Case Information
*1
[Cite as
State v. Funk
,
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
STATE OF OHIO, : O P I N I O N
Plaintiff-Appellant, :
CASE NO. 2012-P-0071 - vs - :
NICOLE R. FUNK, :
Defendant-Appellee. : Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 00890.
Judgment: Reversed and remanded.
Victor V. Vigluicci , Portage County Prosecutor, and Pamela J. Holder , Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant). Dennis Day Lager , Portage County Public Defender, and John P. Laczko , Assistant Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
Plaintiff-appellant, the State of Ohio, appeals the judgment of the Portage
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 а 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 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.
{¶2} On January 22, 2012, the Ohio State Highway Patrol issued defendant- appellee, Nicole R. Funk, a traffic ticket, charging her with OVI, a misdеmeanor of the first degree in violation of R.C. 4511.19(A)(1)(a) (driving under the influence of alcohol) and (d) (driving with a prohibited breath alcohol concentration), a Speed violation, a minor misdemeanor in violation of R.C. 4511.21(C), and a Safety Belt violation, a minor misdemeanor in vioation of R.C. 4513.263.
{¶3} On January 27, 2012, Funk entered a plea of not guilty. 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.” 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 Motion to Suppress with respect to the breath test results, and dimissed the charge of violating R.C. 4511.19(A)(1)(d) (driving with a prohibited breath alcohol concentration). The court stayed proceedings on the remaining charges, pending the State’s apрeal. On July 2, 2012, the State filed its Notice of Appeal.
{¶7} On appeal, the State raises the following assignment of error: {¶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.” 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,
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. 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 R.C. 2945.67 and Crim. R. 12(J) [now (K)].” State v. Davidson , 17 Ohio St.3d 132, 477 N.E.2d 1141 (1985), syllabus. Accordingly, “[a] pretrial challenge to a breathalyzer test, if granted, destroys the state’s case under [former] R.C. 4511.19(A)(3) [prohibited breach alcohol concentration], and the state is permitted to appeal pursuant *4 to R.C. 2945.67 and Crim. R. 12[(K)(2)].” Defiance v. Kretz , 60 Ohio St.3d 1, 4, 573 N.E.2d 32 (1991).
{¶12}
In the present case, the municipal court’s decision to exlude the breath
test results оf the Intoxilyzer 8000 resulted in the dismissal of the charge of driving with
a prohibited breath alcohol concentration, R.C. 4511.19(A)(1)(d). Accordingly, it is a
final order. See State v. Miller , 11th Dist. No. 2012-P-0032,
[R.C. 4511.19] * * *, the court may admit evidence on the concentration of alcohol * * * in the defendant’s * * * breath * * * at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation.” R.C. 4511.19(D)(1)(b). “The bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.” Id. “For purposes of section[] * * * 4511.19 * * * of the Revised Code, the
director of health shall determine, or cause to be determined, techniques or methods for *5 chemically analyzing a person’s * * * breath * * * in order to ascertain the amount of alcohol * * * in the person’s * * * breath * * *.” R.C. 3701.143.
{¶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 a person’s breath contains a concentration of alcohol prohibited or defined by section[] 4511.19 * * * of the Revised Code.” Ohio Adm.Code 3701-53-02(A)(3). Funk contends that the use of permissive language in the OVI statute, i.е.,
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. Consideration of Ohio Supreme Court decisions construing 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 acсordance with methods approved by the director of health”
and “by an individual possessing a valid permit.” The court’s discretion under R.C.
4511.19(D)(1)(b) does not permit it to exclude test results based on the “scientific
accuracy and reliability” of the breath testing device, as was done in the present case.
The lead Ohio Supreme Court case on this issue is State v. Vega , 12 Ohio
St.3d 185,
make a general attack upon the reliability and validity of the breath testing instrument.”
Id. at 190. The court explained that, by enacting R.C. 4511.19, the General Assembly
“ha[s] legislatively resolved the questions of the reliability and relevancy of intoxilyzer
tests.” Id. at 188. “[The judiciary must recognize] the necessary legislative
determination that breath tests, properly conducted, are reliable irrespective that not аll
experts wholly agree and that the common law foundational evidence has, for
admissibility, been replaced by statute and rule; and that the legislative delegation was
to the Director of Health, not the court, the discretionary authority for adoption of
appropriate tests and procedures, including breath test devices.” Id. at 188-189, citing
State v. Brockway ,
Vega . The court has emphasized that, when regulations are promulgated pursuant to
R.C. 4511.19 and 3107.143, “it must be presumed that the Director of Health acted
upon adequate investigation,” and that the courts “must defer to the department’s
authority and * * * not substitute our judgment for that of the Director of Health.” State v.
Yoder ,
admit such test results to “counter balance * * * the Department of Health’s unfettered 1. In Vega , the defendant sought to challenge the intoxilyzer’s reliability through expert testimony presented at trial, whereas, in the present case the defendant seeks to exclude the intoxilyzer’s test result by placing the burden on the State to prove reliability. The differing procedural posture of Vega is not material to the relevance of its holding for the present case.
discretion in choosing instruments and promulgating rules for chemical tests.” Under Vega , however, defendants are expressly allowed to demonstrate that “there was something wrong with the test and the results were erroneous.” Id. at 189. 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.” R.C. 4511.19(D)(1)(b). Vega recognized that “[t]here is no question that the accused may * * * attack the reliability of
the specific testing procedure and the qualifications of the operator,” as well as present
“expert testimony as to testing procedures at trial going to weight rather than
admissibility.” Id. at 189. Thus, “[t]he defendant may still challenge the accuracy of his
specific test results, although he may not challenge the general accuracy of the
legislatively determined test procedure as a valid scientific means of determining blood
alcohol levels.” State v. Tannеr ,
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 procеdures set forth by the director of health and/or that the operator was properly qualified, test results may be suppressed. A defendant may *8 also challenge the accuracy of his specific test results at trial and with evidence going to the weight accorded the test results. Moreover, to interpret R.C. 4511.19(D)(1)(b) and Vega as urged by Funk
would frustrate the purpose of delegating the authority for approving methods of analyzing alcohol concentration in a person’s bodily substance. If the general reliability of a particular instrument or method could be challenged despite its approval by the director of health, then all methods currently employed by law enforcement are vulnerable. Stated otherwise, if the results produced by the Intoxilyzer 8000 may be challenged, with the State bearing the burden of proving reliability through expert testimony, then so could the results obtained from the Intoxilyzer 5000 and the various BAC DataMasters currently approved for use. In like manner, defendants could challenge previously approved techniques and methods such as gas chromatography and enzyme assays. Ohio Adm.Code 3701-53-03(A). Equally vulnеrable to challenge would be the methods used for determining concentrations of controlled substances. Ohio Adm.Code 3701-53-03(B). Finally, law enforcement would be put in the untenable position of speculating what techniques or instruments might be acceptable to the courts, with the only recourse being trial and error and appeal throughout Ohio’s more than 88 county and municipal jurisdictions. 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] expert tеstimony 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
*9
omitted); State v. Massie , 2nd Dist. No. 2007 CA 24,
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 Evidence Rule 702. “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.” Ohio Constitution, Article IV,
Section 5(B). Thus, “the Ohio Rules of Evidence, which were promulgated by the
Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must
control over subsequently enacted inconsistent statutes рurporting to govern evidentiary
matters.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward ,
appropriаte methods for determining the amount of alcohol in a defendant’s bodily *10 substances does not conflict with any Rule of Evidence. Funk refers to Evidence Rules 104(A) and 702; but nothing in these Rules 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 substances. On the contrary, Evidence Rule 102 states that “[t]hese rules shall not supersede substantive statutory provisions.” The Staff Notes elaborate further by stating, “[t]he Rules of Evidence * * * are not an exhaustive comрilation of the rules governing evidence questions, nor are the rules preemptive as to subjects that they do not address.” The Ohio Supreme Court, in State v. Mayl , 106 Ohio St.3d 207, 2005-
Ohio-4629, 833 N.E.2d 1216, expressly characterized R.C. 4511.19(D)(1) as a “three- paragraph gate-keeping statute.” Id. at ¶ 20. Where R.C. 4511.19(D)(1) is satisfied, it does “no[t] matter under which portion of R.C. 4511.19(A) a person is charged, the state has the opportunity to offer the results of a ‘bodily substance’ test to show either impairment * * * or to show that the statutory concentrations of alcohol or drugs have been exceeded.” Id. at ¶ 19. It has alsо 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,
General Assembly’s authority statutorily provided for the admissibility of the results of 2. As examples, the Third District Court of Appeals noted: R.C. 2907.02(D) (limiting the admissibility of evidence regarding a victim’s sexual activity in prosecutions for Rape); R.C. 4513.263(F) (limiting the permissible uses of evidence regarding the use of occupant restraining devices); R.C. 2925.51(A) (providing that laboratory reports constitute “prima-facie evidеnce of the content, identity, and weight” of controlled substances); and R.C. 2317.47 (providing for blood-grouping tests to determine identity or paternity).
field sobriety tests based on substantial compliance, 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,
compliance could be addressed by the defense on cross-examination. Id. Likewise in the present case, R.C. 3701.143 and R.C. 4511.19(D)(1) do
not preempt the trial court’s authority to rule on the admissibility of evidence, but rather
delegate the prеliminary determination regarding the scientific reliability of testing
devices to the director of health. That determination is not conclusive as to the ultimate
admissibility of the test results. As noted above, the State must demonstrate that the
bodily substance was “analyzed in accordance with methods approved by the director of
health.” R.C. 4511.19(D)(1)(b). The defendant may always challenge the accuracy of
his or her specific test results and the qualifications of the person administering the test
and otherwise strive to discredit the weight to be given the specific test results. Vegа ,
{¶35}
Finally, we reject Funk’s argument that the municipal court cannot take
judicial notice of the Intoxilyzer 8000’s reliability. Ohio Civil Rule 44.1(A)(1) states that,
“[j]udicial notice shall be taken of the rules of the supreme court of this state and of the
decisional, constitutional, and public statutory law of this state.” Administrative rules
“enacted pursuant to a specific grant of legislative authority” have the “force and effect
of law.” Doyle v. Ohio Bur. of Motor Vehicles ,
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. R.C. 4511.19(D)(1)(b) does not mandate admissibility of breath test
results derived from the Intoxilyzer 8000. Rather, that statute which, by its plain *13 language controls the issue in this case, vests the trial court with discretion regarding admissibility despite approval from the director. I, therefore, respectfully dissent. R.C. 3701.143 empowers the director to approve breath testing devices, and R.C. 4511.19(D)(1)(b) grants trial courts the discretion to admit the results from approved devices without further proof of reliability when circumstances warrant. Although some claim the contrary, nobody is correct all the time. In recognizing human fallibility, the legislature had the wisdom to vest within the trial court the discretion per R.C.4511.19(D)(1)(b) to conduct further inquiry when there is an issue as to the reliability of an аpproved breath testing device before admitting the results. R.C. 4511.19(D)(1)(b) states that “[i]n any criminal prosecution or juvenile
court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant’s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged viоlation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation[,]” and “[t]he bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.” (Emphasis added.) 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
*14
make the provision in which it is contained optional, permissive, or discretionary * * *.”
Dorrian v. Scioto Conservancy Dist. ,
test absent proof from the state that the Intoxilyzer 8000 is generally reliable, a decision
consistent with the discretion it possesses under R.C.4511.19(D)(1)(b). As reliability
presents a threshold admissibility issue, reliability, as opposed to the weight to be
afforded any admitted evidence, is one for the trial court. Knott v Revolution Software
Inc.
the defendant’s substantive due process rights. “Substantive due process, [although an] ephemeral concept, protects
specific fundamental rights of individual freedom and liberty from deprivation at the
hands of arbitrary аnd 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
*15
available.” State v. Small, 162 Ohio App.3d. 375,
process guarаntees 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,
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 breаth 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,
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 reаd 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. 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. Threshold admissibility was not at issue in Vega. That is, the defendаnt
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,
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. 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, howevеr, that, under Ohio law, a trial court is entitled to resolve pursuant to R.C. 4511.19(D)(1)(b). 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. Hаmilton County , 87 Ohio App.3d 670; Oakbrook Realty Corp. v. Blout , 48 Ohio App.3d 69, 70 (10th Dist. 1988). 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 it to produсe evidence of the Intoxilyzer 8000’s reliability, independent and irrespective of the contents of the *18 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. 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
coursе, 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 court, 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 ,
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.