[Cite as State v. Hobson, 2013-Ohio-740.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellant,          :
                                                        CASE NO. 2012-P-0110
        - vs -                                 :

JOHN L. HOBSON,                                :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2012 TRC 03700.

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).

Joseph C. Patituce, Megan M. Patituce, and Catherine Meehan, 26777 Lorain Road,
Suite 708, North Olmstead, OH 44070 (For Defendant-Appellee).


DIANE V. GRENDELL, J.

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

Portage County Municipal Court, Ravenna Division, granting defendant-appellee, John

L. Hobson’s, Motion to Suppress. The issue to be decided in this case is whether a trial

court, in the performance of its role as gatekeeper, may require the State to

demonstrate the general scientific 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 reverse and remand the

decision of the court below.

      {¶2}   On March 24, 2012, Hobson was issued a traffic ticket, charging him with

Operating a Vehicle While Under the Influence (OVI), a misdemeanor of the first

degree, in violation of R.C. 4511.19(A)(1)(a); OVI, a misdemeanor of the first degree, in

violation of R.C. 4511.19(A)(1)(d); and failure to dim his headlights, a minor

misdemeanor, in violation of R.C. 4513.15.

      {¶3}   On July 13, 2012, Hobson filed a Motion to Suppress, challenging, inter

alia, the results of a breath test taken by Hobson at the time of the citation. He asserted

that the breath test was not conducted in accordance with Ohio Adm.Code 3701-53-04,

which requires that a dry gas control test is taken before and after breath tests, and that

the breath sample was not analyzed in accordance with the operational checklist for the

instrument. He also argued that the State was required to demonstrate that the specific

Intoxilyzer 8000 machine used in this matter was scientifically reliable, pursuant to

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993). He noted that the specific Intoxilyzer machine used to perform his

breath test did not operate in a manner consistent with the Ohio Administrative Code.

      {¶4}   The State filed a response to the Motion to Suppress and a “Brief

Regarding Intoxilyzer 8000 Hearing” on August 29, 2012. In that Brief, the State argued

that it need not present evidence to establish the general reliability of the Intoxilyzer

8000, citing State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984).




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       {¶5}   A hearing on the Motion to Suppress was set for August 29, 2012.

Pursuant to the affidavit of the court reporter, the proceedings in that matter were not

recorded and no transcript could be prepared.

       {¶6}   In an August 30, 2012 Journal Entry, the trial court granted Hobson’s

Motion to Suppress with respect to the results of the Intoxilyzer 8000. The court noted

that it “limits its review of Defendant’s Motion to Suppress solely to the admissibility of a

BAC test from the Intoxilyzer 8000.” It found that the issue in the present matter was

“identical” to the one in State v. Johnson. In Johnson, the trial court held that the State

was required to present evidence at a hearing for the trial court to determine the general

scientific reliability and admissibility of the breath test results of the Intoxilyzer 8000. In

the present matter, the court held that “the rationale and findings in Johnson are

likewise applicable to this case.” It held that the “breath test results from the Intoxilyzer

8000 are not admissible at the trial of Defendant” and that “[t]he remaining charges

alleging a violation of ORC 4511.19(A)(1)(a) and 4513.15 shall be set for trial on the

Court’s docket.”

       {¶7}   On September 6, 2012, the State filed a Motion to Stay the Execution of

Judgment, which was granted by the court on September 7, 2012.

       {¶8}   The State timely appeals and raises the following assignment of error:

       {¶9}   “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.”

       {¶10} The appropriate standard of review where the lower court’s judgment is

challenged on a purported misconstruction of the law is de novo. State v. Morris, 132




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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.

       {¶11} In its sole assignment of error, the State argues that, pursuant to the

provisions of R.C. 3701.143 and Ohio Adm. Code 3701-53-02(A), a trial court is

required to accept the Intoxilyzer 8000 as an appropriate device for chemically

analyzing a person’s breath to determine the amount of alcohol in the breath. It further

argues that pursuant to State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), a

defendant may not attack the general reliability of a breath testing instrument and that

the State is not required to present evidence to support a determination that the test is

generally reliable.

       {¶12} This court has recently addressed the exact issue raised by the State

regarding the general reliability of the Intoxilyzer 8000 and determined that, pursuant to

Vega, a defendant may not make “a general attack upon the reliability and validity of the

breath testing instrument,” although breath test results are subject to challenge on a

variety of grounds, including specific attacks on the reliability of the test and attacks on

the performance of the test in a specific defendant’s case. State v. Miller, 11th Dist. No.

2012-P-0032, 2012-Ohio-5585, ¶ 30-32; State v. Carter, 11th Dist. No. 2012-P-0027,

2012-Ohio-5583, ¶ 25 and 35; State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-

5584, ¶ 24 and 32.

       {¶13} As was discussed in the foregoing cases, the lead Ohio Supreme Court

case on this issue is Vega, 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




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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.

In Vega, the Ohio Supreme Court made clear that “an accused may not make a general

attack upon the reliability and validity of the breath testing instrument,” since the

General Assembly “ha[s] legislatively resolved the questions of the reliability and

relevancy of intoxilyzer tests.” Id. at 188 and 190.

       {¶14} While no general attack on reliability may be made, when duly challenged,

the State must demonstrate that the bodily substance was “analyzed in accordance with

methods approved by the director of health” and “by an individual possessing a valid

permit.” R.C. 4511.19(D)(1)(b). The Ohio Supreme Court has affirmed that “[t]here is

no question that the accused may * * * attack the reliability of the specific testing

procedure and the qualifications of the operator,” as well as present “expert testimony

as to testing procedures at trial going to weight rather than admissibility.” 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 challenge the general

accuracy of the legislatively determined test procedure as a valid scientific means of

determining blood alcohol levels.” State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d 689

(1984); State v. French, 72 Ohio St.3d 446, 451-452, 650 N.E.2d 887 (1995).

       {¶15} 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, as opposed to general

assertions that the State failed to prove its reliability, which is prohibited under Vega.

See Vega at 189.




                                             5
       {¶16} Hobson argues, however, that he did not raise general challenges to the

reliability, and thus is not disputing whether the State was required to present evidence

as to the general reliability of the Intoxilyzer 8000. He instead asserts that he raised

challenges related to the specific machine used to take his breath sample and that

these were proper issues to raise under Vega. In the present case, Hobson’s Motion to

Suppress challenged the breath test results of the Intoxilyzer 8000 on several grounds,

including that his breath test was not conducted in accordance with Ohio Adm. Code

3701-53-04, which requires that a dry gas control test is taken before and after breath

tests, and that the breath sample was not analyzed in accordance with the operational

checklist for the testing instrument.

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

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

suppress. The municipal court, however, granted Hobson’s Motion on the grounds that

the State failed to produce evidence of the Intoxilyzer 8000’s general scientific reliability.

In his appellate brief, Hobson contends the State’s failure to produce evidence in

response to any of his specific challenges to the admissibility of the breath test results is

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

present case, we disagree. Following the filing of the Motion to Suppress, the State

submitted a brief opposing the Motion on the grounds that the court is “obligated to

accept the general reliability of the Intoxilyzer 8000.” The court’s ruling appears to have

been limited to this issue. The municipal court specifically cited Johnson as its reason

for granting the Motion to Suppress, in which the court had previously concluded that

the State was required to present evidence at a hearing for the trial court to determine




                                              6
the general scientific reliability of the Intoxilyzer 8000. The court did not state that it

granted the Motion based on the State’s failure to address specific arguments related to

the breath test.   Accordingly, on remand, it will be necessary for the court to hold

another hearing to address the other issues raised in Hobson’s Motion to Suppress, at

which time the State will have the opportunity to respond to his specific arguments.

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

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

Court, Ravenna Division, granting Hobson’s Motion to Suppress, is reversed, and this

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

taxed against appellee.



TIMOTHY P. CANNON, P.J., concurs,

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



                               ______________________



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

       {¶20} 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.

       {¶21} 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




                                             7
approved devices without further proof of reliability when circumstances warrant.

Although some claim the contrary, nobody is correct all the time. In recognizing human

fallibility, the legislature had the wisdom to vest within the trial court the discretion per

R.C.4511.19(D)(1)(b) to conduct further inquiry when there is an issue as to the

reliability of an approved breath testing device before admitting the results.

       {¶22} 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.)

       {¶23} 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).




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       {¶24} In this case, the trial court exercised its discretion not to admit the breath

test absent proof from the state that the Intoxilyzer 8000 is generally reliable, a decision

consistent with the discretion it possesses under R.C.4511.19(D)(1)(b). As reliability

presents a threshold admissibility issue, reliability, as opposed to the weight to be

afforded any admitted evidence, is one for the trial court. Knott v Revolution Software

Inc. 181 Ohio App.3d 519, 2009-Ohio-1191, ¶45 (5th Dist.); State v. Riley, 6th Dist. No.

WD-03-076, 2007-Ohio-879, ¶27 (expert testimony must be deemed reliable before it is

deemed admissible.); Saad v. Shimano American Corp., 2000 U.S. Dist. LEXIS 10974,

*7 (N.D. Ill. 2000)(The Supreme Court has made it clear that the courts must allow into

evidence only expert testimony that meets certain threshold standards of reliability and

usefulness).

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

the defendant’s substantive due process rights.

       {¶26} “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).




                                             9
       {¶27} 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).

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

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

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

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

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

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

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

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

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

(8 Ed.Rev.2004) 11.

       {¶29} 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.

       {¶30} 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




                                             10
reasonable doubt where a trial judge does not permit expert testimony to attack the

reliability of intoxilyzers in general.” (Emphasis added.) Id. at 186.

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

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

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

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

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

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

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

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

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

those in our case.

       {¶32} 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 the defense asserts

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.

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

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




                                            11
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).

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

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

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

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

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

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

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

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

(10th Dist. 1988).

       {¶35} 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 the state 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




                                              12
order was unambiguous and an exercise of the sound discretion as the gatekeeper of

breath test result admissibility.

       {¶36} 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.

       {¶37} 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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