[Cite as State v. Pizzino, 2013-Ohio-545.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, : CASE NOS. 2012-P-0079 - vs - : and 2012-P-0080
MITCHELL S. PIZZINO, :
Defendant-Appellee. :
Criminal Appeals from the Portage County Municipal Court, Ravenna Division, Case Nos. R2012 TRC 04633 and R2012 CRB 00973.
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).
David A. Sed, 269 West Main Street, P.O. Box 672, Ravenna, OH 44266 (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,
Mitchell S. Pizzino’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 April 12, 2012, Pizzino 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); and OVI, a misdemeanor of the first
degree, in violation of R.C. 4511.19(A)(1)(h). On the same date, he was issued a
separate ticket for an Open Container violation, a minor misdemeanor, in violation of
R.C. 4301.62.1
{¶3} On May 24, 2012, Pizzino filed a Motion to Suppress, challenging, inter
alia, the results of a breath test taken by Pizzino at the time of the citation, arguing that
the “Blood Alcohol Content test result from the Intoxilyzer is inadmissible and
scientifically unreliable pursuant to State vs. Johnson (2012) in Portage County
Municipal Court case 2011 TRC 04090.” Pizzino also asserted that the “testing
instrument was not in proper working order,” that the instrument operator “lacked the
necessary qualifications,” and a few other alleged problems with the breath test.
{¶4} On July 13, 2012, a hearing was set for the Motion to Suppress. Pursuant
to the trial court’s Journal Entry issued on that date, “the Assistant Prosecutor and
Defense Attorney made oral arguments to the Court regarding the issue of the scientific
reliability and admissibility of the Defendant’s breath test result from the Intoxilyzer
8000.” A review of the transcript of the hearing, however, does not reveal any argument
by the parties. It shows only that the court stated that it would grant the Motion to
1. This charge was issued a separate case number, Portage County Municipal Court Number R 2012 CRB 00973.
2 Suppress and order the breath test result be suppressed. The court further indicated
that the proceedings in both cases would be stayed pending appeal.
{¶5} In the July 13, 2012 Journal Entry, the trial court granted Pizzino’s Motion
to Suppress, with respect to the results of the Intoxilyzer 8000. The court noted that it
had considered arguments of counsel and “the prior case heard before this Court
regarding the Intoxilyzer 8000,” State v. Johnson, Portage Municipal Court Case No. R
2011 TRC 4090. In Johnson, the trial court held that the State was required to present
evidence at a hearing for the 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 Defendant’s breath test result shall not be admitted during the trial in
this matter” and that “the violation of Ohio Revised Code 4511.19(A)(1)(h) is dismissed.”
The Entry also noted that “[t]he parties agreed to stay the remaining charges” pending
the results of the State’s appeal.
{¶6} The State timely appeals and raises the following assignment of error:
{¶7} “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.”
{¶8} 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
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.
3 {¶9} We must first address Pizzino’s argument that the lower court’s July 13,
2012 Journal Entry is not a final order. Pizzino’s argument is based on the distinction
between a motion to suppress and a motion in limine, and he argues that since the
motion ruled upon “was in essence a Motion in Limine,” it is not a final appealable order.
Pizzino argues that the judgment was “limited to an initial evidentiary ruling regarding
the admissibility of the results of the Intoxilyzer 8000 under the Ohio Rules of Evidence”
and does not “determine the ultimate admissibility of the evidence.”
{¶10} “The purpose and effect of a motion to suppress and a motion in limine
are distinct.” State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). A
“motion to suppress” is a “[d]evice used to eliminate from the trial of a criminal case
evidence which has been secured illegally, generally in violation” of a constitutional
right. Id., citing Black’s Law Dictionary (6 Ed.1990) 1014. “[T]he ruling of the court at
the suppression hearing prevails at trial and is, therefore, automatically appealable by
the state.” Id., citing R.C. 2945.67(A) and [former] Crim.R. 12(J).
{¶11} In contrast, a “motion in limine” is a motion “which is usually made before
or after the beginning of a jury trial for a protective order against prejudicial questions
and statements * * * to avoid injection into trial of matters which are irrelevant,
inadmissible and prejudicial.” (Citation omitted.) State v. Grubb, 28 Ohio St. 3d 199,
200, 503 N.E.2d 142 (1986). In ruling on a motion in limine, “the trial court is at liberty
to change its ruling on the disputed evidence in its actual context at trial. Finality does
not attach when the motion is granted.” (Citation omitted.) Defiance v. Kretz, 60 Ohio
St.3d 1, 4, 573 N.E.2d 32 (1991).
4 {¶12} The Ohio Supreme Court has held that “[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. The granting of such a motion is a final order and may be appealed
pursuant to R.C. 2945.67 and Crim. R. 12(J) [now (K)].” State v. Davidson, 17 Ohio
St.3d 132, 477 N.E.2d 1141 (1985), syllabus. Accordingly, “[a] pretrial challenge to a
breathalyzer test, if granted, destroys the state’s case under [former] R.C. 4511.19(A)(3)
[prohibited breath alcohol concentration], and the state is permitted to appeal pursuant
to R.C. 2945.67 and Crim. R. 12[(K)(2)].” Defiance at 4.
{¶13} As this court has recently held in very similar circumstances, a
determination that “the Defendant’s breath test shall not be admitted during the trial”
was not a “tentative or precautionary ruling.” State v. Miller, 11th Dist. No. 2012-P-
0032, 2012-Ohio-5585, ¶ 19. This court further held that “[a]ny doubt as to the finality of
this ruling is removed by the court’s dismissal of the charge of operating a vehicle with a
prohibited breath alcohol concentration,” which also occurred in the present matter. Id.
{¶14} For the foregoing reasons, the municipal court’s July 13, 2012 Journal
Entry is a final order, properly appealed by the State pursuant to R.C. 2945.67(A) and
Crim.R. 12(K)(2), which allow a prosecuting attorney to appeal a decision granting a
motion to suppress evidence, provided that the prosecuting attorney certifies that the
ruling “has rendered 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.”
Crim.R. 12(K)(2).
5 {¶15} 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.
{¶16} Pizzino rejects the State’s argument for several reasons, including the
contention that the use of the word “may” in the phrase “the court may admit evidence
on the concentration of alcohol” in the OVI statute recognizes the trial court’s discretion
to admit and exclude evidence and that a threshold showing of reliability by the State is
required.
{¶17} The Ohio General Assembly has charged the Ohio 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 Intoxilyzer 8000 has been approved as an
“evidential breath testing instrument” by the director of health. Ohio Adm.Code 3701-
53-02(A)(3).
{¶18} 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
6 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. Miller, 2012-Ohio-5585, at ¶
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.
{¶19} 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
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.” 12 Ohio
St.3d at 186, 465 N.E.2d 1303. 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, 190.
{¶20} 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 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 at 189. 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
7 valid scientific means of determining blood alcohol levels.” State v. Tanner, 15 Ohio
St.3d 1, 6, 472 N.E.2d 689 (1984); French, 72 Ohio St.3d at 451-452, 650 N.E.2d 887.
{¶21} 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.
{¶22} Despite these rulings, Pizzino contends that trial courts nevertheless
retain the discretion to hear argument on the general or scientific reliability of a breath
testing instrument, relying on a statement in French allowing certain evidentiary
objections to chemical test results to be raised. However, this argument has already
been rejected by this court in Miller, since French does not create an exception to the
Vega rule prohibiting challenges to the general scientific reliability of breath testing
instruments. Miller, 2012-Ohio-5585, at ¶ 28; State v. Urso, 195 Ohio App.3d 665,
2011-Ohio-4702, 961 N.E.2d 689, ¶ 90 (11th Dist.).
{¶23} Pizzino also asserts that the trial court could not take judicial notice of the
reliability of the Intoxilyzer 8000, since no court in the trial court’s jurisdiction has
approved of expert testimony to establish the reliability of the instrument, and that Vega
cannot establish the reliability of the instrument through judicial notice.
{¶24} We disagree. As explained to the foregoing analysis, Vega requires the
lower court to accept the general reliability of the Intoxilyzer, pursuant to the
determination of the Ohio director of health. This eliminates the necessity of the State
presenting expert testimony or other evidence as to the general reliability of the
8 Intoxilyzer 8000. See Dayton v. Futrell, 2nd Dist. No. CA 8615, 1984 Ohio App. LEXIS
11631, *4 (Oct. 26, 1984) (The “judiciary must take notice that [intoxilyzer breath] tests,
properly conducted, are reliable irrespective of disagreements among experts and that
the results of such tests are admissible. Accordingly, judicial notice of this factor
dispenses with the necessity for expert testimony by the state in chief for the efficiency
of the intoxilyzer machine.”); Miller at ¶ 29, citing State v. Massie, 2nd Dist. No. 2007 CA
24, 2008-Ohio-1312, ¶ 36 (noting that a Daubert challenge or presentation of expert
testimony is “forestalled by the ‘legislative mandate recognized in Vega’”) (citation
omitted).
{¶25} Pizzino finally argues that the delegation of authority to the director of
health to determine the validity of testing methods and devices violates the separation
of powers doctrine and infringes upon the trial court’s role as gatekeeper and its
regulation of the admission of expert testimony under Evidence Rule 702.
{¶26} “The Ohio Rules of Evidence, which were promulgated by the 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.”
(Citation omitted.) State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio
St.3d 451, 491, 715 N.E.2d 1062 (1999). “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.
{¶27} 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
9 substances does not conflict with any Rule of Evidence. Pizzino refers to Evidence
Rule 702; but nothing in this rule establishes the trial court as the sole “gatekeeper” with
respect to the general reliability 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.”
{¶28} 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 a “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.
{¶29} 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
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
10 are sufficiently reliable to be admissible by meeting a clear-and-convincing standard.”
Id. at ¶ 23.
{¶30} 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 ultimate admissibility of evidence,
but rather delegate the preliminary determination regarding the general scientific
reliability of testing devices to the director of health. As noted above, 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, as well as make an attack on the reliability of
the Intoxilyzer 8000 based on specific reasons instead of general assertions of the
State’s failure to prove its reliability. This is consistent with this court’s recent holding in
Rouse. 2012-Ohio-5584, at ¶ 21 (“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”).
{¶31} We note that, in the present case, Pizzino challenged the breath test
results of the Intoxilyzer 8000 on several grounds, including that the breath test was not
administered within the time limit, that the testing instrument was not working properly,
that the instrument operator lacked the necessary qualifications, and that other
regulations were not followed. However, the municipal court appears to have granted
Pizzino’s Motion solely on the grounds stated in Johnson, that the State failed to
produce evidence of the Intoxilyzer 8000’s general scientific reliability. Accordingly, on
remand, it will be necessary for the court to hold another hearing to address the other
issues raised in Pizzino’s Motion to Suppress. Miller, 2012-Ohio-5585, at ¶ 34.
11 {¶32} The sole assignment of error is with merit.
{¶33} For the foregoing reasons, the judgment of the Portage County Municipal
Court, Ravenna Division, granting Pizzino’s Motion to Suppress and dismissing the
charge of violating R.C. 4511.19(A)(1)(h) 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.
______________________
{¶34} 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.
{¶35} 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.
12 {¶36} 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.)
{¶37} 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).
{¶38} 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.
13 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).
{¶39} Moreover, the determination of evidential reliability necessarily implicates
the defendant’s substantive due process rights.
{¶40} “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).
{¶41} 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).
{¶42} 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
14 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.
{¶43} 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.
{¶44} 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.
{¶45} 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
15 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.
{¶46} 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 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.
{¶47} 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).
{¶48} 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
16 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).
{¶49} 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.
{¶50} 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
17 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.
{¶51} 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.