State v. FunkState v. Funk
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 fоr 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 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 hеr with OVI, a misdemeanor of the
first degree in violation of
{¶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
{¶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
{¶12}
In the present case, the municipal court’s decision to exlude the breаth
test results of the Intoxilyzer 8000 resulted in the dismissal of the charge of driving with
a prohibited breath alcohol concentration,
[
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 * * *.”
{¶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.”
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 conduсted “in accordance with methods approved by the director of health”
and “by an individual possessing a valid permit.” The court’s discretion under
make a general attack upon the reliability and validity of the breath testing instrument.”
Id. at 190. The court explained that, by enacting
Vega . The court has emphasized that, when regulations are promulgated pursuant to
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.”
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
demоnstrate that it followed the procedures 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
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 еnzyme assays.
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] еxpert 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
*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.”
approрriate 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 сompilation 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
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:
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,
not preempt the trial court’s authority to rule on the admissibility of evidence, but rather
delegate the preliminary determination rеgarding 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.”
{¶35}
Finally, we rejeсt 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.
results derived from the Intoxilyzer 8000. Rather, that statute which, by its plain
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language controls the issue in this case, vests the trial court with discretion regarding
admissibility despite approval from the director. I, therefore, respectfully dissent.
cоurt 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 violation as shown by
chemical analysis of the substance withdrawn within three hours of the time of the
alleged violation[,]” аnd “[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
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
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 and capricious government action. The fundamental rights protected
by substantive due process arise from thе 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 guarantees may be, the following principle is clear; “[substantive] * * * due
process is violated by the introduction of sеemingly 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 breath test results, the lower court’s
decision to require the state to produce evidence of the maсhines 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 read Vega as holding that under no circumstances can a trial court exercise its discretion to requirе 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 defendant
made no challenge to the trial court’s admission of his breath test result. Instead, after
the state рresented 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, аn 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, however, that, under Ohio law, a
trial court is entitled to resolve pursuant to
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). Given the foregoing pоint, 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 produce evidence of the Intoxilyzer 8000’s reliability, independent and irrespective оf 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
course, not all errors are reversible. Some are harmless; others are not рreserved 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.