[Cite as State v. Palmer, 2013-Ohio-2404.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellant,           :
                                                        CASE NO. 2012-P-0154
        - vs -                                  :

BRIAN D. PALMER,                                :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division.
Case No. R 2012 TRC 5932.

Judgment: Reversed and remanded.


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

Craig M. Stephens, 206-A South Meridian Street, P.O. Box 229, Ravenna, OH 44266
(For Defendant-Appellee).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, the state of Ohio, 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, Brian D. Palmer.

        {¶2}     Appellee was stopped on State Route 59 for excessive speed. During the

stop, the trooper noticed appellee’s speech was slurred and his eyes were glassy. At

the police station, the trooper administered a breath test utilizing the Intoxilyzer 8000.
The result of the breath test revealed that appellee’s blood alcohol concentration was

.136. As a result, appellee was cited for operating a vehicle under the influence of

alcohol and driving with a prohibited blood alcohol content (“BAC”), in violation of R.C.

4511.19 (A)(1)(d). After appellee entered a not guilty plea, he filed a motion to suppress

the results of the Intoxilyzer test, which was captioned “motion in limine.” The trial court

ultimately concluded the results of the breath test from the Intoxilyzer 8000 were not

admissible at the trial of appellee.

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

our review:

       {¶4}   “The Portage County Municipal Court erred as a matter of law by

permitting a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to

Ohio statutes and well-established case law.”

       {¶5}   As a preliminary matter, we must first address appellee’s contention that

the trial court’s ruling on the “motion in limine” is not a final, appealable order because it

did not determine the ultimate admissibility of evidence but rather was a preliminary

evidentiary ruling. However, “[a]ny motion, however labeled, which, if granted, restricts

the state in the presentation of certain evidence and, thereby, renders the state’s proof

with respect to the pending charge so weak in its entirety that any reasonable possibility

of effective prosecution has been destroyed, is, in effect, a motion to suppress.” State

v. Davidson, 17 Ohio St.3d 132 (1985), syllabus.

       {¶6}   In State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, this court

addressed the identical issue.         There, relying on Davidson, supra, we concluded:

“[R]egardless of the label of Carter’s motion, it was a motion to suppress since it




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resulted in the exclusion of evidence that was essential to prove the per se OVI charge.

We therefore hold that the court’s ruling granting the motion was a final, appealable

order.” Id. at ¶11. We then concluded that, as the trial court did not treat its ruling “as

anything other than a final order,” the discussion was moot. Id. See also State v.

Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584, ¶8-11.

       {¶7}   Similarly here, pursuant to the state’s Crim.R. 12(K) certification, the

suppression of the BAC results rendered the state’s proof with respect to the pending

per se charge so weak in its entirety that any reasonable possibility of effective

prosecution on that charge has been destroyed. Additionally, although the motion is

captioned “motion in limine,” it is clear the motion requested suppression or exclusion of

the state’s evidence. The trial court acknowledged the motion “moved the court to

exclude evidence at trial regarding Defendant’s BAC results”; the trial court essentially

treated the matter as a suppression motion. We therefore reject appellee’s contention

that this court does not have jurisdiction to proceed.

       {¶8}   The issue raised in this appeal is identical to the issue raised in State v.

Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440; State v. Rouse, 2012-Ohio-5584;

and State v. Carter, 2012-Ohio-5583.

       {¶9}   In these decisions, we recognized the Ohio General Assembly has given

the Director of Health the authority to determine techniques for chemically analyzing a

person’s breath in order to ascertain the amount of alcohol contained in the person’s

breath. R.C. 3701.143. R.C. 4511.19(D)(1) requires breath samples be analyzed for

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




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3701.143.” The director has approved the Intoxilyzer 8000 as an evidential breath

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

       {¶10} In these decisions, we essentially followed State v. Vega, 12 Ohio St.3d

185 (1984). The issue before the Vega Court was whether the defendant may use

expert testimony to attack the general reliability of intoxilyzers in light of R.C. 4511.19,

which provided for the admission of the test results if the tests are analyzed according

to methods approved by the director. The Vega Court held that “an accused is not

denied his constitutional right to present a defense nor is the state relieved of its burden

of proving guilt beyond a reasonable doubt where a trial judge does not permit expert

testimony to attack the reliability of intoxilyzers in general.” Id. at 186.

       {¶11} Applying Vega, we held that while a general attack on the reliability of the

Intoxilyzer is prohibited, the presumption of reliability is nonetheless rebuttable. See

Johnson at ¶32; Rouse at ¶36.

       {¶12} 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. Johnson at

              ¶32.




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       {¶13} In Johnson, we expressed the reservations that neither R.C. 3701.143 nor

the administrative code sets forth an objective standard enabling a defendant or the

courts to understand the criteria used by the director, if any, in approving the selected

breath test instruments.        Id. at ¶26.   Based on Vega, however, we nevertheless

determined that the director’s placement of the breath testing instrument on the

approved list creates a presumption of its general reliability. Id. at ¶27. This, however,

does not resolve the issue of admissibility. After the presumption attaches, a defendant

may make specific challenges to the reliability of the Intoxilyzer 8000. And, in light of

the evidence adduced at the hearing, a court may determine whether to admit the

breath test evidence pursuant to its gatekeeping function. See Rouse, supra, passim.

       {¶14} Accordingly, the state’s sole assignment of error is with merit.

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

Court, Ravenna Division, is reversed, and the matter is remanded for proceedings

consistent with this opinion.



CYNTHIA WESTCOTT RICE, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
                                   ____________________


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

       {¶16} I concur in the judgment ultimately reached in the opinion, that “a general

attack on the reliability of the Intoxilyzer is prohibited.” Supra at ¶ 11. I concur in

judgment only for the reasons stated in my concurring opinions in State v. Johnson,

11th Dist. No. 2012-P-0008, 2013-Ohio-440, and State v. Witherspoon, 11th Dist. No.

2012-P-0075, 2013-Ohio-1000.


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