[Cite as State v. Mason, 2013-Ohio-2612.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellant,          :
                                                        CASE NO. 2012-P-0129
        - vs -                                 :

IRVIN E. MASON,                                :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2012 TRC 07065.

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, and Leonard W. Hazelett,
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, Irvin

E. Mason’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 May 25, 2012, Mason 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); and OVI, a misdemeanor of the first

degree, in violation of R.C. 4511.19(A)(1)(h).

      {¶3}   On September 26, 2012, Mason filed a Motion to Suppress, raising

various grounds for the suppression of evidence and the breath test results, including,

inter alia, that there was no cause for stopping or detaining Mason, that the breath

samples were not analyzed properly or taken in accordance with the law, and that the

breath testing instrument operator was not properly qualified. The Motion also asserted

that the test result from the Intoxilyzer 8000 was inadmissible and scientifically

unreliable, pursuant to State v. Johnson, Portage County Municipal Court case 2011

TRC 04090.

      {¶4}   A hearing on the Motion to Suppress was held on October 3, 2012. At

that hearing, defense counsel noted that while it was arguing that the Intoxilyzer 8000

results were inadmissible under Johnson, it also had additional arguments regarding the

existence of probable cause to make the traffic stop and wanted to reserve argument on

these issues pending the results of a potential appeal in this matter. The State noted

that it would not present any evidence or experts to testify as to the reliability of the

Intoxilyzer 8000, consistent with the position it had taken in prior cases. The court

stated that it would exclude the breath test results, pursuant to Johnson, but that it

would wait to hold a hearing as to the other suppression issues, including those related

to probable cause, until after the appeal was decided, to which the State did not object.


                                            2
       {¶5}   In an October 4, 2012 Journal Entry, the trial court granted Mason’s

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

that it had considered the arguments of counsel and the Johnson case in reaching its

determination that the breath test results were inadmissible. 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 also held that, based on the

suppression of the breath test results, the violation of R.C. 4511.19(A)(1)(h) is

dismissed. The court found “that the Defense Attorney reserved his right to proceed on

any other issues raised in the Motion to Suppress at a later date, there being no

objection by the State.”

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

       {¶7}   “The Portage County Municipal Court erred in permitting a general attack

on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and well-

established case law.”

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

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

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

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

trial court.” (Citation omitted.) Id.

       {¶9}   We must first address Mason’s argument that the lower court’s October 4,

2012 Journal Entry is not a final order. Mason’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.


                                             3
Mason 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.”

       {¶10} “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); Crim.R. 12(K).

       {¶11} 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

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

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

       {¶12} 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


                                             4
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.

       {¶13} 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, 983 N.E.2d 837, ¶ 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 also occurred

in the present matter. Id.

       {¶14} For the foregoing reasons, the municipal court’s October 4, 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

motion to suppress evidence under certain circumstances, when there is no reasonable

possibility of effective prosecution in the absence of the suppressed evidence.

       {¶15} 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 State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), 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.


                                            5
       {¶16} Mason 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.

       {¶17} 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).

       {¶18} 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, 983 N.E.2d 855, ¶

25 and 35; State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584, 983 N.E.2d

845, ¶ 24 and 32.

       {¶19} 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


                                             6
analyzed in accordance with methods approved by the Director of Health.” Vega, 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.

       {¶20} When duly challenged, the State must demonstrate that the bodily

substance was “analyzed in accordance with methods approved by the director of

health” and “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 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.

       {¶21} 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.

       {¶22} The dissent relies on a general statement by the court in Vega to

contravene the specific holding of the Ohio Supreme Court in Vega. That analysis is

inapposite of the holding in Vega that “most of the original questions as to the general


                                              7
reliability of the tests and the relation between blood-alcohol levels and driver

impairment have been answered, expressly or impliedly, by the legislatures.” (Citation

omitted.) (Emphasis sic.) Vega, 12 Ohio St.3d at 188, 465 N.E.2d 1303.

       {¶23} Despite these rulings, Mason 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.).

       {¶24} Mason 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

does not establish the reliability of the instrument.

       {¶25} 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, *3-4 (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


                                              8
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).

       {¶26} Mason 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.

       {¶27} “[T]he 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.”

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 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.

       {¶28} 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. Mason 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.”




                                             9
       {¶29} 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.

       {¶30} 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

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.

       {¶31} 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


                                              10
qualifications of the person administering the test, 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”).

       {¶32} We note that, in the present case, Mason challenged the breath test

results of the Intoxilyzer 8000 on several specific grounds, including that the breath test

was not administered within the time limit and that the instrument operator lacked the

necessary qualifications, and also challenged the stop of the vehicle. The municipal

court appears to have granted Mason’s Motion solely on the grounds stated in Johnson,

that the State failed to produce evidence of the Intoxilyzer 8000’s general scientific

reliability. Further, pursuant to the transcript and the Journal Entry, Mason specifically

requested the right to reserve arguments on these additional issues until after the

appeal in this matter. Accordingly, on remand, it will be necessary for the court to hold

another hearing to address the other issues raised in Mason’s Motion to Suppress.

Miller, 2012-Ohio-5585, at ¶ 34.

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

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

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

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

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




                                            11
CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                               ______________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



       {¶35} I respectfully dissent.

       {¶36} As the writing judge notes, the state relies on Vega, 12 Ohio St.3d 185. I

do not believe that Vega stands for the sweeping proposition advanced by the state –

i.e., that the results of all tests from breath analysis machines approved by the Director

of Health for use in OVI cases must, automatically, be accepted into evidence, so long

as the operator is competent and the machine functional.

       {¶37} 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.” Id. at 186. The Vega court premised its decision on

several considerations.

       {¶38} First, the court cited to its prior holding in Westerville v. Cunningham, 15

Ohio St.2d 121, 123 (1968), regarding use of breath analysis machines in OVI cases,

for the proposition that: “‘such tests are today generally recognized as being reasonably

reliable on the issue of intoxication when conducted with proper equipment and by

competent operators.’” Vega at 186.




                                            12
       {¶39} Second, the court noted that the General Assembly confided discretion to

determine proper methods of analyzing breath alcohol to the Director of Health, and that

the director had designated the machine in question as appropriate. Vega, 12 Ohio

St.3d at 186-187.

       {¶40} Third, the court noted that under the version of R.C. 4511.19 then current,

the results of a breath analysis exceeding the statutory level merely created a rebuttable

presumption that the defendant was intoxicated, which did not prevent the defendant

showing, through other evidence, that he or she was not, in fact, under the influence of

alcohol. Vega, 12 Ohio St.3d at 188-189.

       {¶41} I respectfully disagree that the trial court in this case misconstrued the law

regarding breath analysis machines, or the law regarding admissibility of their results. I

believe it construed the statutes correctly, according to their plain language, and the

requirements of the federal and state constitutions.

       {¶42} R.C. 4511.19(D)(1)(b) states in part:

       {¶43} “In 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




                                             13
individual possessing a valid permit issued by the director pursuant to section 3701.143

of the Revised Code.” (Emphasis added.)

       {¶44} The foregoing statute uses the word “may.” “‘The statutory use of the

word “may” is generally construed to make the provision in which it is contained

optional, permissive, or discretionary.’” State v. Davie, 11th Dist. No. 2000-T-0104,

2001 Ohio App. LEXIS 5842, *16 (Dec. 21, 2001), quoting Dorrian v. Scioto Conserv.

Dist., 27 Ohio St.2d 102, 107 (1971). Thus, R.C. 4511.19(D)(1)(b) does not mandate

admissibility of the results of the breath test. Rather, the statute vests the trial court with

discretion in making a determination with respect to admissibility, notwithstanding

approval from the director of health.          As my colleague, Judge Wright, has recently

stated in a series of penetrating dissents:

       {¶45} “R.C. 3701.143 empowers the director to approve breath testing devices,

and R.C. 4511.19(D)(1)(b) grants trial courts the discretion to admit the results from

approved devices without further proof of reliability when circumstances warrant.

Although some claim the contrary, nobody is correct all the time. In recognizing human

fallibility, the legislature had the wisdom to vest within the trial court the discretion per

R.C. 4511.19(D)(1)(b) to conduct further inquiry when there is an issue as to the

reliability of an approved breath testing device before admitting the results.”              State v.

Collazo, 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶38.1



1. See also Johnson, 11th Dist. No. 2012-P-0008, 2103-Ohio-440; State v. Schrock, 11th Dist. No. 2012-
P-0022, 2013-Ohio-441; State v. Harmon, 11th Dist. No. 2012-P-0067, 2013-Ohio-442; State v. Funk,
11th Dist. No. 2012-P-0071, 2013-Ohio-444; State v. Hatcher, 11th Dist. Nos. 2012-P-0077 and 2012-P-
0078, 2013-Ohio-445; State v. Webb, 11th Dist. No. 2012-P-0052, 2013-Ohio-541; State v. Neice, 11th
Dist. No. 2012-P-0064, 2013-Ohio-542; State v. Butler, 11th Dist. No. 2012-P-0066, 2013-Ohio-543; State
v. Lucas, 11th Dist. No. 2012-P-0070, 2013-Ohio-544; State v. Pizzino, 11th Dist. Nos. 2012-P-0079 and
2012-P-0080, 2013-Ohio-545; State v. Kuntz, 11th Dist. No. 2012-P-0082, 2013-Ohio-546; State v.
McCune, 11th Dist. No. 2012-P-0089, 2013-Ohio-547; State v. Zoeckler, 11th Dist. No. 2012-P-0092,


                                                  14
       {¶46} Again, the statutory scheme does not establish the proposition advanced

by the state: i.e., results of any breath analysis machine must be accepted at trial.

Rather, the statutes provide that the Director of Health has sole authority to approve

machines – but that the trial courts of Ohio have discretion to accept the results

generated by the machines so approved. Further, Vega prohibits blanket attacks on the

reliability of breath analysis machines generally, and premises this upon the use of

“‘proper equipment.’” Vega, 12 Ohio St.3d at 186. The question raised in this case is

the reliability of the Intoxilyzer 8000 specifically. A breath analysis machine could only

be “proper equipment” if it is reliable.

       {¶47} As Judge Wright further noted in Collazo:

       {¶48} “In this case, the trial court exercised its discretion not to admit the breath

test absent proof from the state that the Intoxilyzer 8000 is generally reliable, a decision

consistent with the discretion it possesses under R.C. 4511.19(D)(1)(b). As reliability

presents a threshold admissibility issue, reliability, as opposed to the weight to be

afforded any admitted evidence, is one for the trial court. Knott v. Revolution Software

Inc., 181 Ohio App.3d 519, 2009-Ohio-1191, ¶45, * * * (5th Dist.); State v. Riley, 6th

Dist. No. WD-03-076, 2007-Ohio-879, ¶27 (expert testimony must be deemed reliable

before it is deemed admissible.); Saad v. Shimano American Corp., 2000 U.S. Dist.

LEXIS 10974, *7 (N.D. Ill. 2000)(The Supreme Court has made it clear that the courts

must allow into evidence only expert testimony that meets certain threshold standards

of reliability and usefulness).




2013-Ohio-548; State v. Tagliaferri, 11th Dist. No. 2012-P-0094, 2013-Ohio-549; State v. Hinton, 11th
Dist. No. 2012-P-0095, 2013-Ohio-550; State v. Canino, 11th Dist. No. 2012-P-0102, 2013-Ohio-551.


                                                 15
       {¶49} “Moreover, the determination of evidential reliability necessarily implicates

the defendant’s substantive due process rights.

       {¶50} “‘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).

       {¶51} “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).” (Parallel citations

omitted.) Collazo, 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶41-44.

       {¶52} Case law indicates serious problems regarding the reliability of the

Intoxilyzer 8000, which make it incumbent on trial courts to assure the reliability of its

results, before allowing those results into evidence. In one case, plaintiff brought a

federal action for violation of his Fourth Amendment rights, following his arrest for

driving under the influence. Briggs v. Holsapple, D.Oregon Civil Case No. 08-6037-KI,

2009 U.S. Dist. LEXIS 11295, *1 (Feb. 11, 2009). Despite considerable indications on

the field sobriety tests that the plaintiff was inebriated, his breath test on an Intoxilyzer

8000 resulted in a 0.000% BAC. Id. at *6. The state of Oregon brought its own expert


                                             16
in to testify against the reliability of the machine. Id. at *7. As stated by the district

court:

         {¶53} “Justin Lazenby, Forensic Scientist, Oregon State Police Toxicology Unit,

has reviewed the facts of plaintiff’s arrest and has concluded: (a) the Intoxilyzer 8000

underestimates actual BAC 84% of the time; (b) the Intoxilyzer 8000 will round all breath

sample results below 0.010% down to 0.000%; (c) based on the alcohol consumption

described by plaintiff in his deposition, plaintiff’s BAC at the time of driving would be

between 0.019% and 0.023%, * * *.” Id. at *7-8.

         {¶54} The state of Ohio does not seem to have access to the “source code” for

the Intoxilyzer 8000. State v. Gerome, et al., Athens County M.C. Nos. 11TRC01909,

11TRC00826, 11TRC01734, and 11TRC02434, at 15 (June 29, 2011).

         {¶55} “The source code is the human readable format of the software that

controls the operation of the Intoxilyzer 8000. In other words, the source code tells the

Intoxilyzer 8000 how to calculate the numerical result, such as 0.08. If the source code

contains a mistake, then the result generated will be defective.” Montana v. Peters,

2011 MT 274, 362 Mont. 389, 264 P.3d 1124, ¶4 (Mont. 2011).

         {¶56} Testimony has been elicited that such widely used devices as smart

phones can interfere with the Intoxilyzer 8000 at frequencies it cannot detect. Gerome

at 20-21.

         {¶57} A criminal defendant’s substantive due process rights cannot be

overridden by a legislative enactment, and there is no need to interpret Ohio’s laws

regarding approval of breath analysis machines in a way that does. Indeed, courts must

presume that legislative enactments are constitutional, and construe them to achieve

that end. State v. Acord, 4th Dist. No. 05CA2858, 2006-Ohio-1616, ¶17. Similarly, the


                                           17
decision in Vega, premised on the use of “proper equipment,” necessarily recognizes

the duty of our trial courts to protect defendants’ substantive due process rights by

requiring them to insure that the equipment is proper. Vega, 12 Ohio St.3d at 186.

       {¶58} It must also be noted that the Sixth Amendment to the U.S. Constitution,

and the Ohio Constitution, Article I, Section 10, guarantee a defendant’s right to

confront the witnesses against him. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-

6235, ¶110.    In order to invoke the protections of the Confrontation Clause, the

evidence must be “testimonial.” As this court held in State v. Ansell, 11th Dist. No.

2008-P-0111, 2009-Ohio-4802, ¶38:

       {¶59} “The Supreme Court of the United States has therefore held that the

Confrontation Clause prohibits the admission or use of testimonial statements of a

witness who does not appear at trial unless that witness is unavailable to testify, and the

defendant has had a prior opportunity for cross-examination. * * * Crawford [v.

Washington, 541 U.S. 36,] * * * 68. Given this formulation, only testimonial statements

‘cause the declarant to be a “witness” within the meaning of the Confrontation Clause’

Davis v. Washington (2006), 547 U.S. 813, 821, * * *. For purposes of the Confrontation

Clause, ‘a testimonial statement includes one made “under circumstances which would

lead an objective witness reasonably to believe that the statement would be available

for use at a later trial.”’ State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, * * *, at

paragraph one of the syllabus, quoting Crawford.” (Emphasis sic.) (Parallel citations

and footnote omitted.)

       {¶60} The breath test result from the Intoxilyzer 8000 has been found to be

testimonial within the meaning of the Confrontation Clause. United States v. Gorder,

726 F.Supp.2d 1307, 1314 (D.Utah 2010). It seems there may be a violation of the


                                            18
Confrontation Clause inherent in the use of the Intoxilyzer 8000, unless the machine’s

reliability has been established, for, while a defendant may question the operator about

his or her qualifications, and whether protocol was followed in administering the breath

test, the defendant has no way of knowing what that test actually constitutes.

      {¶61} For all the reasons foregoing, I would affirm the judgment of the trial court.




                                           19
