[Cite as State v. O'Neill, 2013-Ohio-2619.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellant,           :
                                                          CASE NO. 2012-P-0116
        - vs -                                  :

STEPHEN P. O’NEILL,                             :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 5539.

Judgment: Affirmed.


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).


DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals the judgment of the Portage

County Municipal Court, Ravenna Division, holding the breath test results of the

Intoxilyzer 8000 would not be admissible at trial in a prosecution for driving with a

prohibited breath alcohol concentration (OVI). The issue before this court is whether a

trial court, exercising its role as evidentiary gatekeeper, may pass judgment on the

general reliability 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 affirm the decision of the court below.

       {¶2}     On April 27, 2012, the Ohio State Highway Patrol issued defendant-

appellee, Stephen P. O’Neill, a traffic ticket, charging him 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), a Speed

violation,    a minor misdemeanor in violation of R.C. 4511.21(C), and a Safety Belt

violation, a minor misdemeanor in violation of R.C. 4513.263.

       {¶3}     On May 2, 2012, O’Neill entered a plea of not guilty.

       {¶4}     On September 12, 2012, O’Neill filed a Motion in Limine, seeking to

prevent the prosecution from introducing the “results of testing conducted upon the

Defendant using an Intoxilyzer 8000,” pursuant to Evidence Rules 104, 401, and 702.

O’Neill asserted: “To date there has been no documentation in this jurisdiction, via a

hearing on the merits or otherwise, that the Intoxilyzer 8000 device, used in this

particular instance, is accurate to a legal degree of certainty and scientifically reliable in

order to establish such a device as admissible evidence in a courtroom.” O’Neill further

asserted that the results were inadmissible due to the state trooper’s failure “to run * * *

a Dry Gas Control.”

       {¶5}     On September 13, 2012, the matter came before the municipal court for

trial. The court ruled that it was suppressing the results of the Intoxilyzer 8000, despite

the captioning of the motion as one in limine, based on its prior decisions in State v.

Johnson, Case No. R 2011 TRC 4090, and State v. Consolo, Case No. R. 2011 TRC

16608. The court granted the State a stay of execution pending appeal.




                                              2
       {¶6}   On September 17, 2012, the State filed its Notice of Appeal.

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

       {¶8}   “[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.”

       {¶9}   Where the lower court’s judgment is challenged on a purported

misconstruction of the law, the appropriate standard of review is de novo. State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16. “In determining a

pure question of law, an appellate court may properly substitute its judgment for that of

the trial court.” (Citation omitted.) Id.

       {¶10} This court has previously held that a defendant may not make a general

challenge to the scientific reliability of a breath testing device, where that device has

been approved by the Ohio director of health as an appropriate device for chemically

analyzing a person’s breath to ascertain the amount of alcohol therein, pursuant to

Sections 3701.143 and 4511.19(D)(1)(b) of the Ohio Revised Code, and Ohio

Administrative Code 3701-53-02(A)(3).       State v. Miller, 11th Dist. No. 2012-P-0032,

2012-Ohio-5585, ¶ 21-30; State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-

5584, ¶ 14-28.

       {¶11} O’Neill contends that a trial court retains discretion to refuse to admit

breath test results in its role as “gatekeeper” and under Ohio’s Rules of Evidence. The

prior decisions of the Ohio Supreme Court, this court, and other appellate districts

compel a different conclusion. Contrary to O’Neill’s position, the trial court’s discretion

to admit or exclude evidence is restricted to determining whether the breath test was




                                             3
conducted “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 court’s discretion

under R.C. 4511.19(D)(1)(b) does not permit it to exclude test results based on the

“scientific accuracy and reliability” of the breath testing device, as was done in the

present case.

       {¶12} The lead Ohio Supreme Court case on this issue is State v. Vega, 12 Ohio

St.3d 185, 465 N.E.2d 1303 (1984), in which the court addressed the issue of whether

the general reliability of intoxilyzers could be challenged “in view of the fact that the

General Assembly has legislatively provided for the admission of such tests in R.C.

4511.19 if analyzed in accordance with methods approved by the Director of Health.”

Id. at 186. The Supreme Court ruled that “an accused may not make a general attack

upon the reliability and validity of the breath testing instrument.” 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).

      {¶13} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in

Vega. The court has emphasized that, when regulations are promulgated pursuant to




                                            4
R.C. 4511.19 and 3107.143, “it must be presumed that the Director of Health acted

upon adequate investigation,” and that the courts “must defer to the department’s

authority and * * * not substitute our judgment for that of the Director of Health.” State v.

Yoder, 66 Ohio St.3d 515, 518, 613 N.E.2d 626 (1993).

       {¶14} The basic holding of Vega has been followed by other appellate districts.

See State v. Tenney, 2nd Dist. No. 24999, 2012-Ohio-3290, ¶ 5 (“R.C. 4511.19

provides that a breath-test result is admissible if the breath test was performed in

compliance with the procedures established by the state director of health.”); State v.

Fisher, 1st Dist. No. C-080497, 2009-Ohio-2258, ¶ 27 (“R.C. 4511.19 represents a

legislative determination that certain breath-testing devices are generally reliable,” and

“has replaced the common-law foundational requirements for admissibility”); State v.

Luke, 10th Dist. No. 05AP-371, 2006-Ohio-2306, ¶ 24 (the “legislative mandate for

admissibility obviates the need for trial courts to determine admissibility based upon

reliability of the processes and methods underlying the use of breath testing machines”).

       {¶15} O’Neill alternatively contends that the legislative mandate in R.C.

3701.143 and 4511.19(D)(1)(b) usurps the Ohio Supreme Court’s authority to

promulgate rules of evidence and violates the constitutional doctrine of separation of

powers.

       {¶16} “The supreme court shall prescribe rules governing practice and

procedure in all courts of the state * * *. All laws in conflict with such rules shall be of no

further force or effect after such rules have taken effect.” Ohio Constitution, Article IV,

Section 5(B).    Thus, “the Ohio Rules of Evidence, which were promulgated by the

Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must




                                              5
control over subsequently enacted inconsistent statutes purporting to govern evidentiary

matters.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451,

491, 715 N.E.2d 1062 (1999). “In order to demonstrate the legislature infringed upon

the judiciary’s power to enact evidentiary rules appellant must demonstrate the

legislation contradicts or is an attempt to supersede an existing evidentiary rule.” State

v. Boczar, 11th Dist. No. 2004-A-0063, 2005-Ohio-6910, ¶ 38. “When a statute does

not conflict with a Rule of Evidence, a statute can control the admissibility of evidence.”

State v. Cross, 11th Dist. No. 2004-L-208, 2006-Ohio-1679, ¶ 21.

      {¶17} The delegation of authority to the director of health to establish the

appropriate methods for determining the amount of alcohol in a defendant’s bodily

substances does not conflict with any Rule of Evidence. O’Neill refers to Evidence

Rules 104(A) and 702; but nothing in these Rules establishes the trial court as the sole

“gatekeeper” with respect to the general reliability of instruments measuring the

concentration of alcohol in a person’s bodily substances. On the contrary, Evidence

Rule 102 states that “[t]hese rules shall not supersede substantive statutory provisions.”

The Staff Notes elaborate further by stating, “[t]he Rules of Evidence * * * are not an

exhaustive compilation of the rules governing evidence questions, nor are the rules

preemptive as to subjects that they do not address.”

      {¶18} The Ohio Supreme Court, in State v. Mayl, 106 Ohio St.3d 207, 2005-

Ohio-4629, 833 N.E.2d 1216, expressly characterized R.C. 4511.19(D)(1) as a “three-

paragraph gate-keeping statute.” Id. at ¶ 20. Where R.C. 4511.19(D)(1) is satisfied, it

does “no[t] matter under which portion of R.C. 4511.19(A) a person is charged, the state

has the opportunity to offer the results of a ‘bodily substance’ test to show either




                                            6
impairment * * * or to show that the statutory concentrations of alcohol or drugs have

been exceeded.” Id. at ¶ 19.

        {¶19} It has also been observed that “the legislature has created standards for

the admissibility of evidence in many instances.” State v. Phipps, 3rd Dist. No. 2-03-39,

2004-Ohio-4400, ¶ 12.1

        {¶20} In a similar situation, the Ohio Supreme Court considered whether the

General Assembly’s authority statutorily provided for the admissibility of the results of

field sobriety tests based on substantial compliance, rather than the strict compliance

standard, based on common law, adopted by Ohio courts. The Supreme Court found

no encroachment “on the exclusive rule-making authority of the judiciary.” State v.

Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 22.                                    While

acknowledging that “[t]he trial judge is the guardian of the admissibility of evidence,” the

General Assembly, “through its deliberative process,” could conclude “that failure to

strictly comply with test procedures affects the evidentiary value of field sobriety tests

but that substantial compliance will not result in the tests’ exclusion,” i.e., “that the tests

are sufficiently reliable to be admissible by meeting a clear-and-convincing standard.”

Id.

        {¶21} Concerns about the reliability of the results in the absence of strict

compliance could be addressed by the defense on cross-examination. Id.




1. As examples, the Third District Court of Appeals noted: R.C. 2907.02(D) (limiting the admissibility of
evidence regarding a victim’s sexual activity in prosecutions for Rape); R.C. 4513.263(F) (limiting the
permissible uses of evidence regarding the use of occupant restraining devices); R.C. 2925.51(A)
(providing that laboratory reports constitute “prima-facie evidence of the content, identity, and weight” of
controlled substances); and R.C. 2317.47 (providing for blood-grouping tests to determine identity or
paternity).


                                                     7
       {¶22} Likewise in the present case, R.C. 3701.143 and R.C. 4511.19(D)(1) do

not preempt the trial court’s authority to rule on the admissibility of evidence, but rather

delegate the preliminary determination regarding the scientific reliability of testing

devices to the director of health. That determination is not conclusive as to the ultimate

admissibility of the test results. As noted above, the State must demonstrate that the

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

health.”      R.C. 4511.19(D)(1)(b).      The defendant may always challenge the

reliability/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, such as by impeaching the instrument’s general reliability. Vega,

12 Ohio St.3d at 189, 465 N.E.2d 1303; State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d

689 (1984).

       {¶23} Accordingly, we reaffirm our prior holding:

       {¶24} 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). Vega recognized 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.” Vega, 12 Ohio St.3d at

               189, 465 N.E.2d 1303. Thus, “[t]he defendant may still challenge

               the accuracy of his specific test results, although he may not




                                             8
             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.].

      {¶25} 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, as discussed above, 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 assertions that the State failed to prove its reliability,

             which is prohibited under Vega. See Vega at 189.

Miller, 2012-Ohio-5585, at ¶ 31-32.

      {¶26} The State’s sole assignment of error is with merit.

      {¶27} Although the municipal court erroneously suppressed the breath test

results of the Intoxilyzer 8000 based on a challenge to its general reliability, we affirm

the lower court’s decision. The municipal court identified, as an independent basis for

suppressing the test results, the purported failure of law enforcement to comply with the

directive of the Ohio director of health that the Intoxilyzer 8000 “shall automatically

perform a dry gas control test before and after every subject test.” Ohio Adm.Code

3701-53-04(B); R.C. 4511.19(D)(1)(b) (“[t]he bodily substance withdrawn under division




                                            9
(D)(1)(b) of this section shall be analyzed in accordance with methods approved by the

director of health”).

        {¶28} On appeal, the State has not challenged the municipal court’s judgment

with respect to the failure to perform the breath test in accordance with the director of

health’s directives. Accordingly, we affirm the municipal court’s judgment on that basis,

without expressing any opinion as to the merits of that determination.

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

Court, Ravenna Division, granting O’Neill’s Motion in Limine, is affirmed. Costs to be

taxed against the parties equally.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.



                                ______________________



COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.

        {¶30} I concur with the majority’s decision to affirm the trial court’s judgment with

respect to the failure to perform the breath test properly. However, I would also affirm

the trial court’s exercise of its discretion in excluding the results from the Intoxilyzer

8000.

        {¶31} 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




                                             10
Health for use in OVI cases must, automatically, be accepted into evidence, so long as

the operator is competent and the machine functional.

       {¶32} 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.

       {¶33} 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.

       {¶34} 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.

       {¶35} 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.




                                            11
       {¶36} 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:

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

Vega is no longer good law, when they stated:

       {¶38} “‘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 (* * *).’

       {¶39} “‘This presumption does not, contrary to appellee's arguments, change the

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

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

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

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

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

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

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




                                            12
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.’

       {¶40} “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.

       {¶41} 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, effectively, a conclusive result.

       {¶42} 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.

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

       {¶44} “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




                                                13
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.)

       {¶45} 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

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

stated in a series of penetrating dissents:

       {¶46} “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




                                              14
reliability of an approved breath testing device before admitting the results.”               State v.

Collazo, 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶38.2

       {¶47} 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.

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

       {¶49} “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

2. See also Johnson, 11th Dist. No. 2012-P-0008, 2103-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; 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.


                                                  15
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).

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

the defendant’s substantive due process rights.

       {¶51} “‘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-813, ¶11, * * * (10th Dist.),

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

       {¶52} “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, 103 S. * * *.” (Parallel citations

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

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

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

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




                                             16
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.

         {¶55} 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:

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

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

underestimates actual BAC 84% of the time; (b) the Intoxilyzer 8000 will round all breath

sample results below 0.010% down to 0.000%; (c) based on the alcohol consumption

described by plaintiff in his deposition, plaintiff’s BAC at the time of driving would be

between 0.019% and 0.023%, * * *.” Id. at *7-8.

         {¶57} 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




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

source code was apparently not deemed necessary.” Id.

       {¶58} “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).

       {¶59} 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.

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

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

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

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

such convictions be premised on proceedings and procedures which are constitutionally

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

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

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




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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.

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

in all respects. I concur in judgment only.




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