State v. FunkState v. Funk
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the judgment of the Portаge County Municipal Court, Ravenna Division, holding the breath test results of the Intoxilyzer 8000 would not be admissible at trial in a prosecution for driving with a prohibited breath alcohol concentration (OVI). The issue before this court is whether a trial court, exercising its evidentiary role as gatekeeper, may pass judgment on the general reliability of a breath testing instrument where the Ohio director of health has
{¶2} On January 22, 2012, the Ohio State Highway Patrol issued defendant-appellee, Nicole R. Funk, a traffic ticket, charging her with OVI, a misdemeanor of the first degree in violation of
{¶3} On January 27, 2012, Funk entered a plea of not guilty.
{¶4} On May 15, 2012, Funk filed a Motion to Suppress, seeking “to suppress any and all evidence in this case, including tests.” Inter alia, it was 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.”
{¶5} On June 28, 2012, a suppression hearing was held, at which “the Assistant Prosecutor and Defense Attorney made oral arguments to the Court regarding the issue of the scientific reliability and admissibility of the Defendant‘s breath test result from the Intoxilyzer 8000.” At the conclusion of the hearing, the municipal court granted Funk‘s Mоtion to Suppress with respect to the breath test results, and dimissed the charge of violating
{¶6} On July 2, 2012, the State filed its Notice of Appeal.
{¶8} “[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.”
{¶9} The approрriate 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.
{¶10} As a preliminary matter, Funk argues that the appealed judgment is not a final order, as it was “limited to an initial evidentiary ruling regarding the admissibility of the results of the Intoxilyzer 8000,” and did not address the other “suppression issues” raised. Funk‘s argument has been previously rejected by this court.
{¶11} The Ohio Supreme Court has held: “Any 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
{¶12} In the present case, the municipal court‘s decision to exlude the breath test results of the Intoxilyzer 8000 resulted in the dismissal of the charge of driving with a prohibited breath alcohol concentration,
{¶13} The State argues that, purusant to Sections
{¶14} “In any criminal prosecution * * * for a violation of division (A) or (B) of [
{¶15} “For purposes of section[] * * *
{¶16} The Ohio director of health has approved the “Intoxilyzer model 8000 (OH-5)” as an “evidential breath testing instrument[] for use in determining whether а person‘s breath contains a concentration of alcohol prohibited or defined by section[]
{¶17} Funk contends 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. According to Funk, the court below could, but was not required to, admit the breath test results of the Intoxilyzer 8000.
{¶18} Consideration of Ohio Supreme Court decisions cоnstruing the relevant statutes compels a different conclusion. 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
{¶19} 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
{¶20} In Vega, the Ohio Supreme Court made 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
{¶21} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega. The court has emphasized that, when regulations are promulgated pursuant to
{¶22} Funk maintains that trial courts must retain the discretion to refuse to admit such test results to “counter balance * * * the Department of Health‘s unfettered
{¶23} 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.”
{¶24} Accordingly, the application of Vega does not sacrifice a defendant‘s due process rights, as Funk claims. Rather, a trial court retains its authority and responsibility to regulate the admission of test results. Where the State fails to demonstrate that it followed the procedures set forth by the director of health and/or that the oрerator was properly qualified, test results may be suppressed. A defendant may
{¶25} Moreover, to interpret
{¶26} When Funk‘s arguments have been raised in these other contexts, they have 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] exрert testimony to attack the general reliability or general accuracy of a legislatively determined test procedure - urine testing - as a valid scientific means of determining blood alcohol levels“) (citation
{¶27} Alternatively, it is argued that the delegation of authority to the director of health to approve 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
{¶28} “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.”
{¶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
{¶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} 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
{¶32} In a similar situation, the Ohio Supreme Court considered whether the General Assembly‘s authority statutorily provided for the admissibility of the results of
{¶33} Concerns about the reliability of the results in the absence of strict compliance could be addressed by the defense on cross-examination. Id.
{¶34} Likewise in the present case,
{¶36} The State‘s sole assignment of error is with merit.
{¶37} For the foregoing reаsons, the judgment of the Portage County Municipal Court, Ravenna Division, granting Funk‘s Motion to Suppress Evidence, 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.
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
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{¶41} 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
{¶42} 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
{¶43} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{¶44} “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 fundаmental 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
{¶45} However vague the conceptual parameters of one‘s substantive due process guarantees may be, the following principle is сlear; “[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).
{¶46} 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 results. Given the constitutional gravity of admitting unreliable results, however, and its statutory authority to act as gatekeeper regarding breath test results, the lоwer 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.
{¶47} 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 exеrcise its discretion to require evidence of general reliability of an approved breath testing device as a condition to admissibility.
{¶48} 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.
{¶49} 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 presentеd 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.
{¶50} 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 оut 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.
{¶51} Breath tests are “‘* * * generally recognized as being reasonably reliable on thе 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
{¶52} 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).
{¶53} 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 rеliability 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 it to produce evidence of the Intoxilyzer 8000‘s reliability, independent and irrespective of the contents of the
{¶54} When an appellate court [**14] 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 discretion of the trial cоurt, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error.” Sertz v. Sertz, 11th Dist. No. 2011-L-063, quoting Beechler, 2010-Ohio-1900 at ¶ 67.
{¶55} 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.