State v. MillerState v. Miller
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
J. Chris Sestak and Jamison A. Offineer, Student Legal Services, Inc., Kent State University, 164 East Main Street, #203, Kent, OH 44240 (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, granting defendant-appellee, Justin C. Miller‘s, Motion to Suppress/Motion in Limine. The issue before this court is whether a trial court, in the performance of its role as gatekeeper, may require 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 November 24, 2011, Miller was issued a traffic ticket, charging him with Speeding, a minor misdemeanor in violation of
{¶3} On November 28, 2011, Miller entered a plea of “not guilty.”
{¶4} On January 17, 2012, Miller filed a Motion to Suppress/Motion in Limine, challenging, inter alia, the results of a breath test taken by Miller at the time of the citation.
{¶5} On April 13, 2012, a hearing was held on the Motion to Suppress/Motion in Limine. Counsel for Miller argued that the State was required to demonstrate the scientific reliability of the Intoxilyzer 8000, the breath test instrument used to determine the concentration of alcohol in Miller‘s breath. The State presented no testimony, but maintained that a general challenge to the scientific reliability of the Intoxilyzer 8000 was impermissible under the authority of State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984).
{¶6} On April 16, 2012, the municipal court issued a Journal Entry granting Miller‘s Motion with respect to the results of the Intoxilyzer 8000. The court stated that
{¶7} On April 18, 2012, the State filed its Notice of Appeal.
{¶8} On May 15, 2012, the municipal court stayed all proceedings pending appeal.
{¶9} On appeal, the State raises the following assignments 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} “[2.] The Portage County Municipal Court erred in sua sponte dismissing the per se violation under
{¶12} 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.
{¶13} We must first address Miller‘s argument that the municipal court‘s April 16, 2012 Journal Entry is not a final order. Miller‘s argument is based on the distinction between a motion to suppress and a motion in limine.
{¶14} The purpose and effect of a motion to suppress and a motion in limine are distinct. A “motion to suppress” is defined as a “[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth
{¶15} A “motion in limine” is defined as “[a] pretrial motion requesting [the] court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to [the] moving party that
{¶16} A ruling on a motion in limine reflects the court‘s anticipated treatment of an evidentiary issue at trial and, as such, is a tentative, interlocutory, precautionary ruling. Thus, “the trial court is at liberty to change its ruling on the disputed evidence in its actual context at trial. Finality does not attach when the motion is granted.” Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4, 573 N.E.2d 32, 35, citing State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285, 288, 503 N.E.2d 142, 145. State v. French, 72 Ohio St.3d 446, 449-450, 650 N.E.2d 887 (1995).
{¶17} According to Miller, the municipal court‘s ruling “is not a final appealable order because such an order does not determine the ultimate admissibility of the evidence.” Brief of Appellee, at 3. If the court were subsequently satisfied as to the scientific reliability of the Intoxilyzer 8000, “it would be at liberty to change its ruling on the disputed evidence at trial.”
{¶19} The municipal court‘s ruling in the present case was not a tentative or precautionary ruling, but determined that “the Defendant‘s breath test shall not be admitted during the trial.” Any doubt as to the finality of this ruling is removed by the court‘s dismissal of the charge of operating a vehicle with a prohibited breath alcohol concentration.
{¶20} For the foregoing reasons, the municipal court‘s April 16, 2012 Journal Entry is a final order.
{¶21} In its first assignment of error, the State contends the municipal court erred by allowing Miller to challenge the scientific reliability of the Intoxilyzer 8000, contrary to Ohio statutory law and the Ohio Supreme Court‘s decision in Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303.
{¶22} “In any criminal prosecution * * * for a violation of division (A) or (B) of [
{¶23} “For purposes of section[] * * *
{¶24} 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[]
{¶26} The court held that, by enacting
{¶27} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega. The court has emphasized that, when regulations are promulgated pursuant to
{¶29} Finally, other appellate districts have consistently rejected Miller‘s position 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 French [, 72 Ohio St.3d 446 (1995),] permits evidentiary objections to the test results challenging issues such as competency, admissibility,
{¶30} We emphasize that, although a defendant may not make “a general attack upon the reliability and validity of the breath testing instrument,” breath test results are subject to challenge on a variety of grounds.
{¶31} 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.”
{¶32} 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, as discussed above, the machine is presumed to be generally reliable, a defendant may raise specific issues
{¶33} Accordingly, Vega does not circumvent the trial court‘s role as “gatekeeper” of evidence, as Miller suggests. Rather, a trial court still retains its authority and responsibility to regulate the admission of test results and to evaluate specific challenges to the Intoxilyzer‘s reliability. 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 the reliability of the Intoxilyzer 8000 with specific arguments, may challenge the accuracy of his specific test results, for example, based on radio frequency interference, at trial and with evidence going to the weight accorded to the test results.
{¶34} In the present case, Miller challenged the breath test results of the Intoxilyzer 8000 on several grounds, including that the breath test was “not conducted in accordance with the time limitations and regulations set forth in
{¶36} In the second assignment of error, the State contends the municipal court erred by dismissing the charge of operating a vehicle with a prohibited breath alcohol concentration,
{¶37} Given our disposition of the first assignment of error, the State‘s second assignment of error, challenging the trial court‘s sua sponte dismissal of the OVI charge constituting a violation of
{¶38} For the foregoing reasons, the judgment of the Portage County Municipal Court, Ravenna Division, granting Miller‘s Motion to Suppress/Motion in Limine and dismissing the charge of violating
TIMOTHY P. CANNON, P.J., concurs,
CYNTHIA WESTCOTT RICE, J., concurs with a Concurring Opinion.
{¶39} While I concur with the disposition of this case, I write separately to clarify the procedural consequences of the majority‘s opinion.
{¶40} The majority concludes that the appellee could not challenge the general scientific reliability of the Intoxilyzer 8000; it also observes, however, that “a defendant may also make an attack on the reliability of the Intoxilyzer 8000 based on specific reasons.” The majority acknowledges that while the machine is presumed reliable, a defendant may raise specific issues related to its reliability in his or her motion to suppress. While I agree with these points, I would expand on the issue.
{¶41} In this case, the lower court sustained appellee‘s motion premised upon the state‘s failure to produce evidence of the Intoxilyzer 8000‘s general reliability. Under Vega, once suitable methods for breath analysis are established by the Director of Health, pursuant to the legislative directive, a statutory presumption of reliability then attaches to the approved testing devices. “Administrative rules enacted pursuant to a specific grant of legislative authority are to be given the force and effect of law.” Doyle v. Ohio Bureau of Motor Vehicles, 51 Ohio St.3d 46 (1990), paragraph one of the syllabus. Further, once the Director of Health has promulgated regulations for breath testing instruments, they are to be given the force and effect of law. State v. Yoder, 66 Ohio St.3d 515, 519 (1993) (Wright, J., dissenting), citing Doyle, supra. Thus,
{¶42} Appellee filed a motion in limine, eventually treated as a motion to suppress, which challenged the general reliability of the Intoxilyzer 8000. Although the
{¶43} First of all, as discussed above, Vega prohibits a “general attack upon the reliability * * * of the breath testing instrument.” (Emphasis added.) Id. at 190. This holding, however, allows for a specific challenge to the reliability of the Intoxilyzer 8000. Id. at 189. The majority appears to acknowledge this point, but does not expand on its procedural implications. Given the interplay of the statutory scheme and the relevant case law, I would additionally hold that once the state establishes an approved breath testing device was used, the presumption of reliability attaches. And, in turn, a defendant, based upon his specific challenges in his motion to suppress, then bears the responsibility to produce evidence of how, in his case, the specific results were unreliable.
{¶44} Here, neither party disputes the Intoxilyzer 8000 was used. And since the legislature determined that the Intoxilyzer 8000 is reliable, it must be presumed the device is reliable. See Yoder, supra, at 518 (“[I]n promulgating this regulation, it must be presumed that the Director of Health acted upon adequate investigation * * *. We must defer to the department‘s authority and we may not substitute our judgment for that of the Director of Health.“) Given these points, the state did not have the burden to produce evidence of the machine‘s reliability as a predicate for presenting appellee‘s breath test results. To the contrary, because the instrument is presumed to be a reliable breath testing instrument, appellee had the burden to produce evidence that the Intoxilyzer is not reliable.
{¶46} As indicated above, the majority appears to recognize the foregoing points. The majority opinion, however, does not acknowledge that, once the presumption has attached, the defendant has the obligation to go forward with evidence that the machine is unreliable. Thus, while I agree that the trial court erred in requiring the state to produce evidence of the Intoxilyzer 8000‘s general reliability and in granting appellee‘s motion to suppress, I write separately to acknowledge that it is the defendant‘s, not the state‘s, burden to go forward, once the presumption of reliability has been triggered.