State v. ConsoloState v. Consolo
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
Edwin R. O‘Day, 167 Royal Oak Drive, Aurora, OH 44202, and Joseph C. Patituce, Patituce & Associates, LLC, 26777 Lorain Road, Suite 708, North Olmsted, OH 44070 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
OPINION
{¶1} Plaintiff-appellant, the State of Ohio, appeals the August 30, 2012 Journal Entry of the Portage County Municipal Court, Ravenna Division, suppressing the defendant-appellee, William F. Consolo, Jr.‘s breath test results. The issues before this court are whether the State bears the burden of producing evidence of the general, scientific reliability of the Intoxilyzer 8000 when challenged in a motion to suppress; whether the
{¶2} On December 19, 2011, the Streetsboro Police Department issued Consolo a traffic ticket, charging him with OVI, a misdemeanor of the first degree in violation of
{¶3} On December 23, 2011, Consolo entered a plea of not guilty.
{¶4} On February 21, 2012, Consolo filed a Motion to Suppress, seeking, inter alia, to suppress the breath test results of the Intoxilyzer 8000. As grounds for suppression, Consolo argued that the breath test was not conducted in accordance with the regulations of the Ohio Department of Health as set forth in Chapter 3701-53-02 of the
{¶5} On May 11, 2012, Consolo filed a Supplement to Motion to Suppress, arguing, as an additional reason to suppress the breath test results, that the samples were not taken in accordance with
{¶6} On August 29, 2012, a suppression hearing was held. Mary Martin, the Program Administrator for Alcohol and Drug Testing at the Ohio Department of Health, testified on behalf of the State. Martin testified that she was trained in the operation of
{¶7} Martin explained that a “dry gas control” is a “known mixture of ethanol * * * that has a known target value[.] * * * If the instrument can read the dry gas control within an appropriate range * * * that shows that the instrument is in proper working order.”1
{¶8} With respect to
{¶9} Consolo‘s Subject Test Report was introduced into evidence. The Report contained the following Test Information:
| Test | BrAC (g/210L) | Time |
|---|---|---|
| Air Blank | 0.000 | 02:57 |
| Diagnostic | VAC/OK | 02:57 |
| Air Blank | 0.000 | 02:58 |
| Dry Gas Control | 0.100 | 02:58 |
| Air Blank | 0.000 | 02:58 |
| Subject Test 1 | 0.162 | 03:00 |
| Air Blank | 0.000 | 03:00 |
| Air Blank | 0.000 | 03:03 |
| Subject Test 2 | 0.146 | 03:03 |
| Air Blank | 0.000 | 03:04 |
| Dry Gas Control | 0.100 | 03:04 |
| Air Blank | 0.000 | 03:05 |
{¶10} Martin testified that the term “subject test,” as used in
{¶11} Martin further testified that Subject Tests 1 and 2 are readings of actual breath samples taken from the test subject, i.e., Consolo. She testified that “you have to have two subject samples to have a valid subject test,” and that “the lower of the two [is] the chargeable per se level.”
{¶12} Finally, Martin testified that, because of confusion as to whether the subject test contained in
{¶13} On August 30, 2012, the municipal court issued a Journal Entry, granting Consolo‘s Motion to Suppress with respect to the breath test results produced by the Intoxilyzer 8000. Relying on the Johnson decision, the court held that, “when a defendant raises a general, scientific attack on the reliability of the Intoxilyzer 8000, it is the State‘s burden to produce certain evidence to convince the Court that the results
{¶14} The municipal court further held that
{¶15} Finally, the municipal court found that “the Ohio Department of Health has unilaterally changed the records of Defendant‘s breath test.”
{¶16} For the foregoing reasons, the municipal court dismissed the violation of
{¶17} On September 5, 2012, the State filed its Notice of Appeal and a Motion to Stay the Execution of Judgment.
{¶18} On appeal, the State raises the following assignments of error:
{¶19} “[1.] [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.”
{¶20} “[2.] The Portage County Municipal Court erred in finding the testing protocol for the Intoxilyzer 8000 did not comply with
{¶21} “[3.] The Portage County Municipal Court erred in excluding the results of the Intoxilyzer 8000 test based on the court‘s finding that the records of Consolo‘s breath test results had been changed by the Ohio Department of Health.”
{¶22} 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.
{¶23} Where, however, the issue requires the consideration of factual evidence, a reviewing court must defer to the trial court‘s factual findings, if supported by competent, credible evidence. State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 41. The reviewing court will then independently determine whether the facts satisfy the applicable legal standard. Id.; Kirtland Hills v. Kunka, 11th Dist. No. 2012-L-095, 2013-Ohio-738, ¶ 16 (“[o]nce the appellate court accepts the trial court‘s factual determinations, the appellate court conducts a de novo review of the trial court‘s application of the law to these facts“) (citation omitted).
{¶24} In its first assignment of error, the State argues that, pursuant to Sections
{¶25} The Johnson case, relied upon by the municipal court, has been reversed. State v. Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440, ¶ 32 (“the legislature has allowed the director of the department of health to determine that the Intoxilyzer 8000 is
{¶26} The first assignment of error is with merit.
{¶27} In the second assignment of error, the State argues that the municipal court erred in its interpretation of
{¶28} “In the absence of any definition of the intended meaning of words or terms used in a legislative enactment they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” Baker v. Powhatan Mining Co., 146 Ohio St. 600, 67 N.E.2d 714 (1946), paragraph three of the syllabus;
{¶29} In the interpretation of administrative regulations, “considerable deference should be accorded to an agency‘s interpretation of rules the agency is required to administer.” State ex rel. Celebrezze v. Natl. Lime & Stone Co., 68 Ohio St.3d 377, 382, 627 N.E.2d 538 (1994); Swallow v. Indus. Comm. of Ohio, 36 Ohio St.3d 55, 57, 521 N.E.2d 778 (1988) (“courts * * * must give due deference to an administrative interpretation formulated by an agency that has accumulated substantial expertise, and to which the General Assembly has delegated the responsibility of implementing the
{¶30} “[T]he director of health shall 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.”
{¶31} The issue herein is whether the term “subject test” refers to the test of an individual yielding the final result, or whether it refers to the two breath samples necessary to yield the final result. Any confusion on this issue does not derive from the words of the regulation, but from the fact that the Subject Test Form designated the two breath samples as “Subject Test 1” and “Subject Test 2.” Such confusion is readily dispelled in light of the Department of Health‘s interpretation of its own regulation. According to Martin‘s uncontradicted testimony, a dry gas control is to be performed twice, once at the beginning of the testing procedure and again at the end. This is the way the manufacturer trained Martin in the Intoxilyzer 8000‘s operation, and, in turn, this is the way the Department of Health has trained law enforcement personnel. We further note that the dry gas control is performed automatically as part of the testing sequence, i.e., the operator does not initiate the dry gas control, rather, the Intoxilyzer is
{¶32} Other appellate courts that have considered this issue have reached the same conclusion. In State v. Kormos, 12th Dist. No. CA2011-08-059, 2012-Ohio-3128, the court of appeals reasoned:
{¶33} [I]t is quite clear that a “subject test” is synonymous with running the Intoxilyzer 8000 on a single “subject,” i.e., “individual” under law enforcement‘s control. Because the language set forth by the Health Department is clear and definite, we must apply it as written and hold that there is only one “subject” being tested during any one breathalyzer test. See Kneisley v. Lattimer-Stevens Co., 40 Ohio St.3d 354, 357, 533 N.E.2d 743 (1988). It follows that the items listed in the “Subject Test Report” form, including “Subject Test 1” and “Subject Test 2,” are simply recurring components of the same breathalyzer test, where one subject blows twice before reaching the end result.
Id. at ¶ 16. Accord Cincinnati v. Nicholson, 1st Dist. No. C-120332, 2013-Ohio-708, ¶ 11.
{¶34} The second assignment of error is with merit.
{¶35} In the third assignment of error, the State argues that the municipal court erred in its determination that a change in the data displayed on the Ohio Department of Health‘s website constituted a change in Consolo‘s records, warranting their suppression. Again, we agree.
{¶36} The issue of what information the Ohio Department of Health chooses to publish on its website, and how that information is displayed, is irrelevant to the issue of whether the bodily substance was “analyzed in accordance with methods approved by the director of health” and “by an individual possessing a valid permit.”
{¶37} The third assignment of error is with merit.
{¶38} For the forgoing reasons, the judgment of the Portage County Municipal Court, Ravenna Division, suppressing Consolo‘s breath test results and dismissing the OVI charge for violating
CYNTHIA WESTCOTT RICE, J., concurs,
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
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{¶42} 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).
{¶43} 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
{¶44} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{¶45} “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).
{¶46} However vague the conceptual parameters of one‘s substantive due process guarantees may be, the following principle is clear; “[substantive] * * * due
{¶47} The trial court was aware that other courts had deemed the Intoxilyzer 8000 unreliable even though it was approved. Against this backdrop, the court ordered the state to establish the general reliability of the Intoxilyzer 8000 before admitting the results. Given the constitutional gravity of admitting unreliable results, however, and its statutory authority to act as gatekeeper regarding breath test results, the lower court‘s decision to require the state to produce evidence of the machines reliability was an eminently reasonable and sound legal decision. “[A]n abuse of discretion is the trial court‘s ‘failure to exercise sound, reasonable, and legal decision-making.‘” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black‘s Law Dictionary (8 Ed.Rev.2004) 11.
{¶48} 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.
{¶49} 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.
{¶50} 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
{¶51} 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 the defense asserts 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.
{¶52} 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
{¶53} 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).
{¶54} 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 ordered the state 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.
{¶55} 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 appellate review). By contrast, where the issue on review has been confined to the
{¶56} 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.