STATE OF OHIO, Plaintiff-Appellant, - vs - JONATHAN R. KUNTZ, Defendant-Appellee.
CASE NO. 2012-P-0082
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
[Cite as State v. Kuntz, 2013-Ohio-546.]
TIMOTHY P. CANNON, P.J.
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 01433. Judgment: Reversed and remanded. OPINION
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).
Errol A. Can, Williams, Welser, Kratcoski & Can, L.L.C., 11 South River Street, Suite A, Kent, OH 44240 (For Defendant-Appellee).
TIMOTHY P. CANNON, P.J.
{1} Appellant, the state of Ohio, pursuant to
{2} Appellee was stopped by the Ohio State Highway Patrol for excessive speed, in violation of
{3} After appellee entered a not guilty plea, he filed a motion to suppress/motion in limine. The matter proceeded to a hearing. The trial court, relying upon its decision in State v. Johnson, held: “The results of the breath test from the Intoxilyzer 8000 are not admissible at the trial of the Defendant. The remaining charges alleging a violation of
{4} The statе timely appealed and presents a single assignment of error for our review:
{5} “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.”
{7} On appeal, the state contends it is not required to produce expert witnesses to convince the municipal court of the general sciеntific reliability of the Intoxilyzer 8000 as a threshold matter before offering into evidence the breath test results. The state maintains the legislature has chosen to delegate this determination to the Ohio Director of Health, and this delegation has been upheld by the Ohio Supreme Court in Vega. Although the state argues a defendant cannot launch a general attack on the breathalyzer machine, it concedes that a defendant may attack his specific breath test results.
{8} In response, appellee argues there is a requirement that scientific evidence meet threshold standards of reliability before its admittance. Appellee maintains the trial court was required to make a threshold determination regarding the admissibility of the scientific results produced by the Intoxilyzer 8000, and as the state failed to present any evidence to satisfy this evidentiary threshold, the trial court properly excluded appellee‘s breath test results.
{9} Both below and on appeal, the state relies upon the Ohio Supreme Court‘s holding in Vega to support its argument that it does not have an obligation to meet the
{10} We review a trial court‘s legal determinations at a suppression hearing de novo. State v. Djisheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶9.
{11} The issue raised in this appeal is identical to the issue raised in State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584; State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583; and State v. Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440.
{12} In these decisions, we recognized the Ohio General Assembly has given the Director of Health the authority to determine techniques for chemically analyzing a person‘s brеath in order to ascertain the amount of alcohol contained in the person‘s breath.
{13} In these decisions, we followed State v. Vega, 12 Ohio St.3d 185 (1984). The issue before the Vega Court was whether the defendant may use expert testimony to attack the general reliability of intoxilyzers in light of
{15} A defendant is therefore entitled to challenge the specific breath test results based on specific alleged deficiencies in the testing equipment; the burden, however, is on the defendant to come forward with evidence sufficient to overcоme the presumption afforded to the Director of the Ohio Department of Health as determined by the Ohio Supreme Court in Vega. Rouse at ¶39. In light of the evidence produced at the hearing, the trial court may then determine whether to admit the breath test device. Johnson at ¶32.
{16} In Johnson, we expressed the reservations that neither
{17} The state‘s assignment of error is with merit.
CYNTHIA WESTCOTT RICE, J., concurs,
THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.
THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.
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{22} 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).
{23} 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
{24} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{25} “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 itsеlf 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).
{26} However vаgue the conceptual parameters of one‘s substantive due process guarantees 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, 463 U.S. 880, 931, fn. 10 (1983).
{27} 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 lower court‘s decision to require the state to produce evidence of the machines reliability was an
{28} Rather thаn 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 apрroved breath testing device as a condition to admissibility.
{29} 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.
{30} 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 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 (Nоv. 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
{31} 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 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 cаse 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.
{32} 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 prеsented 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
{33} 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
{34} Givеn 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 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.
{35} When an appellate court is reviewing a рure 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 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, 2010-Ohio-1900 at ¶67.