[Cite as State v. Harmon, 2013-Ohio-442.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellant,          :
                                                        CASE NO. 2012-P-0067
        - vs -                                 :

JESSICA R. HARMON,                             :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2011 TRC 16194.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street,
Ravenna, OH 44266 (For Plaintiff-Appellant).

Joseph C. Patituce, and Megan M. Patituce, Patituce & Associates, L.L.C., 26777
Lorain Rd., Suite 708, North Olmsted, OH 44070 (For Defendant-Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals the June 20, 2012 Journal

Entry of the Portage County Municipal Court, Ravenna Division, suppressing the result

of a breath test performed on defendant-appellee, Jessica R. Harmon, using an

Intoxilyzer 8000. The issue before this court is whether a trial court, exercising its

evidentiary role as gatekeeper, may entertain a challenge to the results 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 December 9, 2011, the Ohio State Highway Patrol issued Harmon a

traffic ticket, charging her 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 with a Tail Lights violation, a minor

misdemeanor in violation of R.C. 4513.05(A).

       {¶3}   On December 12, 2011, Harmon entered a plea of “not guilty.”

       {¶4}   On January 30, 2012, Harmon filed a Motion to Suppress Evidence,

seeking the suppression of “[a]ny tests of defendant’s coordination, sobriety, alcohol or

drug level, including chemical tests”; “[a]ny observations and opinions of the police

officer(s) who stopped defendant”; “[a]ny statements made by defendant”; and “[a]ny

physical evidence obtained by the police.” Harmon raised numerous grounds for the

suppression of evidence, including, inter alia, that “the State of Ohio must demonstrate

that this specific Intoxilyzer 8000 is admissible pursuant to Daubert v. Merrell [sic] Dow

Pharmaceuticals[, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)].”

       {¶5}   On May 21, 2012, a hearing was held on the Motion to Suppress

Evidence.     Counsel for Harmon modified the Motion to Suppress by withdrawing

portions of it “as it relates to the reason for the initial stop, basis of the field sobriety

tests and the results of those field sobriety tests.” Counsel for Harmon desired the

hearing to go forward “as it relates to the Intoxilyzer 8000.” It was counsel’s belief that

“the State of Ohio is required to put on a witness who can either explain to this Court,

under Criminal Rule 702 and/or Vega, why this should be before the Court.”              The

assistant prosecuting attorney responded that it was the State’s position that it was not

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necessary to present evidence on this issue. The municipal court took the matter under

advisement.

        {¶6}    On June 20, 2012, the municipal court issued a Journal Entry, ruling on

Harmon’s Motion.       The court stated that it was “limit[ing] its review of Defendant’s

Motion to Suppress solely to the admissibility of a B[r]AC test from the Intoxilyzer 8000.”

The court determined that the issue before it was identical to the issue in “State v.

Johnson (2012) decided January 6, 2012 in Portage County Municipal Court Case R 11

TRC 4090, unreported.” Based on the “rationale and findings in Johnson,” the court

found “that Defendant’s Motion to Suppress is well taken and is hereby granted,” and

ruled that the breath test results of the Intoxilyzer 8000 would not be admissible at trial.

Without expressly dismissing the R.C. 4511.19(A)(1)(d) charge, the court ordered that

the “remaining charges alleging a violation of R.C. 4511.19(A)(1)(a) and 4513.05 shall

be set for trial.”

        {¶7}    On June 21, 2012, the State filed its Notice of Appeal.

        {¶8}    On June 25, 2012, the municipal court stayed execution of its June 20,

2012 Journal Entry pending appeal.

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

        {¶10} “[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.”

        {¶11} The issue of whether a general attack on the accuracy/reliability of the

Intoxilyzer 8000 has been previously decided by this court. State v. Miller, 11th Dist.

No. 2012-P-0032, 2012-Ohio-5585; State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-

Ohio-5584.

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       {¶12} While preliminary, Daubert-based challenges to the admissibility of breath

test results are prohibited, the results of such tests are subject to a myriad of other

challenges.

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

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

health” and “by an individual possessing a valid permit.” R.C. 4511.19(D)(1)(b). The

Ohio Supreme Court has affirmed that “[t]here is no question that the accused may * * *

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

operator,” as well as present “expert testimony as to testing procedures at trial going to

weight rather than admissibility.” State v. Vega, 12 Ohio St.3d 185, 189, 465 N.E.2d

1303 (1984). 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); State v. French, 72

Ohio St.3d 446, 451-452, 650 N.E.2d 887 (1995) (in addition to requiring the State to

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

approved by the Director of Health, and that the analysis was conducted by a qualified

individual holding a permit issued by the Director of Health”, “[e]videntiary objections

challenging the competency, admissibility, relevancy, authenticity, and credibility of the

chemical test results may still be raised”).

       {¶14} In the present case, Harmon challenged the breath test results of the

Intoxilyzer 8000 on several grounds: that the State is required “to lay the foundation for

the admission of these tests at trial by demonstrating conformity to the requirements of

the Ohio Revised Code [and] the Ohio Administrative Code”; the “Defendant’s breath

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sample was not analyzed according to the operational checklist for the instrument used,

and checklist forms recording the results were not retained as required by OAC 3701-

53-02(C) and OAC 3701-53-01(A)”; and “Defendant’s breath sample was not analyzed

in accordance with OAC 3701-53-04(B) which states in plain language that all

instruments listed in OAC 3701-53-02(A)(3) (The intox. 8000) must perform a dry gas

control before and after every subject test.”

        {¶15} Under the statute and cases discussed above, these were valid

challenges to the admissibility of breath test results and properly raised in a motion to

suppress.      The municipal court, however, granted Harmon’s motion solely on the

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

reliability.   In her appellate brief, Harmon contends the State’s failure to produce

evidence in response to any of her challenges to the admissibility of the breath test

results is grounds for affirming the municipal court’s decision. Given the circumstances

of the present case, we disagree. At the suppression hearing, the State requested the

court to “rule on the State’s brief that was filed,” which only addressed the necessity of

introducing evidence to demonstrate the Intoxilyzer 8000’s general reliability.       The

court’s ruling was limited to this issue. Accordingly, on remand, it will be necessary for

the court to hold another hearing to address the other issues raised in Harmon’s Motion

to Suppress, at which time, the State will have the opportunity to respond to Harmon’s

specific arguments.

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

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

Court, Ravenna Division, granting Harmon’s Motion to Suppress Evidence, is reversed,




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

to be taxed against appellee.



MARY JANE TRAPP, J., concurs,

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

                                ______________________



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

       {¶18} R.C. 4511.19(D)(1)(b) does not mandate admissibility of breath test

results derived from the Intoxilyzer 8000.       Rather, that statute which, by its plain

language controls the issue in this case, vests the trial court with discretion regarding

admissibility despite approval from the director. I, therefore, respectfully dissent.

       {¶19} 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.

       {¶20} R.C. 4511.19(D)(1)(b) states that “[i]n 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,

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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.)

       {¶21} The statute does not use the word “shall,” which would mandate

admission regardless of the circumstances. Rather, the statute uses the word “may.”

For purposes of statutory construction, “use of the word ‘may’ is generally construed to

make the provision in which it is contained optional, permissive, or discretionary * * *.”

Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107 (1971); State v. Suchevits,

138 Ohio App.3d 99, 102 (11th Dist. 1999).

       {¶22} 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).




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

the defendant’s substantive due process rights.

       {¶24} “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).

       {¶25} 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).

       {¶26} The trial court was aware that other courts had deemed the Intoxilyzer

8000 unreliable even though it was approved. Against the backdrop, the court ordered

the state to establish the general reliability of the Intoxilyzer 8000 before admitting the

results. Given the constitutional gravity of admitting unreliable results, however, and its

statutory authority to act as gatekeeper regarding breath test results, the lower court’s

decision to require the state to produce evidence of the machines reliability was an

eminently reasonable and sound legal decision. “[A]n abuse of discretion is the trial

court’s ‘failure to exercise sound, reasonable, and legal decision-making.’” State v.




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Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary

(8 Ed.Rev.2004) 11.

       {¶27} Rather than present evidence of the general reliability of the Intoxilyzer

8000, the state took the position that the trial court could not require it to do so pursuant

to Vega and its progeny. Vega, 12 Ohio St.3d 185 (1984). I do not read Vega as

holding that under no circumstances can a trial court exercise its discretion to require

evidence of general reliability of an approved breath testing device as a condition to

admissibility.

       {¶28} 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.” (Emphasis added.) Id. at 186.

       {¶29} Threshold admissibility was not at issue in Vega. That is, the defendant

made no challenge to the trial court’s admission of his breath test result. Instead, after

the state presented its case and rested, the defendant attempted to present a

“reliability” defense by attacking intoxilyzers in general. See also State v. Vega, 5th

Dist. No. CA-1766, 1993 Ohio App LEXIS 14350, *16 (Nov.22, 1983)(Hoffman, J.,

dissenting). Unlike Vega, 12 Ohio St. 3d 185, threshold admissibility is the issue in the

case before us.      Moreover, unlike Vega, our case is not about the reliability of

intoxilyzers in general. Our case is limited to whether the Intoxilyzer 8000 is reliable. In

short, the circumstances at issue in Vega were fundamentally distinguishable from

those in our case.

       {¶30} Additionally, the rule in Vega does not contemplate a situation where, as

here, an approved device’s general reliability has been assessed by other courts for

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both use in and out of this state and the device’s reliability has been found suspect.

See State v. Johnson, Portage County Municipal Court, January 6, 2012.                     Vega

expressly states that its holding does not involve a situation where there was an

assertion that there was an abuse of discretion by the director in approving the breath

testing device at issue. Vega at 187, fn. 2.        Obviously, in our case if the Intoxilyzer

8000 is unreliable, approval would amount to an abuse of discretion and admission of

the test results a violation of substantive due process.

       {¶31} Breath tests are “‘* * * generally recognized as being reasonably reliable

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

operators.’” (Emphasis added.) Vega at 186, quoting Westerville v. Cunningham, 15

Ohio St.2d 121, 128(1968). Thus, the central issue as presented in the case before us,

does the Intoxilyzer 8000 qualify as “proper equipment”? The answer is “yes” if it is

generally reliable and “no” if it is not. This is a query, however, that, under Ohio law, a

trial court is entitled to resolve pursuant to R.C. 4511.19(D)(1)(b).

       {¶32} In this case, the trial court exercised its discretion to safeguard the

defendant’s right to substantive due process by merely requiring the state to show the

Intoxilyzer 8000 is generally reliable. Under the circumstances, this decision was sound

and reasonable.       This is particularly true in light of the fact that a trial court is vested

with broad discretion in the admission or exclusion of evidence and in recognition that it

has inherent power to exclude or strike evidence on its own motion. Caroll v Caroll, 7th

Dist. No. 89-C-1, 1990 Ohio App. LEXIS 1339, *8 (April 5, 1990); Neil v. Hamilton

County, 87 Ohio App.3d 670; Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69, 70

(10th Dist. 1988).




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       {¶33} Given the foregoing point, there is no reason to remand this case to the

trial court based upon perceived inadequacies in the motion to suppress. The trial court

made it abundantly clear that it would not admit the test results absent proof of reliability

of the Intoxilyzer 8000. Requiring the proponent to establish the reliability of scientific

evidence is something that a trial court may require as previously discussed. The state

was well aware of what the trial court required when it ordered it to produce evidence of

the Intoxilyzer 8000’s reliability, independent and irrespective of the contents of the

motion to suppress. Accordingly, there is no procedural due process violation of the

state’s right to notice and an opportunity to be heard.        The trial court’s order was

unambiguous and an exercise of the sound discretion as the gatekeeper of breath test

result admissibility.

       {¶34} When an appellate court [**14] is reviewing a pure issue of law, “the mere

fact that the reviewing court would decide the issue differently is enough to find error (of

course, not all errors are reversible. Some are harmless; others are not preserved for

appellate review). By contrast, where the issue on review has been confined to the

discretion of the trial court, the mere fact that the reviewing court would have reached a

different result is not enough, without more, to find error.” Sertz v. Sertz, 11th Dist. No.

2011-L-063, quoting Beechler, 2010-Ohio-1900 at ¶67.

       {¶35} This appeal is centered around a discretionary decision made by the trial

court. As I find the court’s decision not only reasonable, but constitutionally astute, I

would affirm the trial court’s exclusion of the breath test in light of the state’s refusal to

present evidence on the issue.




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