State v. JonesState v. Jones
Joseph C. Patituce, Patituce & Associates, LLC, 26777 Lorain Road, Suite 708, North Olmsted, OH 44070 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} The state of Ohio appeals the judgment of the Portage County Municipal Court, Ravenna Division, which granted appellee Kyle R. Jones’ motion to suppress the results of his Intoxilyzer 8000 test. Jones asserted a general challenge to the reliability of the Intoxilyzer 8000. He also challenged the specific testing procedure used for his test. For the reasons that follow, we reverse and remand.
{¶3} Subsequently, Jones filed a motion to suppress, challenging his breath-test results. He argued the specific Intoxilyzer 8000 device used to test his breath is not reliable due to prior errors it has allegedly made. He also argued his test was not administered in compliance with
{¶4} The state filed a brief in opposition, arguing that Jones’ motion to suppress constituted a general challenge to the reliability of the Intoxilyzer 8000. The state argued it was not required to present evidence that the Intoxilyzer 8000 is reliable because the legislature had delegated this determination to the Director of Health and the Supreme Court of Ohio upheld this delegation of authority in State v. Vega, 12 Ohio St.3d 185 (1984).
{¶5} At the outset of the suppression hearing, defense counsel stated Jones was not making a general attack on the Intoxilyzer 8000. Instead, he argued that the specific machine used in this case is not reliable and that the state was required to show this machine is in proper working order.
{¶6} In the early morning hours of November 12, 2011, State Trooper Thomas Hermann clocked Jones driving 58 mph in a 45 mph zone. The trooper stopped Jones. Upon approaching Jones’ vehicle, the trooper detected an odor of an alcoholic
{¶7} Mary Martin, the Ohio Department of Health Program Administrator for Alcohol and Drug Testing, testified she is responsible for reviewing and revising the Department‘s rules and regulations. She is familiar with all Department-approved breath-testing instruments. She has been trained regarding the construction and operation of the Intoxilyzer 8000 by its manufacturer. She said that as part of her job, she trains judges, prosecutors, and defense attorneys regarding the Intoxilyzer 8000.
{¶8} Ms. Martin said that upon completion of a breath test by the Intoxilyzer 8000, the instrument prints out a report of the defendant‘s test called a “Subject Test Report,” which includes the offender‘s personal information, his arrest information, and his test information.
{¶9} Ms. Martin said that a “subject test” is not defined in the Administrative Code or the Revised Code. However, she said a “subject test” is the entire breath test as reported in the “Subject Test Report.” She said that is what was meant by the phrase “subject test” when
{¶10} Ms. Martin said that, pursuant to
{¶11} Ms. Martin identified Jones’ Subject Test Report printed by the Intoxilyzer 8000. The report shows that the instrument took two breath samples from Jones. Before Jones gave his first breath sample, the Intoxilyzer 8000 conducted a dry gas control test as part of its calibration process. The machine ran another dry gas control test after Jones gave his second breath sample.
{¶12} Ms. Martin said the original Subject Test Report form, which was used for Jones’ test, referred to the two breath samples that are blown into the Intoxilyzer 8000 as “Subject Test 1” and “Subject Test 2.” She said the original form and
{¶14} In contrast to the database, the Department has also created a website, which contains all test results uploaded to the Department‘s database. While the data uploaded by the Intoxilyzer 8000 instruments from the Subject Test Reports cannot be changed, the forms used by the Department‘s website to report the data can be and occasionally are changed to, e.g., include or exclude certain data in the database, to change the order in which data is included, to increase the size of certain fields to allow additional data to be included to correctly reflect the data in the database, or to change the title of a field.
{¶15} Ms. Martin said that when the Department changed the language on the Subject Test Report form in November 2011 from “Subject Test 1” and “Subject Test 2” to “Subject Sample 1” and “Subject Sample 2,” this change was reflected on all Subject Test Report forms printed by the Intoxilyzer 8000 after that date. This change was also reflected on the Department‘s website. This change did not, however, alter the actual test results or any data contained in the Subject Test Reports.
{¶16} Ms. Martin said the website is not meant to provide evidence. The breath instrument itself prints a Subject Test Report of a defendant‘s breath test, which is used as evidence in court. In contrast, the purpose of the website is to provide information
{¶17} Ms. Martin said that the data in all Subject Test Reports is uploaded to the Department‘s database and that the Department retains the data contained in the database indefinitely.
{¶18} Finally, Patrick Sullivan, Breath-Testing Inspector for the Department, testified he instructs on the proper operation of the Intoxilyzer 8000. He said he certified the subject Intoxilyzer 8000 used to test Jones’ breath as working properly as of the date of Jones’ test. Following Mr. Sullivan‘s testimony, Jones’ attorney withdrew his challenge to the reliability of this specific instrument.
{¶19} Following the presentation of the evidence, the court entered judgment granting Jones’ motion to suppress the results of his breath test. The court found that Jones made a general attack on the reliability of the Intoxilyzer 8000, which placed the burden on the state to prove the instrument is reliable. The court concluded that, because the state did not produce such evidence, Jones’ motion to suppress was granted and the per-se violation was dismissed.
{¶20} The court further found that, pursuant to the express language of the Ohio Administrative Code, a dry gas control must be performed before and after every subject test and that, since a dry gas control was not run between Subject Test 1 and Subject Test 2, Jones’ test did not comply with the Administrative Code and the test results were inadmissible.
{¶21} Further, the court found that by changing the terms used to refer to Jones’ breath samples from “Subject Test 1” and “Subject Test 2” to “Subject Sample 1” and
{¶22} The trial court granted the state‘s motion to stay execution of the judgment pending appeal.
{¶23} The state appeals the trial court‘s judgment, asserting three assignments of error. For its first assigned error, the state alleges:
{¶24} “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.”
{¶25} We review a trial court‘s legal determinations at a suppression hearing de novo. State v. Dijsheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19.
{¶26} Jones argued below that he was not making a general challenge to the reliability of the Intoxilyzer 8000. Instead, he argued the specific device used to test his breath samples was not reliable due to its prior alleged errors. However, this court has held that a challenge to a breath-test result on the ground that the specific device has previously malfunctioned is prohibited as a general challenge to the reliability of the instrument. State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702, ¶91 (11th Dist.). As a result, we agree with the trial court‘s finding that Jones made a general attack on the
{¶27} In State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, this court followed the Supreme Court of Ohio‘s decision in Vega, supra, in acknowledging that the General Assembly in
{¶28} Further following Vega, this court in Carter stated that
{¶29} This court held that since the General Assembly has legislatively determined that the Intoxilyzer 8000 is reliable, it must be presumed this device is reliable. Carter at ¶37. Therefore, this court held that the state did not have the burden to produce evidence of the machine‘s reliability in order for the defendant‘s breath-test results to be admissible at trial. Id. at ¶39.
{¶30} This court in Carter held that, although the Intoxilyzer 8000 is presumed reliable, a defendant is entitled to make specific challenges to the general reliability of
{¶31} Pursuant to Carter, we hold the trial court erred in requiring the state to produce evidence of the Intoxilyzer 8000‘s general reliability; in granting Jones’ motion; and in excluding the results of his breath test.
{¶32} Therefore, on remand, the trial court is instructed to reinstate Jones’ per-se charge. The state‘s first assignment of error is sustained.
{¶33} For its second assignment of error, the state alleges:
{¶34} “The Portage County Municipal Court erred in finding the testing protocol for the Intoxilyzer 8000 did not comply with
{¶35} “Appellate review of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. The appellate court must accept the trial court‘s factual findings, provided they are supported by competent, credible evidence. Id. Thereafter, the appellate court must determine, without deference to the trial court, whether the applicable legal standard has been met. Id. Thus, we review the trial court‘s application of the law to the facts de novo. Id.
{¶36} Pursuant to the burden-shifting procedure that governs the admissibility of breathalyzer test results, the defendant must first challenge the validity of the test in a pretrial motion to suppress. Urso, supra, at ¶33. The state then has the burden to show the test was administered in substantial compliance with regulations prescribed by the Director of Health. Id. After the state satisfies this burden, the burden then shifts to the
{¶37} Pursuant to
{¶38} “Calibration is the process by which a breathalyzer machine is tested for its range of accuracy.” See State v. Booth, 151 Ohio App.3d 635, 638 (9th Dist.2003). The calibration sequence for the Intoxilyzer 8000 is documented in a form prepared by the Director of Health called the “Subject Test Report.” As of the date of Jones’ test, the report set forth the actual calibration procedure as follows:
{¶39} “[1.] Air Blank
{¶40} “[2.] Diagnostic
{¶41} “[3.] Air Blank
{¶42} “[4.] Dry Gas Control
{¶44} “[6.] Subject Test 1
{¶45} “[7.] Air Blank
{¶46} “[8.] Air Blank
{¶47} “[9.] Subject Test 2
{¶48} “[10.] Air Blank
{¶49} “[11.] Dry Gas Control
{¶50} “[12.] Air Blank”
{¶51} “Air Blanks” ensure that the previous breath sample has been purged from the machine. “Subject Test 1” and “Subject Test 2” indicate each time an individual blows into the machine. “Dry Gas Control” tests check the calibration of the instrument to ensure its results are accurate. Id.
{¶52} Jones argues that, since the Subject Test Report refers to the breath samples as “Subject Test 1” and “Subject Test 2,” a subject test occurs each time an accused blows into the machine. He argues that, because
{¶53} In contrast, the state argues the term “subject test” as used in
{¶54} Resolution of this issue requires us to interpret
{¶55} In addressing the identical issue before us, the Twelfth District recently interpreted
{¶56} In determining the common meaning of the phrase “subject test,” the Twelfth District relied on the definition of the word “subject” in Webster‘s Dictionary, i.e., “one that is placed under the authority * * * of someone * * * an individual whose reactions or responses are studied.” Kormos at ¶16, citing Webster‘s Third New International Dictionary 2275 (1993). Applying this definition to
{¶58} Further, in support of its holding, the Twelfth District noted that
{¶59} It is noteworthy that, while the state relies on Kormos, Jones does not address it. He therefore makes no attempt to challenge or distinguish it. We also note that the First District in Cincinnati v. Nicholson, 1st Dist. No. C-120332, 2013-Ohio-708, ¶8, recently adopted the Twelfth District‘s analysis and decision in Kormos. Further, our
{¶60} We find the analysis adopted by the First and Twelfth Districts to be persuasive. However, we find additional support from the title of the report itself. We note that both the original and revised versions of the report approved by the Director are entitled, “Subject Test Report,” thus indicating it is the report of a single subject test. In both versions, the entire test procedure is set forth, which includes twelve steps, including a reference to both breath samples blown by the defendant. There is nothing in the report to indicate that it is meant to be the report of two separate tests for each breath sample. To the contrary, these breath samples are simply listed as two component parts of a single test procedure. If the Director intended the report to be a report of two separate breath tests, he would have called it “Subject Tests Report.” Since the title of the report is stated in the singular, the Director clearly intended the report to be the report of one test, which includes two breath samples.
{¶61} It does not escape our attention that, throughout his brief, Jones misrepresents the record. For example, he repeatedly suggests that Ms. Martin testified the Administrative Code was written to require a dry gas control before and after each breath sample. In fact, she testified the Code only requires a dry gas control before the first blow and after the second. Further, he argues that Ms Martin testified the Department is able to manipulate and alter data from the Subject Test Reports. In fact, she testified the Department cannot change any data from these reports.
{¶62} We therefore hold the plain language of
{¶63} The state‘s second assignment of error is sustained.
{¶64} For its third and final assigned error, the state alleges:
{¶65} “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 Jones’ breath test results had been changed by the Ohio Department of Health.”
{¶66} The trial court found that the Department of Health had changed the records of Jones’ breath test apparently because it changed the phrase “Subject Test 1” and “Subject Test 2” on the Department‘s website to “Subject Sample 1” and “Subject Sample 2” to describe the two breath samples Jones blew into the machine. For this additional reason, the court held that Jones’ test results were inadmissible. We do not agree.
{¶67} First, the court did not state that the Department‘s change to its website resulted in the violation of any regulation. Because there is no requirement that the Department establish a website making available to the public all breath test results, the
{¶68} Second, Jones generally alleged a violation of
{¶69} The state‘s third assignment of error is sustained.
{¶70} For the reasons stated in the opinion of this court, it is the judgment and order of this court that the judgment of the Portage County Municipal Court, Ravenna Division, is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion,
THOMAS R. WRIGHT, J., concurs in part, dissents in part with a Concurring/Dissenting Opinion.
{¶71} I concur in the judgment and opinion of this court with respect to the second and third assignments of error. With respect to the first assignment of error, I concur in judgment only for the reasons stated in my concurring/dissenting opinions in State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, and State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584.
THOMAS R. WRIGHT, J., concurs in part, dissents in part with a Concurring/Dissenting Opinion.
{¶72} I concur with the disposition of assignments of error two and three. However, I dissent regarding the disposition of assignment of error one for the reasons stated in my dissenting opinion in State v. Lucarelli, 11th Dist. No. 2012-P-0065, 2013-Ohio-1606.