STATE OF OHIO, Plаintiff-Appellant, - vs - CHRISTINA L. MCCUNE, Defendant-Appellee.
CASE NO. 2012-P-0089
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2013-Ohio-547
[Cite as State v. McCune, 2013-Ohio-547.]
DIANE V. GRENDELL, J.
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 2377. 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).
George G. Keith, 135 Portage Trail, P.O. Box 374, Cuyahoga Falls, OH 44223 (For Defеndant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals from the judgment of the Portage County Municipal Court, Ravenna Division, granting defendant-appellee, Christina L. McCune‘s, Motion to Suppress. The issue to be decided in this case is whether a trial court, in the performance of its role as gatekeeper, may requirе the State to demonstrate the general scientific reliability of a breath testing instrument where the Ohio director of health has approved such instrument for determining the concentration
{¶2} On February 24, 2012, McCune was issued a traffic ticket, charging her with Operating a Vehicle While Under the Influence (OVI), a misdemeanor of the first degree, in violation of
{¶3} On April 12, 2012, McCune filed a Motion to Suppress, challenging the results of “physical performance or coordination tests,” as well as “[a]ny other evidence obtained as a result of the Defendant‘s arrest for operating a motor vehicle under the influence of alcohol.” It also noted that there was not probable cause to arrest McCune for OVI or to “form an opinion that [she] was under the influence of alcohol while operating a motor vehicle.”
{¶4} On June 11, 2012, McCune filed a Motion in Limine, requesting that the court exclude the results of “any breath tests taken,” since “the breath testing device currently in use has not been recognized by the Court” and “[t]he Court has not taken testimony where it can take a judicial notice of the machine‘s credibility.”
{¶5} On July 24, 2012, a hearing was set for the Motion to Suppress. No transcript of such a hearing was filed in this matter. In a Journal Entry issued on the same date, the trial court granted McCune‘s Motion to Suppress, with respect to the results of the Intoxilyzer 8000.1 The court noted that it had considered arguments of
{¶6} A notation by the lower court judge on the file, dated July 24, 2012, states that the Motion to Suppress was withdrawn. The docket memorializes that, stating “Journal Entry: Motion to Suppress Withdrawn.”
{¶7} The State timely appeals and raises the following assignment of error:2
{¶8} “The Portage County Municipal Court erred in permitting a general attack on the scientific reliability оf the Intoxilyzer 8000 contrary to Ohio statutes and well-established case law.”
{¶9} 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.” (Citatiоn omitted.) Id.
{¶11} The Ohio General Assembly has charged the Ohio director of health to “determine, or cause to be determined, techniques or methods for chemically analyzing a person‘s * * * brеath * * * in order to ascertain the amount of alcohol * * * in the person‘s breath[.]”
{¶12} This court has recently addressed the exact issue raised by the State regarding the general reliability of the Intoxilyzer 8000 and determined that, pursuant to Vega, a defendant may not make “a general attack upon the reliability and validity of the breath testing instrument,” although breath test results are subject to challenge on a variety of grounds, including specific attacks on the reliability of the test and attacks on the performance of the test in a specific defendant‘s case. State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, ¶ 30-32; State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, ¶ 25 and 35; State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584, ¶ 24 and 32.
{¶14} Other appellate districts have consistently rejected the position that the State is requirеd to provide evidence of the general reliability of a testing instrument in the same or similar situations. 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); Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, 933 N.E.2d 317, ¶ 27 (10th Dist.) (“while [State v.] French[, 72 Ohio St.3d 446, 650 N.E.2d 887 (1995),] permits evidentiary objections to the test results challenging issues such as competency, admissibility, relevancy, authenticity, and credibility, it does not indicate that a challenge to the ‘general reliability’ is among the permissible challenges“); State v. Massie, 2nd Dist. No. 2007 CA 24, 2008-Ohio-1312, ¶ 36 (“[the defendant‘s] Daubert challenge * * * is forestalled by the ‘legislative mandate recognized in Vega‘“).
{¶16} 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 basеd on specific reasons, as opposed to general assertions that the State failed to prove its reliability, which is prohibited under Vega. See Vega at 189.
{¶17} We note that, in the present case, McCune did not raise in her Motion to Suppress any specific challenges to the Intoxilyzer 8000 test performed. Further, according to the record, her Motion to Suppress was withdrawn on the same date the trial court entered its judgment suppressing the breath test results. In order to rebut the Vega presumption, McCune was required to raise specific procedural and substantive challenges, but there is no indication that she did so.
{¶19} For the foregoing reasons, the judgment of the Portage County Municipal Court, Ravenna Division, granting McCune‘s Motion to Suppress, is reversed, and this cause is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee.
TIMOTHY P. CANNON, P.J., concurs,
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.
{¶20}
{¶21}
{¶23} 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).
{¶24} 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
{¶25} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{¶26} “Substantive due procеss, [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 ‘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, 1327, 1328 (6th Cir. 1989).
{¶27} However vague the conceptual parameters of one‘s substantive due process guaranteеs 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).
{¶28} 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 thе general reliability of the Intoxilyzer 8000 before admitting the
{¶29} 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.
{¶30} 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 doеs not permit expert testimony to attack the reliability of intoxilyzers in general.” (Emphasis added.) Id. at 186.
{¶31} 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. Seе also State v. Vega, 5th Dist. No. CA-1766, 1993 Ohio App LEXIS 14350, *16 (Nov.22, 1983)(Hoffman, J., dissenting). Unlike Vega, 12 Ohio St.3d 185, threshold admissibility is the issue in the
{¶32} 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 fоr 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 amоunt to an abuse of discretion and admission of the test results a violation of substantive due process.
{¶33} 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 аnswer 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
{¶34} 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
{¶35} 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 rеquired 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 exerсise of the sound discretion as the gatekeeper of breath test result admissibility.
{¶36} 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 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
{¶37} This appeal is centered around a discretionary decision made by the trial court. As I find the court‘s decisiоn 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.