[Cite as State v. Albaugh, 2013-Ohio-2834.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellant,          :
                                                       CASE NO. 2012-P-0119
        - vs -                                 :

JAMES R. ALBAUGH,                              :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 5003.

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).



CYNTHIA WESTCOTT RICE, J.

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

Court, Ravenna Division, which granted appellee, James R. Albaugh’s, motion in limine

and his motion to suppress the results of his Intoxilyzer 8000 test. This court recently

held in State v. Carter, 2012-P-0027, 2012-Ohio-5583 and State v. Rouse, 2012-P-

0030, 2012-Ohio-5584, 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 and

Rouse, we reverse the trial court’s judgment, and remand this matter for further

proceedings consistent with this opinion.

          {¶2}   On April 14, 2012, an Ohio State Patrol Trooper detained Albaugh at a

sobriety checkpoint. The trooper detected an odor of alcohol; Albaugh’s speech was

slurred; and he had glassy eyes. A breath test was administered using an Intoxilyzer

8000, the results of which showed that Albaugh’s blood-alcohol concentration was .184,

more than twice the legal limit.       He was cited for 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 4511.19(A)(1)(h), respectively. Albaugh pled not

guilty.

          {¶3}   Subsequently, Albaugh filed a motion in limine to exclude the results of his

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

motion to suppress, challenging the admissibility of seven categories of evidence,

including the results of his field sobriety tests, his statements to police, the officer’s

observations, and the results of his breath test. In support of his motion to suppress his

breath-test results, Albaugh listed 15 specific challenges to his breath test.           For

example, he argued the person administering his breath test was not qualified and did

not follow the mandatory 20-minute observation period prior to his breath test; his

breath samples were not analyzed according to the instrument’s display; the results

were not retained in a manner prescribed by the Director of Health; and the instrument

did not automatically perform a dry gas control test between the two subject tests.




                                               2
       {¶4}   The state argued that it was not required to present evidence that the

Intoxilyzer 8000 is reliable because the legislature had delegated this determination to

the Director of Health and the Supreme Court of Ohio upheld this delegation of authority

in State v. Vega, 12 Ohio St.3d 185 (1984).

       {¶5}   The parties agreed to submit the issue to the court on briefs and no

evidence was presented by either party.

       {¶6}   The trial court limited its review of Albaugh’s motion to suppress to the

admissibility of his breath-test results from the Intoxilyzer 8000, and did not address any

of Albaugh’s specific challenges to his own test results. The court granted Albaugh’s

motion in limine and his motion to suppress, holding that the state was required to

produce 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




                                              3
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

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. 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. Id. at ¶39.

       {¶14} This court in Carter held that, although the Intoxilyzer 8000 is presumed

reliable, a defendant is entitled to make specific challenges to the general reliability of

the Intoxilyzer 8000. Carter at ¶43, citing Vega. However, in making such a challenge,

the defendant has the burden of production. Carter, supra.

       {¶15} Pursuant to Carter and Rouse, we hold the trial court erred in requiring the

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

Albaugh’s motions, and in excluding the results of his breath test.




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       {¶16} Therefore, on remand, Albaugh is entitled, but has the burden of

production, to specifically challenge the general reliability of the Intoxilyzer 8000.

       {¶17} We note that, while Albaugh presented some 15 specific challenges to his

breath-test results in his motion to suppress, on appeal he focuses on only one of them,

i.e., the machine’s alleged failure to automatically perform a dry gas control test

between the two subject tests. However, because the trial court did not address this

challenge in its judgment, we cannot address it.

       {¶18} 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.

       {¶19} I concur in the judgment ultimately reached in the opinion. I do not concur

that a defendant bears the burden of production when challenging breath test results

obtained from the Intoxilyzer 8000 in the context of a suppression hearing, for the

reasons stated in my concurring/dissenting opinions in State v. Carter, 11th Dist. No.

2012-P-0027, 2012-Ohio-5583, and State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-

Ohio-5584.

                                     _______________



                                              5
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶20} I respectfully dissent.

       {¶21} As the majority 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.

       {¶22} 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.

       {¶23} 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.

       {¶24} 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.

       {¶25} 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




                                             6
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.

       {¶26} 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.

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

       {¶28} “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.)

       {¶29} 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.




                                             7
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:

       {¶30} “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

       {¶31} 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

1. See also Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440; State v. Schrock, 11th Dist. No. 2012-
P-0022, 2013-Ohi-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.


                                                  8
“‘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.

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

       {¶33} “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).

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

the defendant’s substantive due process rights.

       {¶35} “‘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




                                             9
property must be impaired before the protections of substantive due process become

available.’ State v. Small, 162 Ohio App.3d. 375, 2005-Ohio-813, ¶11, * * * (10th Dist.),

quoting Gutzwiller v. Fenik, 860 F.2d. 1317, 1328 (6th Cir. 1989).

         {¶36} “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.

         {¶37} 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:

         {¶38} “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




                                             10
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.

      {¶39} 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).

      {¶40} “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).

      {¶41} I appreciate the majority’s holding that a defendant is entitled to make

specific challenges to the general reliability of the Intoxilyzer 8000. However, the fact

that the state does not seem to have access to the source code for the machine raises

the question of whether the Director of Health had access when making the decision to

approve it. Also, it is difficult to frame a specific challenge to results generated by a

machine the operation of which may not be fully understood.

      {¶42} 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.

      {¶43} 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




                                           11
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.

       {¶44} 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:

       {¶45} “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 [2004]. 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.)




                                            12
      {¶46} 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.

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




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