STATE OF OHIO, Plaintiff-Appellant, - vs - BRANDY M. COLLAZO, Defendant-Appellee.
CASE NO. 2012-L-067
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
February 4, 2013
[Cite as State v. Collazo, 2013-Ohio-439.]
DIANE V. GRENDELL, J.
Criminal Appeal from the Painesville Municipal Court, Case No. 12 TRC 607. Judgment: Reversed and remanded.
Joseph Hada, The Law Offices of Saia & Piatt, Inc., 1392 SOM Center Road, Mayfield Heights, OH 44124 (For Defendant-Appellee).
O P I N I O N
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the June 1, 2012 Judgment Entry of the Painesville Municipal Court, suppressing the result of a breath test performed on defendant-appellee, Brandy M. Collazo, using an Intoxilyzer 8000. The issue before this court is whether a trial court, exercising its evidentiary role as gatekeeper, may entertain a challenge to the results of a breath testing instrument where the Ohio director of health has approved such instrument for determining the concentration of alcohol in a person‘s breath. For the following reasons, we reverse the decision of the court below.
{¶3} On February 14, 2012, Collazo entered a plea of “not guilty.”
{¶4} On March 27, 2012, Collazo filed a Motion to Suppress/Limine, seeking, inter alia, “to preclude the State from introducing at trial any testimony or test results on the Intoxilyzer 8000,” on the grounds that “this evidence is unreliable and bears no relevance to the instant case and the prejudicial effect of its admission would deny her a fair and impartial trial.”
{¶5} On May 15, 2012, a hearing was held on the Motion to Suppress/Limine. Collazo asserted that the Intoxilyzer 8000 “had not been shown to be accurate and reliable and submitted that the results should be inadmissible unless the State produced evidence that convinced the Court that the testing met general standards of accuracy and reliability.” The State countered “that it did not have to submit evidence of the scientific accuracy and reliability of the machine and, moreover, that if the State shows compliance with the [Ohio Department of Health] rules [the] Court is required to admit the breath test results.”
{¶6} On June 1, 2012, the municipal court issued a Judgment Entry, granting Collazo‘s Motion. The court concluded that “the State has not persuasively shown the reliability of the Intoxilyzer 8000,” and ordered “that the result of the breath test produced by the Intoxilyzer 8000 is hereby suppressed and cannot be introduced at trial.”
{¶7} On June 7, 2012, the State filed its Notice of Appeal.
{¶9} On appeal, the State raises the following assignment of error:
{¶10} “[1.] The Trial Court erred in finding that the breath tests produced by the Intoxilyzer 8000 [are] inadmissible as evidence at trial.”
{¶11} The State argues that, pursuant to the provisions of
{¶12} 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.
{¶13} “In any criminal prosecution * * * for a violation of division (A) or (B) of [
{¶14} “For purposes of section[] * * *
{¶15} The Ohio director of health has approved the “Intoxilyzer model 8000 (OH-5)” as an “evidential breath testing instrument[] for use in determining whether a person‘s breath contains a concentration of alcohol prohibited or defined by section[]
{¶16} Both the municipal court and Collazo rejected the State‘s argument, contending that the use of permissive language in the OVI statute, i.e., the word “may” in the phrase “the court may admit evidence on the concentration of alcohol,” recognizes the trial court‘s discretion to admit and to exclude evidence.
{¶17} Consideration of Ohio Supreme Court decisions construing the relevant statutes compels a different conclusion from the one advanced by the municipal court/Collazo. In light of these decisions, the trial court‘s discretion to admit or exclude evidence is restricted to determining whether the breath test was conducted “in accordance with methods approved by the director of health” and “by an individual possessing a valid permit.” The court‘s discretion under
{¶18} The lead Ohio Supreme Court case on this issue is State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), 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
{¶19} In Vega, the Ohio Supreme Court made it clear that “an accused may not make a general attack upon the reliability and validity of the breath testing instrument.” Id. at 190. The court explained that, by enacting
{¶20} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega. The court has emphasized that, when regulations are promulgated pursuant to
{¶22} When duly challenged, the State must demonstrate that the bodily substance was “analyzed in accordance with methods approved by the director of health” and “by an individual possessing a valid permit.”
{¶23} Accordingly, Vega does not impose an “all or nothing approach to the evidential issues surrounding breath testing,” as Collazo suggests. Rather, a trial court still retains its authority and responsibility to regulate the admission of test results.
{¶24} Moreover, to interpret
{¶25} When Collazo‘s argument has been raised in these other contexts, it has similarly been rejected. See State v. Klintworth, 4th Dist. No. 10CA40, 2011-Ohio-3553, ¶ 12 (“this court will not allow the defendant to us[e] expert testimony to attack the general reliability or general accuracy of a legislatively determined test procedure - urine
{¶26} Alternatively, it is argued that the delegation of authority to the director of health to approach testing methods and devices violates the separation of powers doctrine and infringes upon the trial court‘s regulation of the admission of expert testimony under
{¶27} “The supreme court shall prescribe rules governing practice and procedure in all courts of the state * * *. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
{¶28} 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
{¶29} The Ohio Supreme Court, in State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, expressly characterized
{¶30} It has also been observed that “the legislature has created standards for the admissibility of evidence in many instances.” State v. Phipps, 3rd Dist. No. 2-03-39, 2004-Ohio-4400, ¶ 12.2
{¶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 compliance, rather than the strict compliance
{¶32} Concerns about the reliability of the results in the absence of strict compliance could be addressed by the defense on cross-examination. Id.
{¶33} Likewise in the present case,
{¶34} In the present case, Collazo introduced no evidence on which the municipal court could have concluded that the test results of the Intoxilyzer 8000 were
{¶35} The State‘s sole assignment of error is with merit.
{¶36} For the foregoing reasons, the judgment of the Painesville Municipal Court, granting Collazo‘s Motion to Suppress/Limine, is reversed, and this cause is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee.
MARY JANE TRAPP, J., concurs,
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellant, - vs - BRANDY M. COLLAZO, Defendant-Appellee.
CASE NO. 2012-L-067
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
{¶37}
{¶38}
{¶39}
{¶40} 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).
{¶41} 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
{¶42} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{¶43} “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 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).
{¶44} 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} 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
{¶46} 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.
{¶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 “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.
{¶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.
{¶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
{¶50} 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).
{¶51} 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
{¶52} 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.