[Cite as Parma v. Schoonover, 2014-Ohio-400.]


                 Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100152




                                     CITY OF PARMA
                                                      PLAINTIFF

                                                vs.

                               SCOTT SCHOONOVER
                                                      DEFENDANT-APPELLEE

                            [Appeal by Department of Health]



                                          JUDGMENT:
                                           REVERSED


                                      Criminal Appeal from the
                                       Parma Municipal Court
                                      Case No. 12 TRC 17454

        BEFORE: Jones, P.J., S. Gallagher, J., and Keough, J.

        RELEASED AND JOURNALIZED: February 6, 2014
ATTORNEYS FOR NON-PARTY APPELLANT

Mike DeWine
State Attorney General

Lyndsay Nash
Assistant State Attorney General
30 East Broad Street, 26th Floor
Columbus, Ohio 43215


 ATTORNEY FOR PLAINTIFF

Richard A. Neff
614 W. Superior Avenue
Suite 1310
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

For Scott Schoonover

Hector G. Martinez, Jr.
Hector G. Martinez, Jr., Co.
4130 State Route 306
Suite 240
Willoughby, Ohio 44094
LARRY A. JONES, SR., P.J.:

       {¶1} Non-party appellant, the Ohio Department of Health (“ODH”), appeals the

trial court’s denial of its motion to quash a subpoena. Finding merit to the appeal, we

reverse.

                                   I.   Procedural History

       {¶2} In 2012, defendant-appellee, Scott Schoonover, was charged in Parma

Municipal Court with operating a vehicle while under the influence of alcohol, prohibited

blood alcohol content, failure to display his operator’s license, no headlights, and a

speeding violation.

       {¶3} Schoonover filed a motion to suppress, which was set for an oral hearing. He

also served a subpoena duces tecum on an employee of the ODH seeking

       a copy of any and all records maintained by the Ohio Dept. of Safety relating
       to the Intoxilyzer 8000, serial number 90-004181, located at the Parma
       Police Department.

The subpoena requested numerous documents that were divided into categories “a - k.”

       {¶4} The ODH determined that it would provide Schoonover with documents to

satisfy categories “b - i,” but filed a motion to quash the subpoena as it related to

categories “a,” “j,” and “k.”   Categories “a,” “j,” and “k” included:

       a. Any and all computerized online breath archives data, also knows as
       “COBRA” data;

       ***

       j. Any and all correspondence, including but not limited to, letters, emails,
       memorandums, correspondence, notes, text messages, internal
       correspondence regarding the Intoxilyzer 8000 among and between Ohio
      Dept. of Health employees and/or agents, Ohio Dept. of Public Safety
      employees and/or agents, and CMI, Inc. employees and/or agents.

      k. Any and all communications between Ohio Dept. of Health and the
      Parma Police Dept. and/or any prosecuting or assisting prosecuting attorney
      for the City of Parma about the Intoxilyzer 8000.

      {¶5} In its motion to quash, the ODH argued that categories “a” and “j” should be

quashed pursuant to Ohio Crim.R. 17(C) as unreasonable or oppressive and that no

documents existed as to category “k.”     The ODH also outlined the four-factor test set

forth in In re Subpoena Duces Tecum Served upon Attorney Potts, 100 Ohio St.3d 97,

2003-Ohio-5234, 796 N.E.2d 915, and argued that Schoonover could not make the

requisite showing necessary to require the ODH to produce the documents.

      {¶6} The trial court denied the motion to quash and ordered the items produced.

The trial court did not hold a hearing on the motion to suppress and granted the ODH’s

motion to stay the case pending appeal.

      {¶7} The ODH filed a notice of appeal and raised one assignment of error for our

review:

      [I.] The trial court abused its discretion by ordering [ODH] to produce
      documents related to the general reliability of the Intoxilyzer 8000 without
      holding an evidentiary hearing.


                                 II.   Law and Analysis

      {¶8} Although discovery orders are generally interlocutory, denials of motions to

quash subpoenas served on non-parties are final appealable orders. Tisco Trading USA,

Inc. v. Cleveland Metal Exchange, Ltd., 8th Dist. Cuyahoga No. 97114, 2012-Ohio-493, ¶
5, citing Munro v. Dargai, 8th Dist. Cuyahoga No. 54622, 1988 Ohio App. LEXIS 1144

(Mar. 31, 1988).    We apply an abuse of discretion standard in reviewing a trial court’s

decision concerning a motion to quash a subpoena. State v. Strickland, 183 Ohio App.3d

602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 37 (8th Dist.).

      {¶9} The ODH filed its motion to quash pursuant to Crim.R. 17(C). The Ohio

Supreme Court has adopted a four-part test with regard to a motion to quash filed pursuant

to Crim.R. 17(C).     Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, 796 N.E.2d 915, at

paragraph one of the syllabus, citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090,

41 L. Ed.2d 1039 (1974). In accordance with Nixon, the proponent of the subpoena must

show (1) that the subpoenaed documents are evidentiary and relevant; (2) that they are not

otherwise reasonably procurable in advance of trial by due diligence; (3) that the

proponent cannot properly prepare for trial without production and inspection of the

documents and that the failure to obtain the documents may tend to unreasonably delay the

trial, and (4) that the subpoena is made in good faith and is not intended as a general

fishing expedition. Potts at id.

      {¶10} “Pursuant to Nixon, the trial court is required to conduct an evidentiary

hearing, at which the party filing the subpoena duces tecum must convince the court that

the information sought in the subpoena meets the Nixon test.” Id. at ¶ 14.        “At the

hearing, which may be held in camera, the proponent of the subpoena must demonstrate

that the subpoena is not unreasonable or oppressive by showing that the request satisfies

the Nixon factors.” Id. at ¶ 16.
      {¶11} In State v. Baker, 12th Dist. Warren No. CA2009-06-079, 2010-Ohio-1289,

the defendant was charged with operating a vehicle while under the influence of alcohol.

The defendant filed a motion to suppress and also filed a subpoena duces tecum,

commanding the state trooper who arrested her to appear in court and to bring the

following items with him:     “The BAC DataMaster serial # 130675, along with all

operator’s manuals, [the] Department of Health DataMaster Training Manual, and ALL

maintenance records for said instrument.” Id. at ¶ 9.

      {¶12} On the day of the motion to suppress hearing, the prosecutor filed a motion to

quash the defendant’s subpoena duces tecum. The trial court proceeded with the motion

to suppress hearing and held its ruling on the motion to quash in abeyance. It eventually

granted the prosecutor’s motion to quash with respect to the BAC DataMaster, but did so

without holding an evidentiary hearing.

      {¶13} On appeal, the Twelfth Appellate District determined that the trial court erred

in granting the motion to quash without first holding an evidentiary hearing. The court

noted that the “Potts decision expressly mandated that a trial court conduct a separate

evidentiary hearing to determine whether a subpoena duces tecum is unreasonable or

oppressive under Nixon.”   Id. at ¶ 21, citing Potts at ¶ 14-15.

      {¶14} Thus, pursuant to Potts, once a motion to quash a subpoena duces tecum is

filed, the proponent of the subpoena bears the burden of showing, at an evidentiary

hearing, that he or she can meet the four-factors set forth in Nixon to show that the

subpoena is not unreasonable or oppressive.
       {¶15} In the case at bar, the trial court summarily ruled on the ODH’s motion to

quash without holding the requisite evidentiary hearing and applying the Nixon test.

There is also no evidence that the trial court solicited evidence from Schoonover, the

proponent of the subpoena, on the four Nixon factors; in fact, the record indicates that the

trial court denied the motion to quash within a day of when it was filed.

       {¶16} Because the trial court did not hold an evidentiary hearing to address the

Nixon test, we reverse the judgment of the trial court and remand the case to the trial court

to hold an evidentiary hearing and apply the appropriate standard to the motion to quash.

       {¶17} The sole assignment of error is sustained.

       {¶18} Judgment reversed and case remanded.

       It is ordered that appellant recover of appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH
SEPARATE OPINION
SEAN C. GALLAGHER, J., CONCURRING:

       {¶19} While I concur with the judgment and analysis of the majority, I write

separately to give some context to the trial court’s decision to deny the state’s motion to

quash the subpoena.

       {¶20} Municipal courts across Ohio are inundated with challenges to the

admissibility of results produced by the Intoxilyzer 8000. Many courts are admitting the

test results as reliable because of the approval of these machines by the Director of the

Ohio Department of Health.      See generally State v. Bergman, 11th Dist. Portage No.

2012-P-0124, 2013-Ohio-5811. Nevertheless, many of these same courts are allowing

defendants to challenge their specific test results because of concerns about the reliability

of the Intoxilyzer 8000 machines.      See generally State v. Gerome, Athens M.C. No.

11TRC017334 (June 29, 2011).

       {¶21} A debate is now under way in these courts over whether the challenges to the

test results produced by the Intoxilyzer 8000 represent a general attack on breath testing

precluded by State v. Vega, 12 Ohio St.3d 185, 190, 465 N.E.2d 1303 (1984), or simply an

attempt to challenge a specific test result that Vega presumably allowed.          In many

instances, as is the case here, courts have permitted defendants to access data involving

specific Intoxilyzer 8000 machines through the discovery process.      Nevertheless, as the

majority notes, the Potts decision requires an evidentiary hearing where a motion to quash

a subpoena is filed. Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, 796 N.E.2d 915. In

fairness to the trial court, these hearings are often perfunctory where the trial court has
already made a decision in similar cases to allow the discovery of data related to a specific

Intoxilyzer 8000 breath-testing device.        See generally Cincinnati v. Ilg, 1st Dist.

Hamilton No. C-120667, 2013-Ohio-2191.

         {¶22} In any event, I agree with the majority that the state is entitled to its day in

court.
