State v. Gold

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[Cite as State v. Gold, 2013-Ohio-5813.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellant, : OPINION : CASE NO. 2012-P-0134 - vs - : KANDI R. GOLD, : Defendant-Appellee. : Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 07082. 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). Brian L. Coffman, 159 South Main Street, Suite 808, Akron, OH Defendant-Appellee). 44308 (For THOMAS R. WRIGHT, J. {¶1} This accelerated calendar appeal is from an order of the Portage County Municipal Court, Ravenna Division, granting the motion to suppress the results of a breath test performed on an Intoxilyzer 8000. Appellant, the State of Ohio, contends that the trial court erred in allowing appellee, Kandi R. Gold, to raise a general attack upon the reliability of the breath test machine, and assigns the following error: {¶2} 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. {¶3} As a threshold matter, we note that appellee styled her challenge to the reliability of the breath test machine as a motion in limine rather a motion to suppress. The determination of whether a motion is a motion to suppress or a motion in limine does not depend on what it is labeled. It depends on the type of relief it seeks to obtain. State v. Davidson, 17 Ohio St.3d 132, 135 (1985). Thus, despite the caption, our review of appellee s motion to exclude the Intoxilyzer 8000 results indicates that it was, in fact, a motion to suppress, which if granted, would diminish appellant s ability to prosecute her. Id. {¶4} Pursuant to this court s en banc judgment and opinion in State v. Bergman, 11th Dist. Portage 2012-P-0124, 2013-Ohio-___, appellant s assignment of error has merit. The trial court s judgment is reversed, and remanded for further proceedings. TIMOTHY P. CANNON, P.J., COLLEEN MARY O TOOLE, J., concur. 2

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