[Cite as State v. Morrison, 2013-Ohio-4117.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellant,          :
                                                       CASE NO. 2012-P-0122
        - vs -                                 :

GILBERT H. MORRISON,                           :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 8164.

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).

Dennis Day Lager, Portage County Public Defender, and Carolyn K. Mulligan,
Assistant Public Defender, 209 South Chestnut Street, #400, 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, which granted appellee, Gilbert Morrison’s, motion to

suppress the results of his Intoxilyzer 8000 test. This court recently held in State v.

Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, that the Intoxilyzer 8000 is

presumed reliable, and that the defendant is entitled, but has the burden of production,

to specifically challenge the general reliability of the Intoxilyzer 8000. Based on this
court’s precedent in Carter, we reverse the trial court’s judgment, and remand this

matter for further proceedings consistent with this opinion.

       {¶2}   On June 9, 2012, at about 2:30 a.m., Morrison was stopped by police for

driving without headlights. A breath test was administered using an Intoxilyzer 8000,

the results of which showed that Morrison’s blood-alcohol concentration was .220,

nearly three times the legal limit. He was cited for operating his vehicle under the

influence of alcohol and driving with a prohibited blood-alcohol concentration, in

violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h), respectively. He was also cited

for driving without headlights, in violation of R.C. 4513.03. Morrison pled not guilty.

       {¶3}   The state filed a “brief regarding Intoxilyzer 8000 hearing.”       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}   Thereafter, Morrison filed a motion to suppress the results of his breath

test, challenging the general reliability of the Intoxilyzer 8000. His motion challenged

the admissibility of the results of his breath test, the results of his field sobriety tests,

and his statements to police.     In support of his motion to suppress his breath-test

results, Morrison listed several specific challenges to his breath test. For example, he

argued the person administering his breath test was not qualified; the machine was not

operating properly; and his test was not administered correctly.

       {¶5}   In the trial court’s judgment ruling on Morrison’s motion to suppress, the

court limited its review of his motion to the admissibility of his breath-test results from




                                             2
the Intoxilyzer 8000, and did not address any of his specific challenges to his test

results. The court granted Morrison’s motion to suppress, 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 court held that, because the state did not produce

evidence of the reliability of the Intoxilyzer 8000, Morrison’s breath-test results from the

Intoxilyzer 8000 were not admissible at trial.      The court stated that the remaining

charges alleging violations of R.C. 4511.19(A)(1)(a) and R.C. 4513.03 would be set for

trial, implying that the per-se OVI charge under R.C. 4511.19(A)(1)(h) was dismissed.

       {¶6}   The trial court granted the state’s motion to stay execution of the

judgment.

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

sole assignment of error:

       {¶8}   “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.”

       {¶9}   We review a trial court’s legal determinations at a suppression hearing de

novo. State v. Dijsheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19.

       {¶10} This court has recently ruled on this exact issue in Carter, supra.          In

Carter, this court reversed the trial court’s decision requiring the state to shoulder the

initial burden of production to establish the general reliability of the Intoxilyzer 8000.

This court held that once the state has demonstrated a statutorily-approved breath-

testing device was used, a presumption of reliability attaches. Id. at ¶14. Further, this

court held that once the presumption attaches, a defendant is entitled to make specific




                                             3
challenges in a motion to suppress to the general reliability of the Intoxilyzer 8000. Id. at

¶43. In State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, this court also

held:

        {¶11} 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. While, as discussed above, the machine is

              presumed to be generally reliable, a defendant may raise specific

              issues related to its reliability in a motion to suppress, as opposed

              to general assertions that the State failed to prove its reliability,

              which is prohibited under Vega. See Vega at 189. Miller, supra, at

              ¶32.

        {¶12} Further, In Miller, this court held a defendant can make “specific

challenges to the Intoxilyzer’s reliability,” and “[a] defendant may * * * challenge the

reliability of the Intoxilyzer 8000 with specific arguments * * *.” Id. at ¶33.

        {¶13} Further, this court has held that, because the Intoxilyzer 8000 is presumed

reliable, the defendant has the burden of production to present evidence that the

Intoxilyzer 8000 is not reliable.    Carter at ¶39.     If the defendant satisfies his initial

burden, the burden of proof then shifts to the state to produce evidence establishing the

machine’s reliability.

        {¶14} As a practical matter, after both parties present evidence in support of

their respective positions, the trial court determines whether the defendant has met his

initial burden of production. If the court determines that the defendant has not met his




                                               4
burden of production, the motion shall be denied. However, if the court finds that the

defendant has satisfied his burden, the court shall then determine whether the state has

satisfied its burden of proof. If it has, the motion shall be denied. However, if it has not,

the motion shall be granted.

       {¶15} The foregoing burden-shifting procedure has long been followed by

federal and state courts in the analogous contexts of apparently lawful searches and

confessions. With respect to searches following the issuance of a search warrant, a

defendant has the initial burden to establish a prima facie case that the search was not

lawful. Once that burden is met, the burden shifts to the state to prove the search was

lawful. United States. v. Whitten, 848 F.2d 195, 1988 U.S. App. LEXIS 6485, *3 (6th

Cir.); United States v. Murrie, 534 F.2d 695, 697-698 (6th Cir.1976); United States v.

Triumph Capital Group, Inc., 2003 U.S. Dist. LEXIS 24776, *7-*8 (D.Conn.). Further,

“[t]here are shifting burdens in suppression hearings regarding confessions.” United

States v. Burnette, 535 F.Supp.2d 772, 782 (E.D.Tex.2007). After the defendant

satisfies his initial burden to show his confession was the result of a custodial

interrogation, the burden shifts to the government to prove the evidence was not illegally

obtained, i.e., that the Miranda warnings were given; the defendant waived them; and

the confession was voluntary. Id. It is worth noting that trial courts typically decide

whether the parties met their respective burdens after all evidence has been presented.

See e.g. Triumph, supra, at *8; Murrie, supra, at 696-698; Burnette, supra, at 779-780;

State v. Saffell, 9th Dist. No. 2928, 1995 Ohio App. LEXIS 3060, *2-*4 (July 19, 1995);

United States v. Bonds, 2006 U.S. Dist. LEXIS 3436, *3-*5 (S.D.Miss.).




                                             5
        {¶16} While Morrison presented some specific challenges to his breath-test

results in his motion to suppress, the trial court did not address them in its judgment.

Moreover, Morrison does not assert them on appeal. As a result, we cannot consider

them.

        {¶17} Pursuant to Carter, we hold the trial court erred in requiring the state to

produce evidence of the Intoxilyzer 8000’s general reliability, in granting Morrison’s

motion, and in excluding the results of his breath test.

        {¶18} Therefore, on remand, the trial court is instructed to reinstate Morrison’s

per-se charge. Further, on remand, Morrison is entitled, but has the burden of

production, to specifically challenge the general reliability of the Intoxilyzer 8000

according to the burden-shifting procedure outlined above.

        {¶19} 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,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                                ______________________


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

        {¶20} I concur in the judgment of this court, that “the trial court erred in requiring

the state to produce evidence of the Intoxilyzer 8000’s general reliability.” Supra at ¶

17.



                                              6
        {¶21} I write separately, however, because I do not concur that a defendant

bears the burden of production when challenging breath test results obtained from the

Intoxilyzer 8000 in the context of a suppression hearing for the reasons stated in my

concurring/dissenting opinions in State v. Carter, 11th Dist. No. 2012-P-0027, 2012-

Ohio-5583, and State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584.

        {¶22} In support of her position, the writing judge analogizes specific challenges

to the instrument’s general reliability to unconstitutional searches and seizures, such as

where a defendant challenges a search that was conducted pursuant to a valid warrant

with supporting affidavits. Challenges to the specific reliability of the Intoxilyzer 8000

are more properly understood in the context of challenges to scientific reliability as

discussed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786, 125 L.Ed.2d 469 (1993), and Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687

N.E.2d 735 (1998), rather than in the context of the Fourth Amendment exclusionary

rule.   A Daubert/Miller analysis focuses on the reliability of the underlying scientific

principles and/or methodology involved, rather than the reliability of specific test results.

Daubert at 595; Miller at 611-612.

        {¶23} The problem with analogizing to Daubert/Miller to justify shifting the

burden of demonstrating unreliability to the defendant is that this court has repeatedly

held that the reliability of the Intoxilyzer 8000 cannot be challenged under

Daubert/Miller. See Rouse, 2012-Ohio-5584, at ¶ 28 (“appellee’s argument that the

Intoxilyzer 8000 is unreliable was an attack on the general reliability of a director-

approved breath-testing instrument, which is prohibited by Vega,” accordingly “we




                                             7
maintain a Daubert hearing is unnecessary as it pertains to the general reliability of the

Intoxilyzer”); Carter, 2012-Ohio-5583, at ¶ 40 (the same).

       {¶24} The writing judge’s present position appears to contradict this court’s

earlier pronouncements that challenges to the Intoxilyzer 8000 based on its general

reliability may not be raised to suppress the test results. In contrast, this court has

recognized that such challenges may be properly raised at trial, with the evidence going

to the weight rather than the admissibility of the evidence. State v. Miller, 11th Dist. No.

2012-P-0032, 2012-Ohio-5585, ¶ 31 (cases cited); State v. Hatcher, 11th Dist. Nos.

2012-P-0077 and 2012-P-0078, 2013-Ohio-445, ¶ 24 (“the statutory recognition of the

Intoxilyzer 8000’s admissibility * * * does not prevent a defendant from introducing

evidence as to the general unreliability of this specific machine through the use of

expert opinion testimony,” where “[s]uch testimony does not challenge the admissibility

of the breath test results; rather it challenges the weight and credibility to be given to the

results”).

       {¶25} The writing judge presents no convincing argument as to why the

established procedures for conducting a hearing to suppress breath test results should

be ignored when the subject of the motion concerns the Intoxilyzer 8000. Therefore, in

regard to the preceding statements, I concur in judgment only.



                                   ______________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶26} I respectfully dissent.




                                              8
       {¶27} As the writing judge notes, the state relies on Vega, 12 Ohio St.3d 185. I

do not believe that Vega stands for the sweeping proposition advanced by the state –

i.e., that the results of all tests from breath analysis machines approved by the Director

of Health for use in OVI cases must, automatically, be accepted into evidence, so long

as the operator is competent and the machine functional.

       {¶28} 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.” Id. at 186. The Vega court premised its decision on

several considerations.

       {¶29} First, the court cited to its prior holding in Westerville v. Cunningham, 15

Ohio St.2d 121, 123 (1968), regarding use of breath analysis machines in OVI cases,

for the proposition that: “‘such tests are today generally recognized as being reasonably

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

competent operators.’” Vega at 186.

       {¶30} Second, the court noted that the General Assembly confided discretion to

determine proper methods of analyzing breath alcohol to the Director of Health, and that

the director had designated the machine in question as appropriate. Vega, 12 Ohio

St.3d at 186-187.

       {¶31} Third, the court noted that under the version of R.C. 4511.19 then current,

the results of a breath analysis exceeding the statutory level merely created a rebuttable

presumption that the defendant was intoxicated, which did not prevent the defendant




                                             9
showing, through other evidence, that he or she was not, in fact, under the influence of

alcohol. Vega, 12 Ohio St.3d at 188-189.

      {¶32} Based on this last point, it would appear that Vega is no longer good law.

The Parma Municipal Court recently so found in Parma v. Malinowski, Parma M.C. No.

12TRC 03580 (April 22, 2013) (Spanagel, J.). As that court states:

      {¶33} “The majority in Vega themselves set forth the (sic) in their own logic why

Vega is no longer good law, when they stated:

      {¶34} “‘Not only does appellee’s position fail to give recognition to the legislative

determination, it also misperceives the presumption and the effect of that presumption

created by R.C. 4511.19. The presumption created by R.C. 4511.19 is that the accused

was under the influence of alcohol. ‘The effect of the presumption is to eliminate the

necessity of proof by the prosecution of the effect of alcohol on the individual when the

level is within the range established by the presumption. The statute does not create an

absolute presumption, but only a rebuttable one (* * *).

      {¶35} “This presumption does not, contrary to appellee’s arguments, change the

presumption of innocence to one of guilt. It merely raises the rebuttable presumption

that one was under the influence of alcohol.       Under the statute, the accused may

introduce any other competent evidence bearing upon the question of whether he was

under the influence of intoxicating liquor. (* * *) There is no question that the accused

may also attack the reliability of the specific testing procedure and the qualifications of

the operator. See, e.g., Cincinnati v. Sand (1975), 43 Ohio St.2d 79, * * *. Defense

expert testimony as to testing procedures at trial going to weight rather than

admissibility is allowed. Since the presumption is rebuttable and the defendant may go




                                            10
forward with evidence, the ‘(* * *) (d)efendant cannot be heard to complain that the

provisions of R.C. 4511.19 eliminate his presumption of innocence or hamper the

presentation of his defense.’ State v. Myers [(1971), 26 Ohio St.2d [190,] 201, * * *.

The presumption created by the scientific test is thus to be considered by the jury and

the court along with the other evidence as to whether or not the accused was

intoxicated. Whether the presumption was overcome by the evidence presented is a

question of fact for the jury.’ * * *

       {¶36} “Examination of the majority decision itself clearly shows that they

believed that the rebuttable presumption was able to be addressed by presenting other

evidence, including limited attack on the machine result as another item of evidence.

Today the test result is not a rebuttable presumption but a conclusive presumption.

Conclusive presumptions have been previously found to be unconstitutional.” (Citing

Sandstrom v. Montana, 442 U.S. 510 (1979)).            (Emphasis sic.)   (Parallel citations

omitted.) Malinowski at 8-9.

       {¶37} This     reasoning     is   persuasive.    Conclusive   presumptions     being

unconstitutional, Vega can no longer provide authority that attacks on the reliability of

breath analysis machines cannot be made, since the law presently gives the results of

such tests conclusive effect.

       {¶38} However, an analysis of the applicable statutes, even within the context of

Vega, does not lead to the conclusion that a trial court may not demand proof of the

Intoxilyzer 8000’s reliability.

       {¶39} R.C. 4511.19(D)(1)(b) states in part:




                                              11
       {¶40} “In 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.)

       {¶41} The foregoing statute uses the word “may.” “‘The statutory use of the

word “may” is generally construed to make the provision in which it is contained

optional, permissive, or discretionary.’” State v. Davie, 11th Dist. No. 2000-T-0104,

2001 Ohio App. LEXIS 5842, *16 (Dec. 21, 2001), quoting Dorrian v. Scioto Conserv.

Dist., 27 Ohio St.2d 102, 107 (1971). Thus, R.C. 4511.19(D)(1)(b) does not mandate

admissibility of the results of the breath test. Rather, the statute vests the trial court with

discretion in making a determination with respect to admissibility, notwithstanding

approval from the director of health.      As my colleague, Judge Wright, has recently

stated in a series of penetrating dissents:

       {¶42} “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.




                                              12
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.”              State v.

Collazo, 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶38.1

       {¶43} Again, the statutory scheme does not establish the proposition advanced

by the state: i.e., results of any breath analysis machine must be accepted at trial.

Rather, the statutes provide that the Director of Health has sole authority to approve

machines – but that the trial courts of Ohio have discretion to accept the results

generated by the machines so approved. Further, Vega prohibits blanket attacks on the

reliability of breath analysis machines generally, and premises this upon the use of

“‘proper equipment.’” Vega, 12 Ohio St.3d at 186. The question raised in this case is

the reliability of the Intoxilyzer 8000 specifically. A breath analysis machine could only

be “proper equipment” if it is reliable.

       {¶44} As Judge Wright further noted in Collazo:

       {¶45} “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

1. See also Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440; State v. Schrock, 11th Dist. No. 2012-
P-0022, 2013-Ohio-441; State v. Harmon, 11th Dist. No. 2012-P-0067, 2013-Ohio-442; State v. Funk,
11th Dist. No. 2012-P-0071, 2013-Ohio-444; State v. Hatcher, 11th Dist. Nos. 2012-P-0077 and 2012-P-
0078, 2013-Ohio-445; State v. Webb, 11th Dist. No. 2012-P-0052, 2013-Ohio-541; State v. Neice, 11th
Dist. No. 2012-P-0064, 2013-Ohio-542; State v. Butler, 11th Dist. No. 2012-P-0066, 2013-Ohio-543; State
v. Lucas, 11th Dist. No. 2012-P-0070, 2013-Ohio-544; State v. Pizzino, 11th Dist. Nos. 2012-P-0079 and
2012-P-0080, 2013-Ohio-545; State v. Kuntz, 11th Dist. No. 2012-P-0082, 2013-Ohio-546; State v.
McCune, 11th Dist. No. 2012-P-0089, 2013-Ohio-547; State v. Zoeckler, 11th Dist. No. 2012-P-0092,
2013-Ohio-548; State v. Tagliaferri, 11th Dist. No. 2012-P-0094, 2013-Ohio-549; State v. Hinton, 11th
Dist. No. 2012-P-0095, 2013-Ohio-550; State v. Canino, 11th Dist. No. 2012-P-0102, 2013-Ohio-551.


                                                  13
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, *8 (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).

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

the defendant’s substantive due process rights.

       {¶47} “‘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).

       {¶48} “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, * * *.” (Parallel citations

omitted.) Collazo, 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶41-44.




                                            14
         {¶49} As the Court of Appeals, Tenth Appellate District has observed:

         {¶50} “Substantive due process prohibits the government from infringing upon

fundamental liberty interests in any manner, regardless of the procedure provided,

unless the infringement survives strict scrutiny; i.e., the government’s infringement must

be ‘narrowly tailored to serve a compelling state interest.’ Reno v. Flores (1993), 507

U.S. 292, 302, * * *.” In re M.D., 10th Dist. No. 07AP-954, 2008-Ohio-4259, ¶9.

         {¶51} Case law indicates serious problems regarding the reliability of the

Intoxilyzer 8000, which make it incumbent on trial courts to assure the reliability of its

results, before allowing those results into evidence. In one case, plaintiff brought a

federal action for violation of his Fourth Amendment rights, following his arrest for

driving under the influence. Briggs v. Holsapple, D.Oregon Civil Case No. 08-6037-KI,

2009 U.S. Dist. LEXIS 11295, *1 (Feb. 11, 2009). Despite considerable indications on

the field sobriety tests that the plaintiff was inebriated, his breath test on an Intoxilyzer

8000 resulted in a 0.000% BAC. Id. at *6. The state of Oregon brought its own expert

in to testify against the reliability of the machine. Id. at *7. As stated by the district

court:

         {¶52} “Justin Lazenby, Forensic Scientist, Oregon State Police Toxicology Unit,

has reviewed the facts of plaintiff’s arrest and has concluded: (a) the Intoxilyzer 8000

underestimates actual BAC 84% of the time; (b) the Intoxilyzer 8000 will round all breath

sample results below 0.010% down to 0.000%; (c) based on the alcohol consumption

described by plaintiff in his deposition, plaintiff’s BAC at the time of driving would be

between 0.019% and 0.023%, * * *.” Id. at *7-8.




                                             15
       {¶53} The state of Ohio does not seem to have access to the “source code” for

the Intoxilyzer 8000. State v. Gerome, et al., Athens County M.C. Nos. 11TRC01909,

11TRC00826, 11TRC01734, and 11TRC02434, at 15 (June 29, 2011) (Grim, J.). As

the Gerome court found, “In the ODH certification of this instrument, access to the

source code was apparently not deemed necessary.” Id.

       {¶54} “The source code is the human readable format of the software that

controls the operation of the Intoxilyzer 8000. In other words, the source code tells the

Intoxilyzer 8000 how to calculate the numerical result, such as 0.08. If the source code

contains a mistake, then the result generated will be defective.” Montana v. Peters,

2011 MT 274, 362 Mont. 389, 264 P.3d 1124, ¶4 (Mont. 2011).

       {¶55} Testimony has been elicited that such widely used devices as smart

phones can interfere with the Intoxilyzer 8000 at frequencies it cannot detect. Gerome

at 20-21.

       {¶56} One of the liberty interests constitutionally protected by substantive due

process is “freedom from bodily restraint and punishment.” State v. Hayden, 96 Ohio

St.3d 211, 2002-Ohio-4169, ¶14.         Conviction under the OVI laws can result in

deprivation of this liberty interest. Consequently, substantive due process demands that

such convictions be premised on proceedings and procedures which are constitutionally

proper. The state has a compelling interest in preventing driving while impaired – but

any procedure adopted under the OVI laws must be narrowly tailored to serve that

interest.   Presently, use of the Intoxilyzer 8000 does not meet this standard.             I

appreciate the writing judge’s holding that a defendant is entitled to make specific

challenges to the general reliability of the Intoxilyzer 8000 – but it appears that the state




                                             16
itself is unaware of exactly how the machine functions, and generates its results. A

criminal defendant is deprived of substantive due process when convicted using a

procedure which is not merely unknown, but unknowable.               Further, a criminal

defendant’s substantive due process rights cannot be overridden by a legislative

enactment, and there is no need to interpret Ohio’s laws regarding approval of breath

analysis machines in a way that does. Similarly, the decision in Vega, premised on the

use of “proper equipment,” necessarily recognizes the duty of our trial courts to protect

defendants’ substantive due process rights by requiring them to insure that the

equipment is proper. Vega, 12 Ohio St.3d at 186.

      {¶57} For all the reasons foregoing, I would affirm the judgment of the trial court.




                                           17
