[Cite as State v. Bergman, 2013-Ohio-5811.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION EN BANC

                 Plaintiff-Appellant,          :
                                                        CASE NO. 2012-P-0124
        - vs -                                 :

DENISE L. BERGMAN,                             :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2012 TRC 08654.

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 Mark A. Carfolo, Assistant
Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266 (For
Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     On July 18, 2013, pursuant to App.R. 26(A)(2), a majority of the members

of this court decided, sua sponte, to convene en banc to resolve an intradistrict conflict

between the opinion and judgment in the underlying matter and various, prior opinions

of this court on the following issue:

        {¶2}     “Whether the state of Ohio has the burden of going forward in a hearing

on a motion to suppress when there is a challenge to the general reliability of the
Intoxilyzer 8000, a breath testing instrument approved by the Director of the Ohio

Department of Health.”

       {¶3}    On the authority of State v. Rouse, 11th Dist. Portage No. 2012-P-0032,

2012-Ohio-5584, State v. Carter, 11th Dist. Portage No. 2012-P-0027, 2012-Ohio-5583,

State v. Miller, 11th Dist. Portage No. 2012-P-0032, 2012-Ohio-5585, and State v.

Johnson, 11th Dist. Portage No. 2012-P-0008, 2013-Ohio-440, we answer the question

in the negative. Where the breath testing device at issue has been approved by the

Director of the Ohio Department of Health, there is no need for the state to prove the

general reliability of the device itself. Rouse, supra, at ¶39; Carter, supra, at ¶43; Miller,

supra, at ¶32; Johnson, supra, at ¶32.

       {¶4}    Given this holding, Rouse, Carter, Miller, Johnson, and their progeny are

affirmed and the opinion and judgment in the underlying matter, State v. Bergman, 11th

Dist. Portage No. 2012-P-0124, 2013-Ohio-3073, as well as all other opinions and

judgments contrary to this holding are expressly overruled. We hereby reverse and

vacate this court’s decision in Bergman, supra, issued July 15, 2013, and issue this en

banc opinion as the final decision in this appeal.

       {¶5}    In accordance with the foregoing, the judgment of the Portage County

Municipal Court, Ravenna Division, is reversed and the matter remanded for further

proceedings.



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

DIANE V. GRENDELL, J., concurs,

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




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

                              _______________________


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


       {¶6}   I dissent for the reasons stated in State v. Lucarelli, 11th Dist. Portage No.

2012-P-0065, 2013-Ohio-1606.

                              _______________________


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


       {¶7}   The cases relied on by the majority are premised on State v. Vega, 12

Ohio St.3d 185 (1984). In that case, 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 founded its

decision on several considerations.

       {¶8}   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}   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 at 186-187.




                                             3
       {¶10} 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 impaired. Vega at 188-189.

       {¶11} Based on this last point, it would appear that Vega is no longer good law.

The Parma Municipal Court so found in Parma v. Malinowski, Parma M.C. No. 12TRC

03580 (April 22, 2013) (Spanagel, J.). As that court stated:

       {¶12} “The majority in Vega themselves set forth the (sic) in their own logic why

Vega is no longer good law, when they stated:

       {¶13} “‘Not only does appellee’s position fail to give recognition to the legislative

determination, it also misperceives the presumption and the effect of that presumption

created by R.C. 4511.19. The presumption created by R.C. 4511.19 is that the accused

was under the influence of alcohol. ‘The effect of the presumption is to eliminate the

necessity of proof by the prosecution of the effect of alcohol on the individual when the

level is within the range established by the presumption. The statute does not create an

absolute presumption, but only a rebuttable one (* * *).’

       {¶14} “This presumption does not, contrary to appellee’s arguments, change the

presumption of innocence to one of guilt. It merely raises the rebuttable presumption

that one was under the influence of alcohol. Under the statute, the accused may

introduce any other competent evidence bearing upon the question of whether he was

under the influence of intoxicating liquor. (* * *) There is no question that the accused

may also attack the reliability of the specific testing procedure and the qualifications of

the operator. See, e.g., Cincinnati v. Sand (1975), 43 Ohio St.2d 79, * * *. Defense




                                             4
expert testimony as to testing procedures at trial going to weight rather than

admissibility is allowed. Since the presumption is rebuttable and the defendant may go

forward with evidence, the ‘(* * *) (d)efendant cannot be heard to complain that the

provisions of R.C. 4511.19 eliminate his presumption of innocence or hamper the

presentation of his defense.’ State v. Myers [(1971), 26 Ohio St.2d [190,] 201, * * *.

The presumption created by the scientific test is thus to be considered by the jury and

the court along with the other evidence as to whether or not the accused was

intoxicated. Whether the presumption was overcome by the evidence presented is a

question of fact for the jury.’ * * *

       {¶15} “Examination of the majority decision itself clearly shows that they

believed that the rebuttable presumption was able to be addressed by presenting other

evidence, including limited attack on the machine result as another item of evidence.

Today the test result is not a rebuttable presumption but a conclusive presumption.

Conclusive presumptions have been previously found to be unconstitutional.” (Citing

Sandstrom v. Montana, 442 U.S. 510 (1979)).            (Emphasis sic.)   (Parallel citations

omitted.) Malinowski at 8-9.

       {¶16} This     reasoning     is   persuasive.    Conclusive   presumptions     being

unconstitutional, Vega no longer provides authority that attacks on the reliability of

breath analysis machines cannot be made, since the law presently gives the results of

such tests conclusive effect.

       {¶17} However, an analysis of the applicable statutes, even within the context of

Vega, does not lead to the conclusion that a trial court may not demand proof of the

Intoxilyzer 8000’s reliability.




                                               5
       {¶18} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, paragraph two of the

syllabus (1987). A trial court’s decision to exclude evidence will not be overturned

absent an abuse of discretion. State v. Benson, 11th Dist. Portage No. 2001-P-0086,

2002-Ohio-6942, ¶7, citing State v. Kinley, 72 Ohio St.3d 491, 497 (1995). An abuse of

discretion is no mere error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).       Rather, the phrase connotes an unreasonable, arbitrary, or

unconscionable attitude on the part of the trial court.         Id.   Therefore, “abuse of

discretion” describes a judgment neither comporting with the record, nor reason. See,

e.g., State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).

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

       {¶20} “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

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

of the Revised Code.” (Emphasis added.)




                                             6
       {¶21} 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. Trumbull 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 Judge Wright of this court

stated in a series of penetrating dissents:

       {¶22} “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. Lake No. 2012-L-067, 2013-Ohio-439, ¶38.1




1. See also Johnson, 11th Dist. Portage No. 2012-P-0008, 2013-Ohio-440; State v. Schrock, 11th Dist.
Portage No. 2012-P-0022, 2013-Ohio-441; State v. Harmon, 11th Dist. Portage No. 2012-P-0067, 2013-
Ohio-442; State v. Funk, 11th Dist. Portage No. 2012-P-0071, 2013-Ohio-444; State v. Hatcher, 11th Dist.
Portage Nos. 2012-P-0077 and 2012-P-0078, 2013-Ohio-445; State v. Webb, 11th Dist. Portage No.
2012-P-0052, 2013-Ohio-541; State v. Neice, 11th Dist. Portage No. 2012-P-0064, 2013-Ohio-542; State
v. Butler, 11th Dist. Portage No. 2012-P-0066, 2013-Ohio-543; State v. Lucas, 11th Dist. No. 2012-P-
0070, 2013-Ohio-544; State v. Pizzino, 11th Dist. Portage Nos. 2012-P-0079 and 2012-P-0080, 2013-
Ohio-545; State v. Kuntz, 11th Dist. Portage No. 2012-P-0082, 2013-Ohio-546; State v. McCune, 11th
Dist. Portage No. 2012-P-0089, 2013-Ohio-547; State v. Zoeckler, 11th Dist. Portage No. 2012-P-0092,
2013-Ohio-548; State v. Tagliaferri, 11th Dist. Portage No. 2012-P-0094, 2013-Ohio-549; State v. Hinton,
11th Dist. Portage No. 2012-P-0095, 2013-Ohio-550; State v. Canino, 11th Dist. Portage No. 2012-P-
0102, 2013-Ohio-551.


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       {¶23} Thus, 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 or reject the results

generated by the machines so approved. Further, even application of Vega does not

mandate the result advanced by the state.         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.

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

       {¶25} “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, *8 (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).




                                             8
       {¶26} “Moreover, the determination of evidential reliability necessarily implicates

the defendant’s substantive due process rights.

       {¶27} “‘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).

       {¶28} “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, * * *.” (Parallel citations

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

       {¶29} As the Court of Appeals, Tenth Appellate District has observed:

       {¶30} “Substantive due process prohibits the government from infringing upon

fundamental liberty interests in any manner, regardless of the procedure provided,

unless the infringement survives strict scrutiny; i.e., the government’s infringement must

be ‘narrowly tailored to serve a compelling state interest.’ Reno v. Flores (1993), 507

U.S. 292, 302, * * *.” In re M.D., 10th Dist. Franklin No. 07AP-954, 2008-Ohio-4259, ¶9.




                                            9
       {¶31} 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. A state of Oregon expert testified against the

reliability of the machine. Id. at *7. As stated by the district court:

       {¶32} “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.

       {¶33} The State of Ohio does not 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) (Grim, J.). As

the Gerome court found, “In the ODH certification of this instrument, access to the

source code was apparently not deemed necessary.” Id.

       {¶34} “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




                                              10
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). (Emphasis added.)

      {¶35} 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.

      {¶36} One of the liberty interests constitutionally protected by substantive due

process is “freedom from bodily restraint and punishment.” State v. Hayden, 96 Ohio

St.3d 211, 2002-Ohio-4169, ¶14.        Conviction under the OVI laws can result in

deprivation of this liberty interest. Consequently, substantive due process demands that

such convictions be premised on proceedings and procedures which are constitutionally

proper. The state has a compelling interest in preventing driving while impaired – but

any procedure adopted under the OVI laws must be narrowly tailored to serve that

interest. Presently, use of the Intoxilyzer 8000 does not meet this standard. It appears

that the state itself is unaware of exactly how the machine functions, and generates its

results. A criminal defendant is deprived of substantive due process when convicted

using a procedure which is not merely unknown, but unknowable.        Further, 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. 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.




                                           11
       {¶37} Technology continues not merely to change, but to change at an ever

more rapid pace. Machines like the Intoxilyzer 8000 are part of the technological shift.

This constant change makes it incumbent on our trial courts to assure that new

technologies provide accurate results, before citizens are convicted of crimes premised

on those technologies. That is what the trial court did in this case. I would affirm.

       {¶38} For all the reasons forgoing, I respectfully dissent.




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