STATE OF OHIO, Plaintiff-Appellant, v. MAXWELL G. CANINO, Defendant-Appellee.
CASE NO. 2012-P-0102
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
February 19, 2013
2013-Ohio-551
DIANE V. GRENDELL, J.
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 1176. Judgment: Reversed and remanded.
Dennis Day Lager, Portage County Public Defender, Mark A. Carfolo, Assistant Public Defender, and Carolyn K. Mulligan, Assistant Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeаls from the judgment of the Portage County Municipal Court, Ravenna Division, granting defendant-appellee, Maxwell G. Canino‘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
{¶2} On January 28, 2012, Canino 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
{¶3} On March 13, 2012, Canino filed a Motion to Suppress, challenging, inter alia, the results of a breath test taken by Canino at the time of the citation. He also asserted that the “testing instrument was not in proper working order,” thаt the instrument operator “lacked the necessary qualifications,” and a few additional alleged problems with the breath test. In a supplement to the Motion to Suppress, filed on July 5, 2012, Canino also argued that the “Blood Alcohol Content test result from the Intoxilyzer 8000 is inadmissible and scientifically unreliable pursuant to State vs. Johnson (2012) in Portage County Municipal Court case 2011 TRC 04090.”
{¶4} The State filed a response to the Motion to Suppress and a “Brief Regarding Intoxilyzer 8000 Hearing” on July 13, 2012. In that Brief, the State argued that it need not present evidence to establish the general reliability of the Intoxilyzer 8000, citing State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984).
{¶5} A hearing on the Motion to Suppress was held on August 22, 2012. At that hearing, the court noted that the case was an Intoxilyzer 8000 case. The State asked that the court review the State‘s Brief and take it under advisement. Canino argued that he was entitled to a hearing as to the reliability of the Intoxilyzer. The court
{¶6} In an August 23, 2012 Journal Entry, the trial court granted Canino‘s Motion to Suppress with respect to the results of the Intoxilyzer 8000. The court noted that it “limits its review of Defendant‘s Motion to Suppress solely to the admissibility of a BAC test from the Intoxilyzer 8000.” It found that the issue in the present matter was “identical” to the one in State v. Johnson. In Johnson, the trial court held that the State was required to present evidence at a hearing for the trial 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 rationale and findings in Johnson are likewise applicable to this case.” It held that the “breath test results from the Intoxilyzer 8000 are not admissible at the trial of Defendant” and that “[t]he remaining charges alleging a violation of
{¶7} On August 27, 2012, the State filed a Motion to Stay the Execution of Judgment, which was granted by the court on August 28, 2012.
{¶8} The State timely appeals and raises the following assignment of error:
{¶9} “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.”
{¶10} 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.
{¶11} We must first address Canino‘s argument that the lower court‘s August 23, 2012 Journal Entry is not a final order. Canino‘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. Canino 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.”
{¶12} “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
{¶13} 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 prejudiciаl.” (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
{¶14} 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
{¶15} 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 appears to have also occurred in the present matter, given that the court noted that the “remaining charges” under
{¶16} For the foregoing reasons, the municipal court‘s August 23, 2012 Journal Entry is a final order, properly appealed by the State pursuant to
{¶17} In its sole assignment of error, the State argues that, pursuant to the provisions of
{¶18} Canino 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 аlcohol” 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.
{¶19} 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[.]”
{¶21} 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
{¶22} 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.”
{¶23} In addition to attacks on the specific performance of a particular brеath 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.
{¶24} Despite these rulings, Canino 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 chemicаl 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.).
{¶25} Canino 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.
{¶27} Canino 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.
{¶28} “The Ohio Rules of Evidence, which were promulgated by the Supreme Court pursuant to
{¶29} 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 substances does not conflict with any Rule of Evidence. Canino 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 substancеs. On the contrary, Evidence Rule 102 states that “[t]hese rules shall not supersede substantive statutory provisions.”
{¶30} The Ohio Supreme Court, in State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, expressly characterized
{¶31} 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 cоmpliance, 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
{¶32} Likewise in the present case,
{¶33} We note that, in the present casе, Canino 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 Canino‘s Motion solely on the grounds stated in Johnson, that the State failed to
{¶34} The sole assignment of error is with merit.
{¶35} For the foregoing reasons, the judgment of the Portage County Municipal Court, Ravenna Division, granting Canino‘s Motion to Suppress and dismissing the charge of violating
TIMOTHY P. CANNON, P.J., concurs,
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
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{¶39} 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).
{¶40} 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
{¶41} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substаntive due process rights.
{¶42} “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 proрerty 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).
{¶43} 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).
{¶45} 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.
{¶46} In Vega, the court held “* * * an accused is not denied his constitutional right to present a defense nor is the stаte 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.
{¶47} 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
{¶48} 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.
{¶49} “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
{¶51} 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 ordеred 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.
{¶52} When an appellate court 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
{¶53} 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.