Case Information
*1
[Cite as
Parma v. Schoonover
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100152
CITY OF PARMA
PLAINTIFF vs.
SCOTT SCHOONOVER
DEFENDANT-APPELLEE [Appeal by Department of Health]
JUDGMENT:
REVERSED Criminal Appeal from the
Parma Municipal Court
Case No. 12 TRC 17454
BEFORE: Jones, P.J., S. Gallagher, J., and Keough, J.
RELEASED AND JOURNALIZED: February 6, 2014 *2 ATTORNEYS FOR NON-PARTY APPELLANT
Mike DeWine
State Attorney General
Lyndsay Nash
Assistant State Attorney General
30 East Broad Street, 26th Floor
Columbus, Ohio 43215
ATTORNEY FOR PLAINTIFF
Richard A. Neff
614 W. Superior Avenue
Suite 1310
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
For Scott Schoonover
Hector G. Martinez, Jr.
Hector G. Martinez, Jr., Co.
4130 State Route 306
Suite 240
Willoughby, Ohio 44094
LARRY A. JONES, SR., P.J.:
{¶1} Non-party appellant, the Ohio Department of Health (“ODH”), appeals the trial court’s denial of its motion to quash a subpoena. Finding merit to the appeal, we reverse.
I. Procedural History
In 2012, defendant-appellee, Scott Schoonover, was charged in Parma Municipal Court with operating a vehicle while under the influence of alcohol, prohibited blood alcohol content, failure to display his operator’s license, no headlights, and a speeding violation. Schoonover filed a motion to suppress, which was set for an oral hearing. He
also served a subpoena duces tecum on an employee of the ODH seeking
a copy of any and all records maintained by the Ohio Dept. of Safety relating to the Intoxilyzer 8000, serial number 90-004181, located at the Parma Police Department.
The subpoena requested numerous documents that were divided into categories “a - k.” The ODH determined that it would provide Schoonover with documents to satisfy categories “b - i,” but filed a motion to quash the subpoena as it related to categories “a,” “j,” and “k.” Categories “a,” “j,” and “k” included:
a. Any and all computerized online breath archives data, also knows as “COBRA” data;
* * *
j. Any and all correspondence, including but not limited to, letters, emails, memorandums, correspondence, notes, text messages, internal correspondence regarding the Intoxilyzer 8000 among and between Ohio *4 Dept. of Health employees and/or agents, Ohio Dept. of Public Safety employees and/or agents, and CMI, Inc. employees and/or agents.
k. Any and all communications between Ohio Dept. of Health and the Parma Police Dept. and/or any prosecuting or assisting prosecuting attorney for the City of Parma about the Intoxilyzer 8000.
{¶5}
In its motion to quash, the ODH argued that categories “a” and “j” should be
quashed pursuant to Ohio Crim.R. 17(C) as unreasonable or oppressive and that no
documents existed as to category “k.” The ODH also outlined the four-factor test set
forth in
In re Subpoena Duces Tecum Served upon Attorney Potts
, 100 Ohio St.3d 97,
The trial court did not hold a hearing on the motion to suppress and granted the ODH’s motion to stay the case pending appeal. The ODH filed a notice of appeal and raised one assignment of error for our
review:
[I.] The trial court abused its discretion by ordering [ODH] to produce documents related to the general reliability of the Intoxilyzer 8000 without holding an evidentiary hearing.
II. Law and Analysis
Although discovery orders are generally interlocutory, denials of motions to
quash subpoenas served on non-parties are final appealable orders.
Tisco Trading USA,
Inc. v. Cleveland Metal Exchange, Ltd.
, 8th Dist. Cuyahoga No. 97114,
Supreme Court has adopted a four-part test with regard to a motion to quash filed pursuant
to Crim.R. 17(C).
Potts
, 100 Ohio St.3d 97,
hearing, at which the party filing the subpoena duces tecum must convince the court that the information sought in the subpoena meets the Nixon test.” Id. at ¶ 14. “At the hearing, which may be held in camera, the proponent of the subpoena must demonstrate that the subpoena is not unreasonable or oppressive by showing that the request satisfies the Nixon factors.” Id. at ¶ 16.
{¶11}
In
State v. Baker
, 12th Dist. Warren No. CA2009-06-079,
{¶12} On the day of the motion to suppress hearing, the prosecutor filed a motion to quash the defendant’s subpoena duces tecum. The trial court proceeded with the motion to suppress hearing and held its ruling on the motion to quash in abeyance. It eventually granted the prosecutor’s motion to quash with respect to the BAC DataMaster, but did so without holding an evidentiary hearing.
{¶13} On appeal, the Twelfth Appellate District determined that the trial court erred in granting the motion to quash without first holding an evidentiary hearing. The court noted that the “ Potts decision expressly mandated that a trial court conduct a separate evidentiary hearing to determine whether a subpoena duces tecum is unreasonable or oppressive under Nixon .” Id. at ¶ 21, citing Potts at ¶ 14-15. Thus, pursuant to Potts , once a motion to quash a subpoena duces tecum is
filed, the proponent of the subpoena bears the burden of showing, at an evidentiary hearing, that he or she can meet the four-factors set forth in Nixon to show that the subpoena is not unreasonable or oppressive. *7 In the case at bar, the trial court summarily ruled on the ODH’s motion to
quash without holding the requisite evidentiary hearing and applying the Nixon test. There is also no evidence that the trial court solicited evidence from Schoonover, the proponent of the subpoena, on the four Nixon factors; in fact, the record indicates that the trial court denied the motion to quash within a day of when it was filed. Because the trial court did not hold an evidentiary hearing to address the
Nixon test, we reverse the judgment of the trial court and remand the case to the trial court to hold an evidentiary hearing and apply the appropriate standard to the motion to quash.
{¶17} The sole assignment of error is sustained. Judgment reversed and case remanded.
It is ordered that appellant recover of appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH
SEPARATE OPINION
SEAN C. GALLAGHER, J., CONCURRING: While I concur with the judgment and analysis of the majority, I write
separately to give some context to the trial court’s decision to deny the state’s motion to quash the subpoena. Municipal courts across Ohio are inundated with challenges to the
admissibility of results produced by the Intoxilyzer 8000. Many courts are admitting the
test results as reliable because of the approval of these machines by the Director of the
Ohio Department of Health.
See generally State v. Bergman,
11th Dist. Portage No.
2012-P-0124,
test results produced by the Intoxilyzer 8000 represent a general attack on breath testing
precluded by
State v. Vega,
court.