[Cite as State v. Johnson, 2013-Ohio-440.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellant,           :
                                                       CASE NO. 2012-P-0008
        - vs -                                  :

KYLE M. JOHNSON,                                :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2011 TRC 4090.

Judgment: Reversed and remanded.


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

J. Chris Sestak, Student Legal Services, Inc., Kent State University, 164 East Main
Street, Suite 203, Kent, OH 44240 (For Defendant-Appellee).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, the state of Ohio, pursuant to Crim.R. 12(K), appeals the

judgment of the Portage County Municipal Court, Ravenna Division, granting the motion

to suppress the results of the Intoxilyzer 8000 breath test of appellee, Kyle M. Johnson.

At issue is whether the state has the burden at a suppression hearing to establish the

general scientific reliability of the breath test machine absent any specific challenge to
the conduct of the subject test. Based on the foregoing, we reverse and remand this

matter to the trial court.

       {¶2}    Appellee was stopped by the Ohio State Highway Patrol for excessive

speed, in violation of R.C. 4511.21(C). The trooper noticed a strong odor of alcohol and

eventually administered a breath test utilizing the Intoxilyzer 8000. The result of the

breath test revealed that appellee’s blood alcohol concentration was .103. As a result,

appellee was cited for operating a vehicle under the influence of alcohol and driving with

a prohibited blood alcohol content, in violation of R.C. 4511.19(A)(1)(a) and

4511.19(A)(1)(d). Appellee pled not guilty to the charges.

       {¶3}    After appellee entered a not guilty plea, he filed a motion to

suppress/motion in limine arguing, inter alia, that “the admissibility of the breathalyzer

results is conditioned upon the state’s proof that the device is scientifically acceptable

and accurate.”

       {¶4}    At the hearing on appellee’s motion, the transcript reflects that appellee

chose to first challenge the general reliability of the Intoxilyzer 8000.         The state

indicated it had a witness available to testify as to the specific details of appellee’s

breath test; however, appellee argued that prior to presenting the breath test results, the

state was required to present evidence that the Intoxilyzer 8000 was scientifically

reliable. The state disagreed, arguing it was not required to introduce expert testimony

regarding the general scientific reliability of the Intoxilyzer 8000. After this hearing, the

trial court issued a judgment entry, stating, in part:

       {¶5}    The Court finds that the Assistant Prosecutor and Defense Attorney

               made oral arguments to the Court regarding the issue of the




                                              2
                scientific reliability of the Intoxilyzer 8000 and whether or not

                evidence needed to be presented to the Court to convince the

                Court the Intoxilyzer 8000 is scientifically reliable prior to Trial.

         {¶6}   The Court finds that the State of Ohio must convince the Court that

                the Intoxilyzer 8000 is scientifically reliable before the Court will

                allow the State of Ohio to introduce evidence as to any breath test

                results from the Intoxilyzer 8000 at Trial.

         {¶7}   The trial court, therefore, granted a 60-day continuance for the state to

present witnesses to “convince the Court of the scientific reliability of the Intoxilyzer

8000.”

         {¶8}   The parties then filed briefs regarding the admissibility of breath test

results from the Intoxilyzer 8000. At the subsequent hearing on the motion to suppress,

the trial court framed the sole issue of the hearing: “[W]hether or not the State has to

bring in some evidence from either the Department of Health or the manufacturer of the

Intoxilyzer 8000. This evidence to convince the court that this Intoxilyzer 8000 is * * *

generally scientifically reliable prior to trial.”

         {¶9}   At the hearing, it was the state’s position that, pursuant to the Supreme

Court of Ohio’s decision in State v. Vega, 12 Ohio St.3d 185 (1984), appellee could not

challenge the general scientific reliability of the Intoxilyzer 8000. The state conceded,

however, that appellee could challenge the accuracy of his specific breath test results.

Based on this position of the state, it did not present any witnesses.

         {¶10} Following the hearing, the trial court issued a judgment entry, stating, in

part:




                                                     3
      {¶11} The Court is the gatekeeper of the evidence and determines what

              relevant evidence, scientifically reliable evidence and admissible

              evidence at trial. To simply admit the breath test results from the

              Intoxilyzer 8000, as the State would want the Court to do, without

              any hearing to determine the general scientific reliability and

              admissibility of the breath test results from this machine, and then

              to argue that the defense cannot challenge the test results at trial

              pursuant to Vega is in this Court’s opinion a violation of the

              Defendant’s due process rights. The position the State of Ohio is

              taking in this case by not calling any witnesses at the Suppression

              Hearing is not fair and just.

      {¶12} Since the State of Ohio has decided not to produce any competent,

              relevant, credible evidence at the Hearing on the Motion to

              Suppress on December 13, 2011 after given adequate time to so

              do, the Court, therefore, grants Defendant’s Motion to Suppress

              and finds that the breath test results from the Intoxilyzer 8000 are

              not admissible at the trial of the Defendant.

      {¶13} The state timely appealed and presents a single assignment of error for

our review:

      {¶14} “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.”




                                              4
       {¶15} No evidence was presented at the suppression hearing. The trial court

made a legal determination that the state was required to produce evidence regarding

the reliability of the Intoxilyzer 8000. An appellate court reviews the trial court’s legal

determinations at a suppression hearing de novo. State v. Djisheff, 11th Dist. No. 2005-

T-0001, 2006-Ohio-6201, ¶19.

       {¶16} The state contends it is not required to produce expert witnesses to

convince the municipal court of the general scientific reliability of the Intoxilyzer 8000 as

a threshold matter before offering into evidence the breath tests results. The state

maintains the legislature has chosen to delegate this determination to the Ohio Director

of Health, and this delegation has been upheld by the Ohio Supreme Court in Vega.

Although the state argues a defendant cannot launch a general attack on the

breathalyzer machine, it concedes that a defendant may attack his specific breath test

results.

       {¶17} In response, appellee argues there is a requirement that scientific

evidence meet threshold standards of reliability before its admittance.            Appellee

maintains the trial court was required to make a threshold determination regarding the

admissibility of the scientific results produced by the Intoxilyzer 8000, and as the state

failed to present any evidence to satisfy this evidentiary threshold, the trial court

properly excluded appellee’s breath test results.

       {¶18} Preliminarily, we recognize the Ohio General Assembly has charged the

Director of Health to “determine, or cause to be determined, techniques or methods for

chemically analyzing a person’s * * * breath * * * in order to ascertain the amount of

alcohol * * * in the person’s * * * breath[.]” R.C. 3701.143. The General Assembly has




                                             5
addressed the admissibility of breath test results: breath samples must be analyzed for

alcohol content “in accordance with methods approved by the director pursuant to

section 3701.143 of the Revised Code.” R.C. 4511.19(D)(1). The Intoxilyzer 8000 has

been approved as an evidential breath testing instrument by the Ohio Director of Health.

OAC 3701-53-02(A)(3).

       {¶19} On appeal and at the suppression hearings, the state relies upon the Ohio

Supreme Court’s holding in Vega to support its argument that it does not have an

obligation to meet the threshold requirement to present evidence of the reliability of the

Intoxilyzer 8000 before the introduction of breath tests results.

       {¶20} In Vega, the issue before the Court was “whether an accused may use

expert testimony to attack the general reliability of intoxilyzers as valid, reliable breath

testing machines in view of the fact that the General Assembly has legislatively provided

for the admission of such tests in R.C. 4511.191 if analyzed in accordance with methods

approved by the Director of Health.” Vega, 12 Ohio St.3d at 186. In a 4-3 decision, 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.

       {¶21} The dissent in Vega disagreed with the majority’s analysis because, in its

view, the rule-making authority conferred by the legislature on the Director of Health



1. The defendant in Vega was charged under former R.C. 4511.19. That statute stated, in pertinent part:
“If there was at that time a concentration of fifteen hundredths of one per cent or more by weight of
alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of
alcohol.” In 1982, the prohibition of operating a motor vehicle under the influence of alcohol changed
from a “presumptive” offense to a “per se” offense.



                                                  6
encroached upon the judiciary’s inherent constitutional power to adjudicate questions of

evidential relevancy and admissibility. The dissent noted that, pursuant to Section 5(B),

Art. IV of the Ohio Constitution, the Ohio Supreme Court possesses plenary authority

over issues relating to the relevancy and admissibility of evidence, and the sole power

to rule on the admissibility of relevant evidence is committed to the judiciary via the Ohio

Constitution.    Because the constitution designates the trial judge as the exclusive

gatekeeper of all evidentiary questions, the dissent concluded that preventing relevant

expert testimony based only on a legislative or administrative presumption violates the

principle of separation of powers. Vega, 12 Ohio St.3d at 191. See, e.g., Evid.R.

104(A), which grants the courts the sole authority to decide questions of admissibility;

Evid.R. 401 and 402, which provide the trial court with the authority to control the flow of

evidence.

       {¶22} Since the pronouncement of the Vega decision, the Ohio Supreme Court

and federal courts have significantly revised the approach taken to the admission of

scientific testing and testimony. With regard to admission of expert testimony in 1983,

when Vega was decided, courts in Ohio were applying the rule set forth in Frye v.

United States, 293 F. 1013 (D.C. Cir.1923) and the Ohio Rules of Evidence, which were

adopted in 1981. Under the Frye procedure, the proposed expert was called to the

stand for the purpose of establishing his or her qualifications during a voir dire

examination.2      There was no predetermination concerning reliability of the expert

testimony.




2. See voir dire of Marisa Tomei in My Cousin Vinny, Dir. Jonathan Lynn, 20th Century Fox (1992).



                                                  7
       {¶23} However, the Frye rule, requiring that scientific testing and testimony be

based on standards “accepted in the scientific community,” has been abrogated. The

United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993) set forth new and much more definitive standards relating to the admissibility

of scientific evidence pursuant to Federal Rules of Evidence 401, 402, and 702. These

standards have been adopted by the Ohio Supreme Court in Miller v. Bike Athletic Co.,

80 Ohio St.3d 607 (1998).

       {¶24} The Daubert rule clearly establishes that, as noted by the trial court, it is

the obligation of the trial court to serve as the gatekeeper in determining and

establishing both the qualifications of the expert and the reliability of the testing or other

analysis used in arriving at the expert’s opinion.        The burden of establishing the

scientific reliability of the evidence rests with the proponent of the evidence.

       {¶25} Irrespective of its use of the outmoded “general acceptance” standard

announced in Frye, the majority opinion in Vega simply ruled that the presumption

established by the Department of Health did not violate an accused’s right to present a

defense or relieve the state of its burden of proof. This ruling was premised upon the

conclusion that the science behind connecting blood alcohol content (“BAC”) to physical

impairment was generally accepted. In the instant matter, the science of the impact of

alcohol on an individual in a particular BAC range is not an issue; indeed, no party

disputes the objective scientific underpinnings of BAC testing. Rather, the real issue in

this case is the reliability of this particular piece of equipment and the process by which

the preliminary range used to judge intoxication is established. This challenge would




                                              8
typically invoke the trial court’s constitutional power to evaluate the ultimate admissibility

of the scientific device being used to establish the “fact” of intoxication.

       {¶26} The state nevertheless contends that the responsibility to determine the

reliability and admissibility of the Intoxilyzer 8000 test results has been assigned to the

Director of the Ohio Department of Health by the Ohio Legislature.             The enabling

legislation authorizing the director to determine what equipment law enforcement may

utilize in the administration of breath tests is found in R.C. 3701.143. Nowhere in R.C.

3701.143 or the administrative code is there a reference to “reliability” or any other

objective standard that indicates what criteria was used in approving the selected breath

test instruments. There is also no delineated acceptable “margin of error” or other

information that indicates what measure was used by the director in determining the

acceptability of the equipment.      In short, if the director did, in fact, determine the

equipment was “reliable,” there is simply no way for a trial court to assess whether it

agrees or disagrees with the director’s determination.

       {¶27} Nevertheless, as argued by the state, the Ohio Supreme Court in Vega

and its progeny has judicially determined that placement of the breath testing instrument

on the approved list by the Director of the Department of Health creates a “presumption”

of its general reliability. We are bound by that determination.

       {¶28} The trial court possesses plenary constitutional power to make decisions

regarding the admissibility of evidence. The majority in Vega did not address the impact

of this truism on the legislative and administrative presumptions it found applicable. The

Vega opinion did not, however, leave a defendant without any options to attack the

specific results of his breath test. The Vega Court stated, “[t]here is no question that the




                                              9
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.

       {¶29} “Vega specifically states that a defendant is entitled to produce evidence

to assail the particular results of the subject test, thereby preserving the trial court’s role

as gatekeeper. Because the delegation and the rebuttable presumption do not infringe

upon the trial court’s ability to admit or exclude evidence,” appellee’s separation of

powers argument is without merit. State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-

Ohio-5584, ¶21.

       {¶30} We also find unpersuasive appellee’s argument that the state is required

to present expert testimony regarding the reliability of breath testing instruments before

their results are admissible. See Rouse, supra (a Daubert hearing is unnecessary as it

pertains to the general reliability of the Intoxilyzer); State v. Luke, 12th Dist. No. 05AP-

371, 2006-Ohio-2306 (in discussing R.C. 4511.19, the court held the legislative

mandate for admissibility obviates the need for the trial court to determine the

admissibility based upon the reliability of the processes and methods underlying the use

of the breath testing machines); State v. Casner, 10th Dist. No. 10AP-489, 2011-Ohio-

1190 (relying on Vega, the Tenth District concluded the trial court did not abuse its

discretion by prohibiting appellant from cross-examining a witness about the general

reliability of breathalyzers); State v. Massie, 2d Dist. No. 2007 CA 24, 2008-Ohio-1312,

¶36 (the appellant’s general attack on the breath test machine was forestalled by the

“legislative mandate recognized in Vega”); State v. Columber, 3d Dist. No. 9-06-05,

2006-Ohio-5490, ¶14 (“the Ohio legislature has delegated to the Director of the




                                              10
Department of Health, not the court, the discretionary authority to determine which tests

and procedures are generally reliable and admissible in a prosecution under R.C.

4511.19”).

       {¶31} Here, in his motion to suppress, appellee stated the “test result from the

Intoxilyzer 8000 is inadmissible and scientifically unreliable.” Appellee did not present

any specific challenge to the reliability of the Intoxilyzer 8000. As we stated in Rouse,

“[a] motion to suppress must state its legal and factual basis with sufficient particularity

to put the prosecutor and the trial court on notice of the issues to be decided.” Rouse,

supra, ¶33, citing State v. Perl, 11th Dist. No. 2006-L-082, 2006-Ohio-6100, ¶15. Here,

like Rouse, appellee’s motion in limine did not provide legal or factual grounds in

support of his challenge. 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

motion. If appellee had alleged a specific, articulated basis for his assertion that the

Intoxilyzer was unreliable, that would present a different issue that is not the subject of

this appeal.

       {¶32} As previously mentioned, the legislature has allowed the director of the

department of health to determine that the Intoxilyzer 8000 is generally reliable. A

defendant is therefore entitled to challenge the specific breath test results based on

specific alleged deficiencies in the testing equipment; the burden, however, is on the

defendant to come forward with evidence sufficient to overcome the presumption

afforded to the Director of the Ohio Department of Health as determined by the Ohio

Supreme Court in Vega.       Rouse at ¶39.       In light of the evidence produced at the

hearing, the trial court may then determine whether to admit the breath test device.




                                            11
       {¶33} The state’s assignment of error is with merit.

       {¶34} For the reasons discussed in this opinion, the judgment of the Portage

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

proceedings consistent with 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.

       {¶35} I concur in the judgment of this court, that, pursuant to R.C.

4511.19(D)(1)(b) and R.C. 3701.143, as interpreted by State v. Vega, 12 Ohio St.3d

185, 465 N.E.2d 1303 (1984), a defendant may not challenge the general reliability of

the Intoxilyzer 8000 as a testing instrument approved by the Ohio director of health.

       {¶36} I write separately, however, because I disagree with the assertion that a

trial court has “exclusive” and “plenary constitutional power to make decisions regarding

the admissibility of evidence,” and that the Ohio Supreme Court in Vega “did not

address the impact of this truism on the legislative and administrative presumptions”

regarding testing devices. Supra at ¶ 28.

       {¶37} Section 5(B), Article IV of the Ohio Constitution provides: “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.” Thus, “the Ohio Rules of Evidence, which were promulgated by the




                                              12
Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must

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).

        {¶38} It does not follow, however, that a trial court has exclusive, plenary power

to make all decisions regarding the admissibility of evidence. “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.

        {¶39} 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. The majority cites Evidence

Rule 104(A) for the proposition that “the courts [have] sole authority to decide questions

of admissibilty.”   Supra at ¶ 21.       In fact, Evidence Rule 104(A) provides that

“[p]reliminary questions concerning the qualification of a person to be a witness, the

existence of a privilege, or the admissibility of evidence shall be determined by the

court,” and that, in making such determinations, the court “is not bound by the rules of

evidence except those with respect to privileges.”

        {¶40} Contrary to the majority’s position, nothing in the Rules of Evidence

establishes the trial court as the sole “gatekeeper” with respect to the general reliability




                                            13
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.”

        {¶41} 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 “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

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

been exceeded.” Id. at ¶ 19.

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

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

2004-Ohio-4400, ¶ 12.3

        {¶43} In a similar situation, the Ohio Supreme Court considered the General

Assembly’s authority to statutorily provide 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



3. As examples, the Third District Court of Appeals noted: R.C. 2907.02(D) (limiting the admissibility of
evidence regarding 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).


                                                    14
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. at ¶ 23.

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

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

       {¶45} 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 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. Vega,

12 Ohio St.3d at 189, 465 N.E.2d 1303; Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d 689

(1984).




                                              15
       {¶46} Accordingly, while I concur in this court’s ultimate judgment, I dispute the

contention that Vega is somehow inconsistent with Ohio’s constitutional jurisprudence

and find the analysis unnecessary to resolve the issue raised on appeal.

                                 ____________________


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

       {¶47} 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.

       {¶48} 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

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

       {¶49} 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



                                             16
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.)

       {¶50} 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).

       {¶51} 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).

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

the defendant’s substantive due process rights.




                                            17
       {¶53} “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).

       {¶54} 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).

       {¶55} 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

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.




                                            18
       {¶56} 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.

       {¶57} 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.

       {¶58} 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.

       {¶59} 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.




                                             19
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.

       {¶60} 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).

       {¶61} 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).




                                             20
       {¶62} 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.

       {¶63} When an appellate court 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.

       {¶64} 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.




                                             21
