[Cite as State v. Titmas, 2014-Ohio-66.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellant,           :
                                                       CASE NOS. 2012-P-0148
        - vs -                                  :            and 2012-P-0149

JAKE R. TITMAS,                                 :

                 Defendant-Appellee.            :


Criminal Appeals from the Portage County Municipal Court, Ravenna Division, Case
Nos. R2012 TRC 04381 and R2012 CRB 00909.

Judgment: Reversed and Remanded.


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

Peter T. Cahoon and Joshua D. Nolan, Buckingham, Doolittle & Burroughs, L.L.P.,
3800 Embassy Parkway, Suite 300, Akron, OH 44333 (For Defendant-Appellee).



COLLEEN MARY O’TOOLE, J.

        {¶1}     The State of Ohio appeals from the November 6, 2012 judgment entry of

the Portage County Municipal Court, Ravenna Division, granting Jake R. Titmas’ motion

to suppress and in limine in a drunken driving case. The motion was directed against

the admissibility of breath test results from the Intoxilyzer 8000.   We reverse and

remand.
          {¶2}   In the early hours of April 6, 2012, Mr. Titmas was stopped on State Route

59 by Ohio State Highway Patrol Officer Lamm for speeding. Eventually, the officer

issued Mr. Titmas a ticket for operating his vehicle under the influence of alcohol, a

misdemeanor of the first degree, in violation of R.C. 4511.19(B)(3), speeding, a minor

misdemeanor, in violation of R.C. 4511.21, and failure to wear a seatbelt, a violation of

R.C. 4513.263. A breath test done with the Intoxilyzer 8000 indicated he had a blood

alcohol concentration of .065. Mr. Titmas pleaded not guilty to all charges.

          {¶3}   September 25, 2012, Mr. Titmas moved to suppress and in limine, raising

the issue of whether the Intoxilyzer 8000 provides scientifically reliable results. Hearing

was held November 6, 2012. The state declined to present any evidence that the

Intoxilyzer 8000 is reliable; and, pursuant to its prior decision in State v. Johnson,

Portage County M.C. No. R 2011 TRC 4090 (Jan. 6, 2012), rev’d, 11th Dist. Portage

No. 2012-P-0008, 2013-Ohio-440,1 the trial court granted the motion to suppress and in

limine.     November 7, 2012, the state certified that, without the results from the

Intoxilyzer 8000 test, its case was too weak to proceed.                             Crim.R. 12(K); R.C.

2945.67(A). That same day, the state noticed appeal. November 9, 2012, the trial court

stayed execution of its judgment pending the outcome of this appeal.

          {¶4}   Initially, we must consider whether the judgment entry appealed is final,

and thus within this court’s jurisdiction. Motions to suppress are final and appealable;

motions in limine are preliminary and interlocutory. In this case, a combined motion was

filed with the trial court, and the trial court’s judgment entry appears to grant the motion

on proper grounds for suppression, as well as for limiting evidence. In the recent case



1. The opinion of this court reversing the trial court was filed February 8, 2013.


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of State v. Pizzino, 11th Dist. Portage Nos. 2012-P-0079 and 2012-P-0080, ¶10-12, this

court held:

       {¶5}      “‘The purpose and effect of a motion to suppress and a motion in limine

are distinct.’    State v. French, 72 Ohio St.3d 446, 449, * * * (1995). A ‘motion to

suppress’ is a ‘(d)evice used to eliminate from the trial of a criminal case evidence

which has been secured illegally, generally in violation’ of a constitutional right. Id.,

citing Black’s Law Dictionary (6 Ed.1990) 1014.           ‘(T)he ruling of the court at the

suppression hearing prevails at trial and is, therefore, automatically appealable by the

state.’ Id., citing R.C. 2945.67(A) and (former) Crim.R. 12(J).

       {¶6}      “In contrast, a ‘motion in limine’ is a motion ‘which is usually made before

or after the beginning of a jury trial for a protective order against prejudicial questions

and statements (* * *) to avoid injection into trial of matters which are irrelevant,

inadmissible and prejudicial.’ (Citation omitted.) State v. Grubb, 28 Ohio St.3d 199,

200, * * * (1986). In ruling on a motion in limine, ‘the trial court is at liberty to change its

ruling on the disputed evidence in its actual context at trial. Finality does not attach

when the motion is granted.’ (Citation omitted.) Defiance v. Kretz, 60 Ohio St.3d 1, 4, *

* * (1991).

       {¶7}      “The Ohio Supreme Court has held that ‘(a)ny motion, however labeled,

which, if granted, restricts the state in the presentation of certain evidence and, thereby,

renders the state’s proof with respect to the pending charge so weak in its entirety that

any reasonable possibility of effective prosecution has been destroyed, is, in effect, a

motion to suppress. The granting of such a motion is a final order and may be appealed

pursuant to R.C. 2945.67 and Crim. R.12(J) (now (K)).’ State v. Davidson, 17 Ohio




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St.3d 132, * * * (1985), syllabus. Accordingly, ‘(a) pretrial challenge to a breathalyzer

test, if granted, destroys the state’s case under (former) R.C. 4511.19(A)(3) (prohibited

breath alcohol concentration), and the state is permitted to appeal pursuant to R.C.

2945.67 and Crim. R. 12((K)(2)).’ Defiance at 4.” (Parallel citations omitted.)

       {¶8}   A similar analysis applies to this case. The judgment of the trial court is

final and appealable. The state assigns a single error:

       {¶9}   “The Portage County Municipal Court erred as a matter of law by

permitting a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to

Ohio statutes and well-established case law.”

       {¶10} Mr. Titmas presents two cross assignments of error. They read:

       {¶11} “[1.] Even if this Court were to decided (sic) that the trial court erred in

granting Titmas’ motion to suppress because the State did not submit any evidence of

the general reliability of the Intoxilyzer 8000, Titmas’ motion properly raised specific

challenges to the testing procedures and to the specific test results, placing the burden

on the State to produce evidence of substantial compliance. And the State’s failure to

present any rebuttal evidence required the trial court to exclude Titmas’ test results.

       {¶12} “[2.] The trial court properly required the State to produce evidence of the

Intoxlyzer 8000 (sic) reliability to respond to Titmas’ motion in limine and to suppress.

The court’s gatekeeper functions are not limited by Vega, applicable statutes and

regulations regarding the Intoxilyzer 8000.”




                                               4
         {¶13} Our en banc decision in State v. Bergman, 11th Dist. Portage No. 2012-P-

0124, 2013-Ohio-3073 is binding precedent on the state’s assignment of error, and Mr.

Titmas’ second cross assignment of error.2 In the divided opinion issued July 15, 2013,

this court affirmed the decision of the trial court refusing to admit the results of a test

administered via the Intoxilyzer 8000 without evidence from the state regarding the

machine’s reliability, as violating the substantive due process rights of the defendant.

Id. at ¶38. On July 18, 2013, a majority of this court decided, sua sponte, to convene en

banc to resolve the intradistrict conflict existing between the opinion and judgment in

Bergman, and other decisions of this court.             Pursuant to the en banc decision in

Bergman, the state’s assignment of error has merit, and the second cross assignment

of error lacks merit.

         {¶14} By his motion in the trial court, Mr. Titmas raised detailed and specific

objections to the particular procedures and test results in his case. The trial court did

not reach these issues in rendering judgment. Consequently, on remand, the trial court

must hold further hearing to determine the validity of these objections, and allow the

state to respond. State v. Hobson, 11th Dist. Portage No. 2012-P-0110, 2013-Ohio-

740, ¶14-17. To this extent, therefore, Mr. Titmas’ first cross assignment of error has

merit.




2. This writer personally adheres to her dissent in the en banc decision.


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      {¶15} In accordance with the foregoing, the judgment of the Portage County

Municipal Court, Ravenna Division, is reversed, and this matter is remanded for further

proceedings consistent with this opinion.       It is the further order of this court that

appellant and appellee are assessed equally costs herein taxed. The court finds there

were reasonable grounds for this appeal.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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