[Cite as State v. Nicholson, 2013-Ohio-639.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellant,           :
                                                         CASE NO. 2012-P-0063
        - vs -                                  :

ZACHARY S. NICHOLSON,                           :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2012 TRC 05002.

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).

William D. Lentz, Sandvoss & Lentz, 228 West Main Street, P.O. Box 248, Ravenna,
OH 44266-0248 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}      Appellant, the state of Ohio, appeals the judgment of the Portage County

Municipal Court, Ravenna Division, granting the motion to suppress of appellee,

Zachary S. Nicholson, to exclude evidence of the result of an Intoxilyzer 8000 test. At

issue is whether the trial court erred in requiring the state to present evidence of the

reliability of the Intoxilyzer 8000 as a predicate for the admission of the result of

Nicholson’s test. For the reasons that follow, we reverse and remand.
       {¶2}   On April 14, 2012, Nicholson was stopped by police for failing to have an

illuminated rear license plate while driving on Summit Street. Nicholson was arrested

for driving under the influence of alcohol. The result of his Intoxilyzer 8000 breath test

revealed Nicholson’s blood-alcohol concentration was .111, which is over the legal limit.

As a result, he was cited for driving under the influence, in violation of R.C.

4511.19(A)(1)(a), and driving with a prohibited blood-alcohol concentration, in violation

of R.C. 4511.19(A)(1)(d). He was also cited for not having an illuminated rear license

plate, in violation of R.C. 4513.05. Nicholson pled not guilty.

       {¶3}   On May 29, 2012, Nicholson filed a motion to suppress and/or motion in

limine to exclude the result of his breath test. On the same date, he filed a separate

motion in limine requesting the state be required to present evidence regarding the

reliability of breath-test results obtained by the Intoxilyzer 8000.

       {¶4}   In response, the state filed a brief arguing that, pursuant to State v. Vega,

12 Ohio St.3d 185 (1984), the state was not required to present evidence to establish

the general reliability of the Intoxilyzer 8000 prior to the state’s introduction of the

machine’s breath-test result.

       {¶5}   By its judgment, dated June 20, 2012, the trial court granted Nicholson’s

motion to suppress. The court found that, pursuant to its previous ruling in State v.

Johnson, Case No. R 11 TRC 4090, the state was required to produce evidence to

convince the court that the test result from the Intoxilyzer 8000 is reliable and thus

admissible at trial. The court found that because the state has taken the position that

no expert testimony is required at the motion hearing, Nicholson has been denied the

opportunity to challenge the evidence of his guilt in violation of his due process rights.

As a result, the court ordered that the result of Nicholson’s breath test from the

                                              2
Intoxilyzer 8000 is not admissible at his trial. The court stated it would set the remaining

charges under R.C. 4511.19(A)(1)(a) and R.C. 4513.05 for trial.

       {¶6}   The state filed a motion to stay the court’s judgment pending appeal,

which the trial court granted.       The state now appeals the trial court’s ruling on

Nicholson’s motion to suppress, asserting one assignment of error.            For its sole

assigned error, the state alleges:

       {¶7}   “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.”

       {¶8}   As a preliminary matter, the state argues that, while Nicholson referred to

his motions at least in part as a motion in limine, a ruling on which is generally not a

final, appealable order, in effect his motion was a motion to suppress evidence, and the

court’s ruling granting same was a final order. In contrast, Nicholson argues that the

court’s ruling on his motion to suppress was essentially a ruling on a motion in limine.

Thus, he argues the court’s ruling was merely a preliminary evidentiary ruling and not a

final order. This court in State v. Davis, 11th Dist. No. 2008-L-021, 2008-Ohio-6991,

stated:

       {¶9}   The Supreme Court of Ohio has explained that “any 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

              order is a final order and may be appealed pursuant to R.C.

                                             3
              2945.67 and Crim.R. 12(J) [since renumbered as Crim.R. 12(K)].”

              Id. at ¶22, quoting State v. Davidson, 17 Ohio St.3d 132 (1985),

              syllabus.

       {¶10} Here, the trial court’s judgment granting Nicholson’s motion to suppress

restricted the state in the presentation of Nicholson’s breath-test result, and, thereby,

rendered the state’s proof with respect to the per-se OVI charge so weak in its entirety

that any reasonable possibility of effective prosecution had been destroyed. As a result,

the court’s ruling granting Nicholson’s motion to suppress is a final, appealable order.

       {¶11} Turning now to the merits of the state’s appeal, “[a]ppellate review of a

motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, ¶8. The appellate court must accept the trial court's

factual findings, provided they are supported by competent, credible evidence. Id.

Thereafter, the appellate court must determine, without deference to the trial court,

whether the applicable legal standard has been met. Id. Thus, we review the trial court’s

application of the law to the facts de novo. State v. Holnapy, 194 Ohio App.3d 444,

2011-Ohio-2995, ¶28 (11th Dist.). Here, no evidence was presented. Instead, the court

applied the law without making any factual findings. Thus, the court’s ruling was made

as a matter of law, which we review de novo. Id.

       {¶12} The state argues that it was not required to present expert testimony to

demonstrate the general scientific reliability of the Intoxilyzer 8000 before introducing

the result of Nicholson’s breath test at trial.    In support, the state argues that the

legislature delegated this determination to the director of health and that the Supreme

Court of Ohio in Vega, supra, upheld this delegation of authority.




                                            4
      {¶13} “R.C. 3701.143 authorizes the Director of Health to determine suitable

methods for breath alcohol analysis.” Vega, supra, at 187. That section provides:

      {¶14} For purposes of section[ ] * * * 4511.19 * * * of the Revised Code,

             the director of health shall determine * * * techniques or methods

             for chemically analyzing a person’s * * * breath * * * in order to

             ascertain the amount of alcohol * * * in [his] breath * * *. The

             director shall approve satisfactory techniques or methods * * *.

             (Emphasis added.)

      {¶15} Further, R.C. 4511.19(D)(1)(b) provides:

      {¶16} In any criminal prosecution * * * for a violation of * * * this section * *

             *, the court may admit evidence on the concentration of alcohol * * *

             in the defendant's * * * breath * * * at the time of the alleged

             violation as shown by chemical analysis of the substance

             withdrawn * * *. * * *

      {¶17} The bodily substance withdrawn under division (D)(1)(b) of this

             section shall be analyzed in accordance with methods approved by

             the director of health. (Emphasis added.)

      {¶18} Pursuant to R.C. 3701.143, the director of health promulgated Ohio

Adm.Code 3701-53-02(A), which provides that (1) the BAC DataMaster, the BAC

DataMaster K, the BAC DataMaster cdm; (2) the Intoxilyzer 5000 series 66, 68, and 68

EN; and (3) the Intoxilyzer 8000 (OH-5) are approved as evidential breath-testing

instruments for use in determining whether a person’s breath contains a concentration

of alcohol prohibited by R.C. 4511.19.




                                             5
       {¶19} Thus, the General Assembly gave the director of health the authority to

choose breath-testing instruments, and, pursuant to Ohio Adm.Code 3701-53-02, the

director approved the Intoxilyzer 8000 as a breath-testing instrument.

       {¶20} “Administrative rules enacted pursuant to a specific grant of legislative

authority are to be given the force and effect of law.” Doyle v. Ohio Bureau of Motor

Vehicles, 51 Ohio St.3d 46 (1990), paragraph one of the syllabus. Further, “the Director

of Health is delegated the authority to adopt regulations for the use of [breath-testing]

instruments. Once promulgated, these regulations are to be given the force and effect of

law. State v. Yoder, 66 Ohio St.3d 515, 519 (1993) (Wright, J., dissenting), citing Doyle,

supra. Thus, Ohio Adm.Code 3701-53-02, which approved the Intoxilyzer 8000 as an

evidential breath-testing instrument, has the force and effect of law.

       {¶21} In Vega, supra, the defendant argued that he should not be bound by the

health director’s determination that the intoxilyzer is generally a reliable breath-testing

instrument.   The Supreme Court stated that in making this argument, Vega had

misconstrued the impact of R.C. 4511.19. Id. at 188. The Supreme Court stated that

R.C. 4511.19 represented a legislative determination that breath-testing devices

adopted by the Director of the Ohio Department of Health are generally reliable. Id.,

citing McCormick, Evidence (2 Ed.Cleary Ed.1972), 511, 513. The court further stated

that, “[i]n Ohio, the General Assembly has legislatively provided for the admission of

various alcohol determinative tests in R.C. 4511.19.” (Emphasis added.) Vega at 186-

187. Thus, the Supreme Court of Ohio stated that the judiciary must recognize the

legislative determination that breath tests, properly conducted, are reliable irrespective

that not all experts agree. Vega at 188. The court stated that the judiciary must also

recognize that R.C. 4511.19 has replaced the common law foundational requirements

                                             6
for admissibility. Id. at 188-189. The Supreme Court also stated the judiciary must

recognize that, in enacting R.C. 4511.19, the legislature delegated to the director of

health, not the courts, “the discretionary authority” to determine which breath testing

devices are reliable. Id. at 189.

        {¶22} Thus, the Supreme Court of Ohio in Vega held that, “in light of R.C.

4511.19, an accused may not make a general attack upon the reliability * * * of a breath

testing instrument.” Id. at 190. The Supreme Court further held that 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 intoxilyers in general.” Id. at 186.

        {¶23} Further, the Supreme Court in Vega stated: “There is no question that the

accused may * * * attack the reliability of the specific testing procedure and the

qualifications of the operator. * * * Defense expert testimony as to testing procedures at

trial going to weight rather than admissibility is allowed.” Id. at 189. (Emphasis added.)

        {¶24} The Supreme Court reaffirmed its holding in Vega in State v. Tanner, 15

Ohio St.3d 1 (1984), and applied it to per-se OVI violations. The court in Tanner held:

“[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.” (Emphasis added.) Id.

at 6.

        {¶25} In the years following Vega, supra, the Supreme Court of Ohio reaffirmed

its teaching. For example, in 1993, the Supreme Court in Yoder, supra, stated: “The

Director of Health, not the court, was delegated the discretionary authority for adoption




                                               7
of breath testing devices and the procedures for their use. Id. at 518, citing Vega,

supra.

         {¶26} Moreover, Ohio Appellate Districts have addressed the specific issue

raised by Nicholson, i.e., whether the state is required to present expert testimony

regarding the reliability of breath-testing instruments before their results are admissible.

In Dayton v. Futrell, 2d Dist. No. CA 8615, 1984 Ohio App. LEXIS 11631 (Oct. 26,

1984), the Second District answered this question in the negative, stating:

         {¶27} The [Supreme Court in Vega] held that the reliability and

               admissibility of [breath] tests * * * has been legislatively determined

               and that the accused may not make a general attack upon the

               reliability and validity of the breath testing instrument. The judiciary

               must take notice that such tests, properly conducted, are reliable

               irrespective of disagreements among experts and that the results of

               such tests are admissible. Accordingly, judicial notice of this factor

               dispenses with the necessity for expert testimony by the state in

               chief for the efficiency of the intoxilyzer machine. Id. at *3-*4.

               (Emphasis added.)

         {¶28} More recently, in State v. Luke, 10th Dist. No. 05AP-371, 2006-Ohio-2306,

the defendant filed a motion to suppress the results of his BAC Datamaster breath test.

In its entry granting the defendant’s motion to suppress, the trial court explained that it

was suppressing the test results “pursuant to the court's ‘gatekeeper’ function, pursuant

to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).” In holding that

the trial court erred in applying Daubert in the context of the defendant’s motion to

suppress, the Tenth District stated:

                                              8
       {¶29} * * * [T]he General Assembly has legislatively provided for the

              admission into evidence of alcohol test results, including breath

              tests, from tests conducted upon those accused of violating R.C.

              4511.19, so long as such tests were conducted in accordance with

              procedures adopted by the Director of the Ohio Department of

              Health.

       {¶30} This 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. It follows, then, that because the Daubert inquiry involves

              only determinations as to the reliability of the principles and methods

              upon which a particular scientific test result is based, the legislative

              mandate recognized in Vega forestalls the need for any Daubert

              analysis in cases such as the present one. That is why we agree

              with the holding of the Fifth Appellate District that, pursuant to Vega,

              “an attack on the accuracy and credibility of breath test devices in

              general is prohibited. Therefore, there is no need to determine the

              reliability of the machine under a Daubert * * * standard.” State v.

              Birkhold, 5th Dist. No. 01CA104, 2002-Ohio-2464, ¶19.             Luke,

              supra, at ¶23-24. (Emphasis added.)

       {¶31} Nicholson argues the state was required to establish by expert testimony

the reliability of the Intoxilyzer 8000 before his test result could be admitted at trial. In

contrast, the state argues that it was not required to present evidence of the machine’s

reliability due to the legislative determination in R.C. 4511.19 that breath-testing

                                             9
instruments approved by the Ohio Department of Health, including the Intoxilyzer 8000,

are reliable.

       {¶32} As noted above, the court in Vega prohibited a “general attack on the

reliability * * * of a breath instrument.” (Emphasis added.) This holding thus allows for a

specific challenge to the reliability of the Intoxilyzer 8000. Here, Nicholson essentially

alleged in his motion in limine that this device is generally unreliable. He thus did not

present a specific challenge to the Intoxilyzer 8000, but rather, made a general attack.

       {¶33} Further, a motion to suppress must state its legal and factual bases with

sufficient particularity to put the prosecutor and the trial court on notice of the issues to

be decided. State v. Perl, 11th Dist. No. 2006-L-082, 2006-Ohio-6100, ¶15. In State v.

Shindler, 70 Ohio St.3d 54 (1994), syllabus, the Supreme Court of Ohio held that the

defendant’s motion to suppress was sufficient when it “stated with particularity the

statutes, regulations and constitutional amendments she alleged were violated, set forth

some underlying factual basis to warrant a hearing, and gave the prosecutor and court

sufficient notice of the basis of her challenge.” Here, Nicholson’s motion to suppress

and motion in limine provided no legal or factual grounds in support. Thus, the state

had no notice of any alleged specific defects of the Intoxilyzer 8000, making it virtually

impossible for the prosecutor to defend the motions.

       {¶34}    Since the General Assembly has legislatively determined that the

Intoxilyzer 8000 is reliable, it must be presumed this device is reliable. The Supreme

Court of Ohio in Yoder, supra, acknowledged that director-approved breath-testing

instruments, such as the Intoxilyzer 8000, are presumed to be reliable. The court in

Yoder stated: “We cannot undercut the department’s rulemaking authority * * *. The

Director of Health, not the court, was delegated the discretionary authority for adoption

                                             10
of breath testing devices * * *. Vega, [supra, at] 189. * * * [I]n promulgating this

regulation, it must be presumed that the Director of Health acted upon adequate

investigation * * *. We must defer to the department’s authority and we may not

substitute our judgment for that of the Director of Health.” (Emphasis added.) Yoder,

supra, at 518. As a result, the state did not have the burden to produce evidence of the

machine’s reliability as a predicate for presenting Nicholson’s breath-test results. To the

contrary, because the instrument is presumed reliable, Nicholson had the burden to

produce evidence that the Intoxilyzer is not reliable. This he failed to do.

         {¶35} Moreover, Nicholson argues that the state was required to comply with

Daubert, supra, and establish by expert testimony the reliability of the Intoxilyzer 8000

before his test result could be admitted at trial. However, in light of the Second District’s

holding in Dayton, supra, and the Tenth District’s holding in Luke, supra, we do not

agree.

         {¶36} As noted above, with respect to a judgment granting a motion to suppress,

an appellate court reviews a court’s application of the law de novo. See e.g. State v.

Holnapy, supra, at ¶28.     By requiring the state to go forward with evidence of the

machine’s reliability, the trial court disregarded the legal prohibition on general,

unparticularized challenges in motions to suppress, as well as the legislative

presumption of reliability concerning the Intoxilyzer 8000.        The trial court therefore

erred, as a matter of law, in requiring the state to make this initial showing.

         {¶37} We thus conclude the trial court erred in requiring the state to produce

evidence of the Intoxilyzer 8000’s reliability and in granting Nicholson’s motion to

suppress; further, pursuant to these erroneous rulings, the trial court erred in excluding




                                             11
the results of Nicholson’s breath test with no evidence to overcome the presumptive

reliability of the Intoxilyzer 8000’s results.

       {¶38} In light of Vega, as well as the validity of the legislative presumption, once

the prosecution has demonstrated an approved breath-testing device was used, a

defendant may make specific challenges to the reliability of his or her breath-test

results. In this case, it is undisputed that the Intoxilyzer 8000 is an approved device.

On remand, therefore, Nicholson is entitled, but has the burden of production, to

specifically challenge the results of his breath test.

       {¶39} 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,

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

                                      _______________


DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.


       {¶40} I concur in the essential judgment of this court: the Intoxilyzer 8000 “must

be presumed * * * reliable”; “the state did not have the burden to produce evidence of

the machine’s reliability as a predicate for presenting [appellee’s] breath test results”;

the appellee may make “a specific challenge to the reliability of the Intoxilyzer 8000,” but

bears “the burden of production, to specifically challenge the result of his breath test.”




                                                 12
      {¶41} I take exception with the majority’s assertion that Nicholson “did not

present a specific challenge to the Intoxilyzer 8000, but rather, made a general attack.”

The converse would be more accurate: Nicholson presented a specific challenge to the

Intoxilyzer 8000, but did not make a general attack.

      {¶42} Nicholson’s Motion to Suppress and/or Motion in Limine sought the

suppression of his breath test results on the grounds that the “instrument(s) employed

to analyze defendant’s breath * * * were not in proper working order, and/or the operator

of said instrument(s) did not have the necessary qualifications to operate it, and/or said

analysis was not performed according to the regulations set forth by the State

Department of Health.” More specifically, “[t]he breath testing machine was incorrectly

calibrated per O.A.C. Sec. 3701-53-04. State v. F[a]rris, (1989), 62 Ohio App. 3d 189.”

Contrary to the municipal court’s Journal Entry, nowhere in the Motion is it alleged that

the Intoxilyzer 8000 is generally unreliable or that the State bore the burden

demonstrating its scientific reliability pursuant to State v. Johnson, Portage County

Municipal Court Case R 11 TRC 4090, unreported.

      {¶43} In a pretrial motion to suppress evidence, the movant bears the burden of

“stat[ing] with particularity the grounds upon which it is made.” Crim.R. 47. This burden

is distinct from the burden to produce evidence, which the majority places upon

defendants when challenging the reliability of the machine, and which the State typically

bears in a pre-trial motion to suppress. State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 24 (“[a]fter a defendant challenges the validity of test

results in a pretrial motion, the state has the burden to show that the test was

administered in substantial compliance with the regulations prescribed by the Director of

Health”). The majority’s decision creates a potentially confusing situation where the

                                           13
parties will have to determine who bears the burden of production on which issues,

depending on how the arguments are characterized.

       {¶44} In State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), the Ohio

Supreme Court envisioned the criminal trial as the appropriate forum for the defendant

to introduce expert testimony challenging the results of his or her breath test results with

such testimony going to the weight rather than the admissibility of the evidence. Id. at

189. At trial, such testimony could be presented to impeach the State’s witnesses or as

part of the defense case. State v. Mongeau, 3rd Dist. No. 13-12-21, 2012-Ohio-5230, ¶

23 (“[a]t trial, defense expert testimony is permissible if the testimony addresses weight

rather than admissibility”).     This does not foreclose a defendant, however, from

presenting challenges to the Intoxilyzer at a suppression hearing, in the form of either a

specific challenge to the machine’s reliability or to the individual’s test results.

       {¶45} With these reservations, I concur in the opinion of this court.

                                     _______________


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


       {¶46} 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.

       {¶47} 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

                                              14
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.

       {¶48} 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,

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.)

       {¶49} 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).

       {¶50} 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

                                             15
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).

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

the defendant’s substantive due process rights.

       {¶52} “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).

       {¶53} 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).

       {¶54} 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

                                            16
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.

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

(8 Ed.Rev.2004) 11.

       {¶55} 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.

       {¶56} 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.

       {¶57} 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

                                             17
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.

       {¶58} 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

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.

       {¶59} 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).

       {¶60} 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

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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).

       {¶61} 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.

       {¶62} 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.




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       {¶63} 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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