[Cite as State v. Raynish, 2013-Ohio-2620.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellant,           :
                                                          CASE NO. 2012-P-0118
        - vs -                                  :

STEPHEN M. RAYNISH,                             :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 3299.

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).

Dan J. Weisenburger, 121 East Main Street, Ravenna, OH 44266 (For Defendant-
Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals the judgment of the Portage

County Municipal Court, Ravenna Division, holding the breath test results of the

Intoxilyzer 8000 would not be admissible at trial in a prosecution for driving with a

prohibited breath alcohol concentration (OVI). The issue before this court is whether a

trial court, exercising its evidentiary role as gatekeeper, may pass judgment on the

general 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 the decision of the court below.

       {¶2}   On March 15, 2012, the Ohio State Highway Patrol issued defendant-

appellee, Stephen M. Raynish, a traffic ticket, charging him with OVI, a misdemeanor of

the first degree in violation of R.C. 4511.19(A)(1)(a) (driving under the influence of

alcohol) and (d) (driving with a prohibited breath alcohol concentration), and violating

the Display of License Plates and Validation Stickers statute, a minor misdemeanor in

violation of R.C. 4503.21.

       {¶3}   On March 19, 2012, Raynish entered a plea of not guilty.

       {¶4}   On August 27, 2012, Raynish filed a Motion in Limine, seeking “an Order

restricting the Prosecution from introducing or offering * * * [the] results of testing

conducted upon the Defendant using an Intoxilyzer 8000, which has not been accepted

by this Court as [an] accurate and reliable testing instrument.”

       {¶5}   On the same date, Raynish filed a Motion to Suppress, seeking “to

suppress [other] evidence obtained from the warrantless seizure of the Defendant.”

       {¶6}   On September 5, 2012, the State filed a Brief Regarding Intoxilyzer 8000

Hearing, asserting “there exists no requirement that the reliability of the Intoxilyzer 8000

be established as a prerequisite to a Court’s acceptance of breath test results from this

machine.”

       {¶7}   On September 17, 2012, the municipal court issued a Journal Entry,

“limit[ing] its review of Defendant’s Motion to Suppress Motion in Limine [sic] solely to

the admissibility of a BAC test from the Intoxilyzer 8000,” and ruling that “the breath test

results from the Intoxilyzer 8000 are not admissible at the trial of Defendant.” In so




                                             2
ruling, the court relied upon State v. Johnson, Portage M.C. R 11 TRC 4090 (Jan. 6,

2012).

         {¶8}   On September 18, 2012, the State filed its Notice of Appeal.

         {¶9}   On September 19, 2012, the municipal court, upon the State’s Motion,

stayed execution of its judgment pending a decision on appeal.

         {¶10} On appeal, the State raises the following assignment of error:

         {¶11} “[1.] [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.”

         {¶12} Where the lower court’s judgment is challenged on a purported

misconstruction of the law, the appropriate standard of review is de novo. State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.

         {¶13} The Johnson case, relied upon by the municipal court, has been reversed.

State v. Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440, ¶ 32 (“the legislature has

allowed the director of the department of health to determine that the Intoxilyzer 8000 is

generally reliable”). This court has held, in many other decisions, that the State is not

required to introduce evidence of the Intoxilyzer 8000’s scientific reliability for the breath

test results to be admissible. State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-

5585, ¶ 26, quoting State v. Vega, 12 Ohio St.3d 185, 190, 465 N.E.2d 1303 (1984) (“an

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

testing instrument”).     Raynish raises no arguments that have not already been

considered by this court in its previous decisions, such that a different holding would be

warranted.




                                              3
       {¶14} 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

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 at 188.

       {¶15} The concurring judge reads Vega in such a way that the defendant bears

the burden of production at the suppression hearing to present evidence of the

Intoxilyzer 8000’s unreliability. This position is contrary to the established procedures

for addressing such challenges. In a typical motion to suppress hearing, the movant

bears the burden of “stat[ing] with particularity the grounds upon which it is made.”

Crim.R. 47. This burden is distinct from the burden to produce evidence, which the

State bears when the reliability of a testing device is challenged. State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 24 (“[a]fter a defendant challenges

the validity of test results in a pretrial motion, the state has the burden to show that the

test was administered in substantial compliance with the regulations prescribed by the

Director of Health”).

       {¶16} In support of her position, the concurring judge analogizes specific

challenges to the instrument’s general reliability to unconstitutional searches and

seizures, such as where a defendant challenges a search that was conducted pursuant

to a valid warrant with supporting affidavits.    In that situation, the search enjoys a

presumption of validity. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978).       To overcome the presumption, the defendant must raise




                                             4
“allegations of deliberate falsehood or of reckless disregard for the truth * * *

accompanied by an offer of proof.” Id.

       {¶17} Challenges to the specific reliability of the Intoxilyzer 8000 are more

properly understood in the context of challenges to scientific reliability as discussed in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993), and Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735

(1998), rather than in the context of the Fourth Amendment exclusionary rule.           A

Daubert/Miller analysis focuses on the reliability of the underlying scientific principles

and/or methodology involved, rather than the reliability of specific test results. Daubert

at 595; Miller at 611-612.

       {¶18} The problem with analogizing to Daubert/Miller to justify shifting the

burden of demonstrating unreliability to the defendant is that this court has repeatedly

held that the reliability of the Intoxilyzer 8000 cannot be challenged under

Daubert/Miller. See State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584, ¶ 28

(“appellee’s argument that the Intoxilyzer 8000 is unreliable was an attack on the

general reliability of a director-approved breath-testing instrument, which is prohibited

by Vega,” accordingly “we maintain a Daubert hearing is unnecessary as it pertains to

the general reliability of the Intoxilyzer”); State v. Carter, 11th Dist. No. 2012-P-0027,

2012-Ohio-5583, ¶ 40 (the same).

       {¶19} The concurring judge’s present position appears to contradict this court’s

earlier pronouncements that challenges to the admissibility of the Intoxilyzer 8000

based on its general reliability are impermissible. In contrast, this court has recognized

that such challenges may be properly raised at trial, with the evidence going to the




                                            5
weight rather than the admissibility of the evidence. Miller, 2012-Ohio-5585, at ¶ 31

(cases cited); State v. Hatcher, 11th Dist. Nos. 2012-P-0077 and 2012-P-0078, 2013-

Ohio-445, ¶ 24 (“the statutory recognition of the Intoxilyzer 8000’s admissibility * * *

does not prevent a defendant from introducing evidence as to the general unreliability of

this specific machine through the use of expert opinion testimony,” where “[s]uch

testimony does not challenge the admissibility of the breath test results; rather it

challenges the weight and credibility to be given to the results”) (emphasis sic).

       {¶20} Essentially, the concurring judge recognizes that Vega prohibits Daubert-

style challenges to admissibility based on the general reliability of the Intoxilyzer 8000,

but seeks to avoid the prohibition by allowing such challenges in the context of a motion

to suppress. However, it necessitates a shifting of the burden of production to the

defendant, thus disrupting the ordinary course of the suppression hearing.                 This

situation is avoided by a more faithful application of Vega, whereby the State must

demonstrate that a bodily substance was “analyzed in accordance with methods

approved by the director of health,” while the defendant, at trial, may challenge the

accuracy of his or her specific test results, the qualifications of the person administering

the test, the testing instrument’s scientific reliability, and otherwise strive to discredit the

weight to be given the specific test results.

       {¶21} The State’s sole assignment of error is with merit.

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

Court, Ravenna Division, granting Raynish’s Motion in Limine, is reversed, and this

cause is remanded for further proceedings consistent with this opinion. Costs to be

taxed against appellee.




                                                6
CYNTHIA WESTCOTT RICE, J., concurs in judgment only with a Concurring Opinion,

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



                                    ______________________



CYNTHIA WESTCOTT RICE, J., concurs in judgment only with a Concurring Opinion.

       {¶23} While I concur with the resolution of this case, I do not concur with the

opinion as written. Therefore, I concur in judgment only.

       {¶24} This court has held that a defendant is entitled to make specific challenges

to the general reliability of the Intoxilyzer 8000 in a motion to suppress. Carter, supra,

at ¶43. In Miller, supra, this court held:

       {¶25} 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. While, as discussed above, the machine is

              presumed to be generally reliable, a defendant may raise specific

              issues related to its reliability in a motion to suppress, as opposed

              to general assertions that the State failed to prove its reliability,

              which is prohibited under Vega. See Vega at 189. Miller at ¶32.

       {¶26} Further, in Miller, supra, this court held that a defendant can make

“specific challenges to the Intoxilyzer’s reliability,” and “[a] defendant may * * * challenge

the reliability of the Intoxilyzer 8000 with specific arguments * * *.” Id. at ¶33.




                                               7
       {¶27} Moreover, this court has held that, because the Intoxilyzer 8000 is

presumed reliable, the defendant has the burden of production to present evidence that

the machine is not reliable. Carter at ¶39. If the defendant satisfies his initial burden,

the burden of proof then shifts to the state to produce evidence establishing the

machine’s reliability.

       {¶28} The foregoing burden-shifting procedure has long been followed by

federal and state courts in the analogous contexts of apparently lawful searches and

confessions. With respect to searches following the issuance of a search warrant, a

defendant has the initial burden to establish a prima facie case that the search was not

lawful. Once that burden is met, the burden shifts to the state to prove the search was

lawful. United States v. Whitten, 848 F.2d 195, 1988 U.S. App. LEXIS 6485, *3 (6th

Cir.); United States v. Murrie, 534 F.2d 695, 697-698 (6th Cir.1976); United States v.

Triumph Capital Group, Inc., 2003 U.S. Dist. LEXIS 24776, *7-*8 (D.Conn.). Further,

“[t]here are shifting burdens in suppression hearings regarding confessions.” United

States v. Burnette, 535 F.Supp.2d 772, 782 (E.D.Tex.2007). After the defendant

satisfies his initial burden to show his confession was the result of a custodial

interrogation, the burden shifts to the government to prove the evidence was not illegally

obtained, i.e., that the Miranda warnings were given; the defendant waived them; and

the confession was voluntary. Id. It is worth noting that trial courts typically decide

whether the parties met their respective burdens after all evidence has been presented.

See e.g. Triumph, supra, at *8; Murrie, supra, at 696-698; Burnette, supra, at 779-780;

State v. Saffell, 9th Dist. No. 2928, 1995 Ohio App. LEXIS 3060, *2-*4 (Jul. 19, 1995);

United States v. Bonds, 2006 U.S. Dist. LEXIS 3436, *3-*5 (S.D.Miss.).




                                            8
       {¶29} On remand, Raynish is entitled, but has the burden of production, to

specifically challenge the general reliability of the Intoxilyzer 8000 according to the

burden-shifting procedure outlined above.



                               ______________________



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

       {¶30} I respectfully dissent.

       {¶31} 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.

       {¶32} 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.

       {¶33} 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.




                                             9
       {¶34} 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.

       {¶35} 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.

       {¶36} 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.

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

       {¶38} “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




                                             10
individual possessing a valid permit issued by the director pursuant to section 3701.143

of the Revised Code.” (Emphasis added.)

       {¶39} 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:

       {¶40} “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,


                                                  11
       {¶41} 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.

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

       {¶43} “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.


                                                 12
       {¶44} “Moreover, the determination of evidential reliability necessarily implicates

the defendant’s substantive due process rights.

       {¶45} “‘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).

       {¶46} “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.

       {¶47} 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




                                             13
8000 resulted in a 0.000% BAC. Id. at *6. The state of Oregon brought its own expert

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

court:

         {¶48} “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.

         {¶49} 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).

         {¶50} “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).

         {¶51} 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.

         {¶52} 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




                                           14
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

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.

       {¶53} 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:

       {¶54} “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.)




                                            15
      {¶55} 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

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.

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




                                           16
