[Cite as State v. Devitt, 2013-Ohio-5812.]




                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                   :       OPINION

                 Plaintiff-Appellant,            :
                                                         CASE NO. 2012-P-0131
        - vs -                                   :

COREY M. DEVITT,                                 :

                 Defendant-Appellee.             :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 5025.

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 G. Simon, Jr., Sicuro & Simon, 213 South Chestnut Street, Ravenna, OH
44266 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     The state of Ohio appeals the judgment of the Portage County Municipal

Court, Ravenna Division, granting a motion in limine seeking to exclude the results of an

Intoxilyzer 8000 test filed by appellee, Corey M. Devitt.

        {¶2}     On the morning of April 19, 2012, appellee was stopped for driving left of

the center line. Appellee failed field sobriety tests and was charged with operating a
vehicle under the influence (“OVI”) pursuant to R.C. 4511.19(A)(1)(a). At the station,

appellee’s breath test revealed a blood-alcohol concentration of .116. Thus, he was

also cited for OVI pursuant to R.C. 4511.19(A)(1)(d).

       {¶3}   Appellee filed a motion in limine to exclude the results of his breath test,

challenging the general reliability of the Intoxilyzer 8000. The state argued that it was

not required to present evidence that the Intoxilyzer 8000 is reliable because the

legislature had delegated this determination to the Director of Health, and the Supreme

Court of Ohio upheld this delegation of authority in State v. Vega, 12 Ohio St.3d 185

(1984).

       {¶4}   After considering the parties’ relative arguments, the trial court granted

appellee’s motion in limine, holding that the state was required to produce evidence that

the Intoxilyzer 8000 is reliable in order for his test results to be admissible at trial. The

trial court granted the state’s motion to stay execution of the judgment.

       {¶5}   The state appeals the trial court’s judgment, asserting the following for its

sole assignment of error:

       {¶6}   “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.”

       {¶7}   Pursuant to this court’s en banc judgment and opinion in State v.

Bergman, 11th Dist. Portage No. 2012-P-0124, 2013-Ohio-____, the state’s assignment

of error has merit.




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      {¶8}   It is therefore 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.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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