2013 Ohio 2611
Ohio Ct. App.2013Background
- State appeals suppression of breath test results from the Intoxilyzer 8000 in Consolo in Portage County Municipal Court.
- Consolo charged with OVI and a prohibited-BAC count; suppression motion filed February 21, 2012, and supplemented in May 2012.
- Suppression hearing held August 29, 2012; Ohio Department of Health witness testified about dry gas controls and device operation.
- Test reports showed two readings labeled Subject Test 1 and Subject Test 2, with dry gas controls at the start and end of the sequence.
- Municipal court suppressed the results, relying on Johnson and finding no dry gas control between Subject Test 1 and 2 and claiming DOH records were altered on the website.
- Court of Appeals reverses, holding the State need not prove general reliability; clarifies the dry gas control interpretation and rejects the website-record alteration argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State must prove general reliability of the Intoxilyzer 8000. | Consolo argues general reliability is required. | Consolo relies on Vega to exclude general reliability requirement. | Merit to State; no general reliability proof required. |
| Whether Ohio Adm.Code 3701-53-04(B) requires a dry gas control before and after every subject test as interpreted by the DOH. | State argues regulation interpretation supports admissibility. | Defense argues the court misinterpreted the rule. | Merit to State; DOH interpretation correct; two dry gas controls per subject test. |
| Whether a change in DOH's website display of test records constitutes a change in the breath test records warranting suppression. | State contends altered website records undermine reliability. | Consolo argues post hoc website changes affect admissibility. | Merit to State; original Subject Test Report remains unaltered; website display is irrelevant to admissibility. |
Key Cases Cited
- State v. Johnson, 2013-Ohio-440 (11th Dist. 2013) (general reliability not required for admissibility of breath test)
- State v. Miller, 2012-Ohio-5585 (11th Dist. 2012) (reliability attack on intoxilyzers not necessary for admissibility)
- State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984) (threshold admissibility; general reliability not required in Vega context)
- Cincinnati v. Nicholson, 2013-Ohio-708 (1st Dist. 2013) (interpretation of breath-test regulations; subject test components)
- Kneisley v. Lattimer-Stevens Co., 40 Ohio St.3d 354, 533 N.E.2d 743 (1988) (ordinary meaning and contextual interpretation of statutes/regulations)
- State v. Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440 (2013) (regulatory authority to determine device reliability and admissibility scope)
- Sertz v. Sertz, 11th Dist. No. 2011-L-063 (2011) (review of discretionary trial-court decisions on evidentiary matters)