State v. Zoeckler
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[Cite as State v. Zoeckler, 2013-Ohio-548.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellant, : OPINION : CASE NO. 2012-P-0092 - vs - : BRIAN J. ZOECKLER, Defendant-Appellee. : : Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 04754. 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). J. Chris Sestak, Student Legal Services, Inc., Kent State University, 164 East Main Street, #203, Kent, OH 44240 (For Defendant-Appellee). CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, the state of Ohio, appeals from the judgment of Portage County Municipal Court, Ravenna Division, granting a motion to suppress the results of the Intoxilyzer 8000 breath test of appellee, Brian J. Zoeckler. At issue is whether the state is required to first produce evidence of a breath test machine s general reliability as a precondition for admitting breath test results. For the reasons discussed below, we reverse the decision of the trial court and remand the matter for further proceedings. {¶2} During the early hours of April 14, 2012, appellee was stopped for speeding. Eventually, appellee was arrested for driving under the influence of alcohol ( OVI ), in violation of R.C 4511.19(A)(1)(a), and speeding, in violation of R.C. 4511.21. At the station, appellee s breath test revealed a blood-alcohol concentration of .108; he was consequently cited for OVI pursuant to R.C. 4511.19 (A)(1)(d). {¶3} Appellee filed a motion to suppress, which included a challenge to the general reliability of the Intoxilyzer 8000. The matter came on for hearing at which the only matter in issue was the reliability of the breath-testing device. The state, relying on State v. Vega, 12 Ohio St.3d 185 (1984), maintained appellee could not challenge the general scientific reliability of the Intoxilyzer 8000. The state asserted Vega upheld the presumption of reliability accorded breath test machines, including the Intoxilyzer 8000. In light of this precedent, the state refused to produce any witnesses regarding the general reliability of the device. {¶4} Appellee, alternatively, asked the court to follow the decision of the Portage County Municipal Court, State v. Johnson, Portage M.C. No. R2011TRC4090. In Johnson, the court required the state to produce evidence of the general reliability of the Intoxilyzer 8000. The state refused to do so and the court suppressed the results of the breath test. Pursuant to Johnson, appellee requested that the court exclude her breath-alcohol results if the state declined to produce expert testimony regarding the general reliability of the Intoxilyzer 8000. {¶5} The court, following its ruling in Johnson, concluded the state s failure to produce any evidence regarding the reliability of the Intoxilyzer 8000 rendered the breath results inadmissible. The court consequently granted appellee s motion and stayed the judgment pending the state s appeal. 2 {¶6} The state asserts one assignment of error for our review, which provides: {¶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 wellestablished case law. {¶8} This court has recently ruled on this exact issue in State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584. In that case, this court reversed the trial court s decision requiring the state shoulder the initial burden of production for establishing the reliability of the Intoxilyzer 8000. This court specifically concluded that once the state has demonstrated a statutorily approved breath testing device was used, a presumption of reliability attaches. This presumption, however, does not resolve the issue of admissibility. Rather, this court held, after the presumption attaches, a defendant is entitled to make specific challenges to the general 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. See id., passim. {¶9} We accordingly hold, on the authority of Rouse, the judgment of the Portage County Municipal Court, Ravenna Division, is reversed and remanded. {¶10} Appellee s sole assignment of error is sustained. {¶11} The judgment of the Portage County Municipal Court, Ravenna Division, is hereby reversed and remanded. TIMOTHY P. CANNON, P.J., concurs, THOMAS R. WRIGHT, J., dissents with Dissenting Opinion. _______________ 3 THOMAS R. WRIGHT, J., dissents with Dissenting Opinion. {¶12} 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. {¶13} 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. {¶14} 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.) 4 {¶15} 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). {¶16} 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). {¶17} Moreover, the determination of evidential reliability necessarily implicates the defendant s substantive due process rights. {¶18} 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 5 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). {¶19} 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). {¶20} 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. {¶21} 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. 6 {¶22} 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. {¶23} 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. {¶24} 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. 7 {¶25} 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). {¶26} 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). {¶27} 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 8 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. {¶28} 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 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. {¶29} 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. 9
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