[Cite as State v. Warner, 2013-Ohio-4116.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellant,          :
                                                       CASE NO. 2012-P-0121
        - vs -                                 :

RAYMOND ALAN WARNER,                           :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 3970.

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 Carolyn K. Mulligan,
Assistant Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266
(For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     The state of Ohio appeals the judgment of the Portage County Municipal

Court, Ravenna Division, which granted appellee, Raymond Alan Warner’s, motion to

suppress the results of his Intoxilyzer 8000 test. This court recently held in State v.

Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, that the Intoxilyzer 8000 is

presumed reliable, and that the defendant is entitled, but has the burden of production,

to specifically challenge the general reliability of the Intoxilyzer 8000. Based on this
court’s precedent in Carter, we reverse the trial court’s judgment, and remand this

matter for further proceedings consistent with this opinion.

       {¶2}     On March 29, 2012, a citation was filed in the trial court, charging Warner

with operating his vehicle under the influence of alcohol and driving with a prohibited

blood-alcohol     concentration,   in   violation   of   R.C.   4511.19(A)(1)(a)   and   R.C.

4511.19(A)(1)(d), respectively; driving with a suspended driver’s license, in violation of

R.C. 4510.21(A); and failure to yield at a posted red light, in violation of R.C.

4511.13(C). Warner pled not guilty.

       {¶3}     Subsequently, Warner filed a motion to suppress to exclude the results of

his breath test, challenging the general reliability of the Intoxilyzer 8000.       He also

argued the machine was not working properly, the operator was not qualified, and the

testing procedure was flawed.

       {¶4}     The state filed a brief in opposition, arguing it was not required to present

evidence that the Intoxilyzer 8000 is reliable prior to the introduction of Warner’s breath-

test results because the legislature had delegated this determination to the Director of

Health and the Supreme Court of Ohio upheld this delegation in State v. Vega, 12 Ohio

St.3d 185 (1984).

       {¶5}     The parties submitted the issue to the court on briefs and no evidence was

presented by either party.

       {¶6}     The trial court addressed only Warner’s challenge to the general reliability

of the Intoxilyzer 8000; the court did not address his specific challenges. The court

granted Warner’s motion to suppress, holding that the state was required to produce




                                               2
evidence that the Intoxilyzer 8000 is reliable in order for his test results to be admissible

at trial.

        {¶7}   The trial court granted the state’s motion to stay execution of the

judgment.

        {¶8}   The state appeals the trial court’s judgment, asserting the following for its

sole 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} We review a trial court’s legal determinations at a suppression hearing de

novo. State v. Dijsheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19.

        {¶11} In Carter, this court followed Vega in acknowledging that the General

Assembly in R.C. 3701.143 authorized the Director of Health to determine techniques

for chemically analyzing the amount of alcohol contained in a person’s breath. Carter at

¶16-17.     Further, this court recognized that R.C. 4511.19(D)(1)(b) requires breath

samples be analyzed for alcohol content in accord with methods approved by the

Director of Health pursuant to R.C. 3701.143. Carter at ¶20. This court noted that the

Director of Health, at Ohio Adm.Code 3701-53-02(A)(3), approved the Intoxilyzer 8000

as an evidential breath-testing instrument. Carter at ¶21.

        {¶12} Further following Vega, this court in Carter stated that R.C. 4511.19

represented a legislative determination that breath-testing devices adopted by the

Director of Health are generally reliable. Carter at ¶24, citing Vega at 188. This court




                                             3
stated that “‘in light of R.C. 4511.19, an accused may not make a general attack upon

the reliability * * * of a breath testing instrument.’” Carter at ¶25, quoting Vega at 190.

       {¶13} This court held that since the General Assembly has legislatively

determined that the Intoxilyzer 8000 is reliable, it must be presumed this device is

reliable. Carter at ¶37. In fact, this court in State v. Miller, 11th Dist. No. 2012-P-0032,

2012-Ohio-5585, held that the Intoxilyzer 8000 “is presumed to be generally reliable.”

Id. at ¶32. Therefore, this court held that the state did not have the burden to produce

evidence of the machine’s reliability in order for the defendant’s breath-test results to be

admissible at trial. Carter at ¶39.

       {¶14} This court in Carter held that, in light of Vega and the presumption that the

Intoxilyzer 8000 is reliable, a defendant is entitled to make specific challenges to the

general reliability of the Intoxilyzer 8000. Carter at ¶43, citing Vega. In support of this

holding, this court in Carter held that Vega’s prohibition against a general attack on the

reliability of the breath instrument “allows for a specific challenge to the reliability of the

Intoxilyzer 8000.” (Emphasis added.) Carter at ¶35.

       {¶15} In Miller, supra, this court also held that a defendant can make specific

challenges to the reliability of the Intoxilyzer 8000, as follows:

       {¶16} 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 * * * 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




                                              4
               assertions that the State failed to prove its reliability, which is

               prohibited under Vega. See Vega at 189. (Emphasis added.) Miller

               at ¶32.

        {¶17} Further, this court in Miller held that a defendant seeking to suppress the

results of his breath test can make “specific challenges to the Intoxilyzer’s reliability,”

and that “[a] defendant may * * * challenge the reliability of the Intoxilyzer 8000 with

specific arguments * * *.” Id. at ¶33.

        {¶18} In addition, this court in Carter held that, because the instrument is

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

the Intoxilyzer 8000 is not reliable. If the defendant satisfies his initial burden, the

burden of proof then shifts to the state to produce evidence establishing the machine’s

reliability.

        {¶19} As a practical matter, after both parties present the evidence in support of

their respective positions, the trial court determines whether the defendant has met his

initial burden of production. If the court determines that the defendant has not met his

burden of production, the motion shall be denied. However, if the court finds that the

defendant has satisfied his burden, the court shall then determine whether the state has

satisfied its burden of proof. If it has, the motion shall be denied. However, if it has not,

the motion shall be granted.

        {¶20} 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




                                             5
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 (July 19, 1995);

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

       {¶21} As noted above, Warner asserted certain challenges below to the

administration of his particular test. However, because the trial court did not address

these challenges in its judgment and Warner does not raise them on appeal, we cannot

consider them.

       {¶22} Pursuant to Carter, we hold the trial court erred in requiring the state to

produce evidence of the Intoxilyzer 8000’s general reliability, in granting Warner’s

motion, and in excluding the results of his breath test.




                                             6
       {¶23} Therefore, on remand, the trial court is instructed to reinstate Warner’s

per-se charge.      Further, Warner is entitled, but has the burden of production, to

specifically challenge the general reliability of the Intoxilyzer 8000.

       {¶24} For the reasons stated in this opinion, it is the judgment and order of this

court that the judgment of the Portage County Municipal Court, Ravenna Division, is

reversed, and this matter is remanded to the trial court for further proceedings as set

forth in this opinion.



DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion,

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

                                 _____________________


DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.


       {¶25} I concur in the judgment of this court, that, pursuant to R.C.

4511.19(D)(1)(b) and R.C. 3701.143, as interpreted by State v. Vega, 12 Ohio St.3d

185, 465 N.E.2d 1303 (1984), a defendant may not challenge the general reliability of

the Intoxilyzer 8000 as a testing instrument approved by the Ohio director of health.

       {¶26} I write separately, however, because I have reservations with this court’s

reading of the Ohio Supreme Court’s decision in Vega as creating a rebuttable

presumption as to the general reliability of approved testing instruments for the purpose

of admissibility.

       {¶27} 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.”




                                              7
Id. at 190. The court explained that, by enacting R.C. 4511.19, the General Assembly

“ha[s] legislatively resolved the questions of the reliability and relevancy of intoxilyzer

tests.”     Id. at 188.     “[The judiciary must recognize] the necessary legislative

determination that breath tests, properly conducted, are reliable irrespective that not all

experts wholly agree and that the common law foundational evidence has, for

admissibility, been replaced by statute and rule; and that the legislative delegation was

to the Director of Health, not the court, the discretionary authority for adoption of

appropriate tests and procedures, including breath test devices.” Id. at 188-189, citing

State v. Brockway, 2 Ohio App.3d 227, 232, 441 N.E.2d 602 (4th Dist.1981).

          {¶28} Under Vega, the admissibility and weight of the results of a breath testing

instrument may be challenged on other grounds. 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). “There 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, 12 Ohio St.3d 185, 465 N.E.2d 1303, 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); Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-

Ohio-2773, 933 N.E.2d 317, ¶ 27 (10th Dist.) (“while [supreme court precedent] permits

evidentiary objections to the test results challenging issues such as competency,




                                              8
admissibility, relevancy, authenticity, and credibility, it does not indicate that a challenge

to the ‘general reliability’ is among the permissible challenges”).

       {¶29} The writing judge fails to distinguish among the types of challenges that

may be raised against a breath-testing instrument. The admissibility of breath test

results may be challenged based on the State’s failure to analyze the sample in

accordance with the approved methods and/or operator qualifications. For this type of

challenge, the usual suppression procedures are followed. Thus, 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 this court places

upon defendants when challenging the reliability of the machine, and which the State

would otherwise bear in a pre-trial motion to suppress. 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”).

       {¶30} Breath test results may also be challenged and excluded based on the

testing instrument’s general reliability.    Trial courts are invested with the role of

gatekeeper with respect to scientific evidence. “This gatekeeping function imposes an

obligation upon a trial court to assess both the reliability of an expert’s methodology and

the relevance of any testimony offered before permitting the expert to testify.” Terry v.

Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 24, citing 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).




                                              9
       {¶31} The test results of the Intoxilyzer 8000, however, are not subject to this

type of challenge. As noted above, the Ohio Supreme Court has held that the General

Assembly “ha[s] legislatively resolved the questions of the reliability and relevancy of

intoxilyzer tests.” Vega, 12 Ohio St.3d at 188, 465 N.E.2d 1303.

       {¶32} Likewise, this court has also recognized that the results of the Intoxilyzer

8000 may not be excluded based on a Daubert/reliability challenge.           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).

       {¶33} Finally, breath test results may be challenged at trial by impeachment and

by attacks on their credibility/reliability.        These challenges do not result in the

suppression or exclusion of the test results, but undermine their evidentiary value. Both

the Ohio Supreme Court and this court have recognized the permissibility of such

challenges. Vega at 189; Tanner, 15 Ohio St.3d at 6, 472 N.E.2d 689; State v. Miller,

11th Dist. No. 2012-P-0032, 2012-Ohio-5585, ¶ 31.

       {¶34} The writing judge’s position conflates these three types of challenges in a

manner contrary to Vega and inconsistent with this court’s precedents. The writing

judge acknowledges that, by virtue of legislative determination, the Intoxilyzer 8000

“must be presumed * * * reliable.” Supra at ¶ 13. The writing judge then states that a

defendant may rebut this presumption, bearing “the burden of production to present




                                               10
evidence that the Intoxilyzer 8000 is not reliable,” with burden then shifting to the State

“to produce evidence establishing the machine’s reliability.” Supra at ¶ 18.

        {¶35} By so holding, the writing judge provides for Daubert-style challenges to

the Intoxilyzer 8000’s reliability, despite the prohibition of such challenges in Vega,

Carter, and Rouse. The writing judge provides for such challenges in the context of a

motion to suppress, whereas the Ohio Supreme Court and this court have previously

held that such challenges to reliability are properly raised at trial. Lastly, the writing

judge’s position disrupts the ordinary course of proceedings at a suppression hearing,

by placing the burden of production on the defendant. Such a procedure as the writing

judge prescribes would result in an unnecessarily confused hearing with the State

bearing the burden of production on some challenges, and the defendant bearing the

burden on others, all depending on how one characterizes the particular challenge to

reliability.

        {¶36} This situation is avoided by a more faithful application of Vega, whereby

the State must address specific issues regarding the Intoxilyzer 8000’s reliability by

demonstrating 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 and the qualifications of the person

administering the test and otherwise strive to discredit the weight to be given the

specific test results. This has been my consistent position since the Miller decision.

See Miller, 2012-Ohio-5585, at ¶ 31-32.

        {¶37} Therefore, in regard to the preceding statements, I concur in judgment

only.




                                            11
                                _____________________


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


       {¶38} I respectfully dissent.

       {¶39} 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.

       {¶40} 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.

       {¶41} 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.

       {¶42} 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.




                                            12
      {¶43} 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.

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

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

12TRC 03580 (April 22, 2013) (Spanagel, J.). As that court states:

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

Vega is no longer good law, when they stated:

      {¶46} “‘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 (* * *).

      {¶47} “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




                                            13
the operator. See, e.g., Cincinnati v. Sand (1975), 43 Ohio St.2d 79, * * *. Defense

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.’ * * *

       {¶48} “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.

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

unconstitutional, Vega can no longer provide 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.




                                                 14
       {¶50} 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.

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

       {¶52} “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.)

       {¶53} 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




                                              15
approval from the director of health.          As my colleague, Judge Wright, has recently

stated in a series of penetrating dissents:

       {¶54} “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

       {¶55} 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.

1. See also Johnson, 11th Dist. No. 2012-P-0008, 2013-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,
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.


                                                  16
       {¶56} As Judge Wright further noted in Collazo:

       {¶57} “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).

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

the defendant’s substantive due process rights.

       {¶59} “‘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).




                                            17
         {¶60} “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. No. 2012-L-067, 2013-Ohio-439, ¶41-44.

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

         {¶62} “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. No. 07AP-954, 2008-Ohio-4259, ¶9.

         {¶63} 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

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

court:

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

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




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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.

      {¶65} 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) (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.

      {¶66} “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).

      {¶67} 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.

      {¶68} 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




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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.            I

appreciate the writing judge’s holding that a defendant is entitled to make specific

challenges to the general reliability of the Intoxlyzer 8000 – but 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.

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




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