breath[.]” R.C. 3701.143. The Intoxilyzer 8000 has been approved as an

“evidential breath testing instrument” by the director of health. Ohio Adm.Code 3701-

53-02(A)(3).




                                              6
       {¶20} This court has recently addressed the exact issue raised by the State

regarding the general reliability of the Intoxilyzer 8000 and determined that, pursuant to

Vega, a defendant may not make “a general attack upon the reliability and validity of the

breath testing instrument,” although breath test results are subject to challenge on a

variety of grounds, including specific attacks on the reliability of the test and attacks on

the performance of the test in a specific defendant’s case. Miller, 2012-Ohio-5585, at ¶

30-32; State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, ¶ 25 and 35; State

v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584, ¶ 24 and 32.

       {¶21} As was discussed in the foregoing cases, the lead Ohio Supreme Court

case on this issue is Vega, in which the court addressed the issue of whether the

general reliability of intoxilyzers could be challenged “in view of the fact that the General

Assembly has legislatively provided for the admission of such tests in R.C. 4511.19 if

analyzed in accordance with methods approved by the Director of Health.” 12 Ohio

St.3d at 186, 465 N.E.2d 1303. In Vega, the Ohio Supreme Court made clear that “an

accused may not make a general attack upon the reliability and validity of the breath

testing instrument,” since the General Assembly “ha[s] legislatively resolved the

questions of the reliability and relevancy of intoxilyzer tests.” Id. at 188, 190.

       {¶22} While no general attack on reliability may be made, when duly challenged,

the State must demonstrate that the bodily substance was “analyzed in accordance with

methods approved by the director of health by an individual possessing a valid permit.”

R.C. 4511.19(D)(1)(b).     The Ohio Supreme Court has affirmed that “[t]here is no

question that the accused may * * * attack the reliability of the specific testing procedure

and the qualifications of the operator,” as well as present “expert testimony as to testing




                                              7
procedures at trial going to weight rather than admissibility.” Vega at 189. Thus, “[t]he

defendant may still challenge the accuracy of his specific test results, although he may

not challenge the general accuracy of the legislatively determined test procedure as a

valid scientific means of determining blood alcohol levels.” State v. Tanner, 15 Ohio

St.3d 1, 6, 472 N.E.2d 689 (1984); French, 72 Ohio St.3d at 451-452, 650 N.E.2d 887.

       {¶23} In addition to attacks on the specific performance of a particular breath

test in an individual defendant’s case, a defendant may also make an attack on the

reliability of the Intoxilyzer 8000 based on specific reasons, as opposed to general

assertions that the State failed to prove its reliability, which is prohibited under Vega.

See Vega at 189.

       {¶24} Despite these rulings, Canino contends that trial courts nevertheless retain

the discretion to hear argument on the general or scientific reliability of a breath testing

instrument, relying on a statement in French allowing certain evidentiary objections to

chemical test results to be raised. However, this argument has already been rejected

by this court in Miller, since French does not create an exception to the Vega rule

prohibiting challenges to the general scientific reliability of breath testing instruments.

Miller, 2012-Ohio-5585, at ¶ 28; State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702,

961 N.E.2d 689, ¶ 90 (11th Dist.).

       {¶25} Canino also asserts that the trial court could not take judicial notice of the

reliability of the Intoxilyzer 8000, since no court in the trial court’s jurisdiction has

approved of expert testimony to establish the reliability of the instrument, and that Vega

cannot establish the reliability of the instrument through judicial notice.




                                              8
       {¶26} We disagree. As explained in the foregoing analysis, Vega requires the

lower court to accept the general reliability of the Intoxilyzer, pursuant to the

determination of the Ohio director of health. This eliminates the necessity of the State

presenting expert testimony or other evidence as to the general reliability of the

Intoxilyzer 8000. See Dayton v. Futrell, 2nd Dist. No. CA 8615, 1984 Ohio App. LEXIS

11631, *4 (Oct. 26, 1984) (The “judiciary must take notice that [intoxilyzer breath] tests,

properly conducted, are reliable irrespective of disagreements among experts and that

the results of such tests are admissible. Accordingly, judicial notice of this factor

dispenses with the necessity for expert testimony by the state in chief for the efficiency

of the intoxilyzer machine.”); Miller at ¶ 29, citing State v. Massie, 2nd Dist. No. 2007 CA

24, 2008-Ohio-1312, ¶ 36 (noting that a Daubert challenge or presentation of expert

testimony is “forestalled by the ‘legislative mandate recognized in Vega’”) (citation

omitted).

       {¶27} Canino finally argues that the delegation of authority to the director of

health to determine the validity of testing methods and devices violates the separation

of powers doctrine and infringes upon the trial court’s role as gatekeeper and its

regulation of the admission of expert testimony under Evidence Rule 702.

       {¶28} “The Ohio Rules of Evidence, which were promulgated by the Supreme

Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must control over

subsequently enacted inconsistent statutes purporting to govern evidentiary matters.”

(Citation omitted.) State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio

St.3d 451, 491, 715 N.E.2d 1062 (1999).          “In order to demonstrate the legislature

infringed upon the judiciary’s power to enact evidentiary rules appellant must




                                             9
demonstrate the legislation contradicts or is an attempt to supersede an existing

evidentiary rule.” State v. Boczar, 11th Dist. No. 2004-A-0063, 2005-Ohio-6910, ¶ 38.

       {¶29} The delegation of authority to the director of health to establish the

appropriate methods for determining the amount of alcohol in a defendant’s bodily

substances does not conflict with any Rule of Evidence. Canino refers to Evidence

Rule 702; but nothing in this rule establishes the trial court as the sole “gatekeeper” with

respect to the general reliability of instruments measuring the concentration of alcohol in

a person’s bodily substances. On the contrary, Evidence Rule 102 states that “[t]hese

rules shall not supersede substantive statutory provisions.”

       {¶30} The Ohio Supreme Court, in State v. Mayl, 106 Ohio St.3d 207, 2005-

Ohio-4629, 833 N.E.2d 1216, expressly characterized R.C. 4511.19(D)(1) as a “three-

paragraph gate-keeping statute.” Id. at ¶ 20. Where R.C. 4511.19(D)(1) is satisfied, it

does “no[t] matter under which portion of R.C. 4511.19(A) a person is charged, the state

has the opportunity to offer the results of a ‘bodily substance’ test to show either

impairment * * * or to show that the statutory concentrations of alcohol or drugs have

been exceeded.” Id. at ¶ 19.

       {¶31} In a similar situation, the Ohio Supreme Court considered the General

Assembly’s authority to statutorily provide for the admissibility of the results of field

sobriety tests based on substantial compliance, rather than the strict compliance

standard, based on common law, adopted by Ohio courts. The Supreme Court found

no encroachment “on the exclusive rule-making authority of the judiciary.” State v.

Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 22.                     While

acknowledging that “[t]he trial judge is the guardian of the admissibility of evidence,” the




                                            10
General Assembly, “through its deliberative process,” could conclude “that failure to

strictly comply with test procedures affects the evidentiary value of field sobriety tests

but that substantial compliance will not result in the tests’ exclusion,” i.e., “that the tests

are sufficiently reliable to be admissible by meeting a clear-and-convincing standard.”

Id. at ¶ 23.

       {¶32} Likewise in the present case, R.C. 3701.143 and R.C. 4511.19(D)(1) do

not preempt the trial court’s authority to rule on the ultimate admissibility of evidence,

but rather delegate the preliminary determination regarding the general scientific

reliability of testing devices to the director of health. As noted above, the defendant

may always challenge the accuracy of his or her specific test results and the

qualifications of the person administering the test, and otherwise strive to discredit the

weight to be given the specific test results, as well as make an attack on the reliability of

the Intoxilyzer 8000 based on specific reasons instead of general assertions of the

State’s failure to prove its reliability. This is consistent with this court’s recent holding in

Rouse. 2012-Ohio-5584, at ¶ 21 (“a defendant is entitled to produce evidence to assail

the particular results of the subject test, thereby preserving the trial court’s role as

gatekeeper”).

       {¶33} We note that, in the present case, Canino challenged the breath test

results of the Intoxilyzer 8000 on several grounds, including that the breath test was not

administered within the time limit, that the testing instrument was not working properly,

that the instrument operator lacked the necessary qualifications, and that other

regulations were not followed. However, the municipal court appears to have granted

Canino’s Motion solely on the grounds stated in Johnson, that the State failed to




                                              11
produce evidence of the Intoxilyzer 8000's general scientific reliability. Accordingly, on

remand, it will be necessary for the court to hold another hearing to address the other

issues raised in Canino’s Motion to Suppress. Miller, 2012-Ohio-5585, at ¶ 34.

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

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

Court, Ravenna Division, granting Canino’s Motion to Suppress and dismissing the

charge of violating R.C. 4511.19(A)(1)(d) is reversed, and this cause is remanded for

further proceedings consistent with this opinion. Costs to be taxed against appellee.



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

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



                               ______________________



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

       {¶36} 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.

       {¶37} 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




                                             12
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.

       {¶38} 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.)

       {¶39} 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).

       {¶40} 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




                                             13
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).

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

the defendant’s substantive due process rights.

       {¶42} “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).

       {¶43} 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).




                                            14
       {¶44} 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

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.

       {¶45} 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.

       {¶46} 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.

       {¶47} 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




                                             15
“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.

       {¶48} 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.

       {¶49} 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).




                                             16
       {¶50} 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).

       {¶51} 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.

       {¶52} 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




                                             17
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.

       {¶53} 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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