STATE OF OHIO, Plaintiff-Appellant, v. LAURA ANN LUCARELLI, Defendant-Appellee.
CASE NO. 2012-P-0065
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
April 22, 2013
2013-Ohio-1606
DIANE V. GRENDELL, J.
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 2778. Judgment: Reversed and remanded.
Dennis Day Lager, Portage County Public Defender, and Mark A. Carfolo, Assistant Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the judgment of the Portage County Municipal Court, Ravenna Division, holding the breаth 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 March 3, 2012, the Ohio State Highway Patrol issued defendant-appellee, Laura Ann Lucarelli, a traffic ticket, charging her with OVI, a misdemeanor of the first degree in violation of
{¶3} On March 7, 2012, Lucarelli entered a plea of not guilty.
{¶4} On April 18, 2012, Lucarelli 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 6, 2012, a suppression hearing was held, at which the municipal court “limit[ed] its review of Defendant‘s Motion to Suppress solely to the admissibility of a BAC test from the Intoxilyzer 8000.” The court ruled that “the State of Ohio was required to produce some relevant competent evidence to convince the Court that the test results from the Intoxilyzer 8000 are scientifically reliable and, therefore, admissible at trial.” The State did not produce such evidence, but contended that “the legislаture mandates the Court admit BAC results from this machine because the Ohio Department of Health has approved the Intoxilyzer 8000 in the State of Ohio,” and the “Defendant is prohibited from challenging the general reliability of the machine at trial pursuant to State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303.”
{¶7} On June 21, 2012, the State filed its Notice of Appeal.
{¶8} On June 25, 2012, the municipal court, upon the State‘s Motion, stayed execution of its judgment pending a decision on apрeal.
{¶9} On appeal, the State raises the following assignment of error:
{¶10} “[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.”
{¶11} 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, 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.
{¶12} As a preliminary matter, Lucarelli 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. Lucarelli‘s argument has been previously rejected by this court.
{¶13} 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
{¶14} In the present case, the municipal court‘s decision to exclude the breath test results of the Intoxilyzer 8000 “rendered the State‘s proof with respect to the pending charge, a violation of
{¶15} The State argues that, pursuant to
{¶16} “In any criminal prosecution * * * for a violation of division (A) or (B) of [
{¶17} “For purposes of section[] * * *
{¶18} 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[]
{¶19} Lucarelli 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 discrеtion to admit and to exclude evidence. According to Lucarelli, the court below could, but was not required to, admit the breath test results of the Intoxilyzer 8000.
{¶20} 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 accordance with methods approved by the director of health” and “by an individual possessing a valid permit.” The court‘s discretion under
{¶21} 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
{¶22} 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 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 all 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 adоption of appropriate tests and procedures, including breath test devices.” Id. at 188-189, citing State v. Brockway, 2 Ohio App.3d 227, 232, 441 N.E.2d 602 (4th Dist.1981).
{¶23} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega. The court has emphasized that, when regulations are promulgated pursuant to
{¶24} Lucarelli maintains that trial courts must retain the discretion to refuse to admit such test results tо “counter balance * * * the Department of Health‘s unfettered 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.
{¶25} 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.”
{¶26} In addition to attacks on the specific performance of a particular breath test in an individual defendant‘s case, a defendant may also make an attack on the reliability of the Intoxilyzer 8000 based on specific reasons. While the machine is presumed to be generally reliable, a defendant may raise specific issues related to its reliability in a motion to suppress, as opposed to general assertions that the State failed to prove its reliability, which is prohibited under Vega. See Miller, 2012-Ohio-5585, at ¶ 32.
{¶27} Accordingly, the application of Vega does not sacrifice a defendant‘s due process rights, as Lucarelli 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 operator was properly qualified, test results may be suppressed. A defendant may also challenge thе accuracy of his specific test results at trial and with evidence going to the weight accorded the test results.
{¶28} Moreover, to interpret
{¶29} When Lucarelli‘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 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 omitted); State v. Massie, 2nd Dist. No. 2007 CA 24, 2008-Ohio-1312, ¶ 36 (“Mаssie‘s Daubert challenge [to the BAC DataMaster test results] * * * is forestalled by the ‘legislative mandate recognized in Vega,’ and the trial court properly limited Massie to the issue of his own test“).
{¶30} 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 Evidence Rule 702.
{¶32} 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 substances does not conflict with any Rule of Evidence. Lucarelli 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 gеneral 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 compilation of the rules governing evidence questions, nor are the rules preemptive as to subjects that they do not address.”
{¶34} 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
{¶35} In a similar situation, the Ohio Supreme Court considered whether the General Assembly‘s authority statutorily provided for the admissibility of the results of 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 encroaсhment “on the exclusive rule-making authority of the judiciary.” State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 22. While acknowledging that “[t]he trial judge is the guardian of the admissibility of evidence,” the General Assembly, “through its deliberative process,” could conclude “that failure to strictly comply with test procedures affects the evidentiary value of field sobriety tests but that substantial compliance will not result in the tests’ exclusion,” i.e., “that the tests
{¶36} Concerns about the reliability of the results in the absence of strict cоmpliance could be addressed by the defense on cross-examination. Id.
{¶37} Likewise in the present case,
{¶38} Finally, we reject Lucarelli‘s argument that the municipal court cannot take judicial notice of the Intoxilyzer 8000‘s reliability.
{¶39} The State‘s sole assignment of error is with merit.
{¶40} For the foregoing reasons, the judgmеnt of the Portage County Municipal Court, Ravenna Division, granting Lucarelli‘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.
CYNTHIA WESTCOTT RICE, J., concurs,
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellant, v. LAURA ANN LUCARELLI, Defendant-Appellee.
CASE NO. 2012-P-0065
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
THOMAS R. WRIGHT, J.
{¶41}
{¶42}
{¶43}
{¶44} 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).
{¶45} In this case, the trial cоurt 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
{¶46} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{¶47} “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 itself and have been defined as those rights which are ‘imрlicit 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).
{¶48} However vague 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).
{¶50} 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 exercise its discretion to require evidence of general reliability of an approved breath testing device as a condition to admissibility.
{¶51} 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.
{¶52} 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
{¶53} 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 the defense asserts 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, aрproval would amount to an abuse of discretion and admission of the test results a violation of substantive due process.
{¶54} 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
{¶56} 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 the state 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 рrocess 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.
{¶57} When an appellate court 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
{¶58} 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.