STATE OF OHIO, Plaintiff-Appellant, - vs - TODD R. NEICE, Defendant-Appellee.
CASE NO. 2012-P-0064
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
February 11, 2013
2013-Ohio-542
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2011 TRC 16199. Judgment: Reversed and remanded.
Charles Richard Quinn, 223 Whittier Dr., Kent, OH 44240 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{1} Appellant, the state of Ohio, appeals the judgment of the Portage County Municipal Court, Ravenna Division, granting the motion to suppress of appellee, Todd R. Neice, to exclude evidence of the results of an Intoxilyzer 8000 test. At issue is whether the trial court erred in requiring the state to present evidence of the reliability of the Intoxilyzer 8000 as a predicate for the admission of Neice‘s breath-test results at trial. Based on this court‘s precedent in State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, we reverse and remand.
{3} On March 6, 2012, Neice filed a motion to suppress the results of his breath test, suggesting that the device used to test his breath was unreliable. Although Neice did not identify the device used, it was the Intoxilyzer 8000. In response, the state filed a brief arguing that, pursuant to State v. Vega, 12 Ohio St.3d 185 (1984), it was not required to present evidence to establish the general reliability of the Intoxilyzer 8000 prior to the state‘s introduction of Neice‘s breath-test results. The state argued that the legislature delegated to the Ohio Director of Health the authority to determine reliable breath-testing devices, and the Supreme Court in Vega upheld this delegation.
{4} By its judgment, dated June 20, 2012, the trial court granted Neice‘s motion to suppress. The court found that, pursuant to its previous ruling in State v. Johnson, Case No. R 11 TRC 4090, the state was required to produce evidence to convince the court that the Intoxilyzer 8000 is reliable in order for its test results to be admissible at trial. The court found that to deny Neice the opportunity to challenge the scientific evidence of his guilt is a denial of due process. As a result, the court ordered that the results of Neice‘s breath test from the Intoxilyzer 8000 would not be admissible at his trial. The court stated it would set the remaining charges under
{6} “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} In granting Neice‘s motion to suppress, the trial court concluded that the state was required to establish by expert testimony the reliability of the Intoxilyzer 8000 before Neice‘s breath-test results could be admitted at trial. The state argues on appeal, as it did in the trial court, that it was not required to present expert testimony of the machine‘s reliability due to the legislative determination in
{8} Thus, the issue before us is whether the state was required to present expert evidence to prove that the Intoxilyzer 8000 is a reliable breath-testing instrument as a predicate for admitting Neice‘s breath-test results at trial.
{9} This court addressed the identical issue in Carter, supra. Based on this court‘s decision in Carter, we hold that the trial court erred in requiring the state to produce evidence of the Intoxilyzer 8000‘s reliability and in granting Neice‘s motion to suppress; further, pursuant to these erroneous rulings, the trial court erred in excluding the results of Neice‘s breath test with no evidence to overcome the presumptive reliability of the Intoxilyzer 8000. Id. at ¶42.
{11} For the reasons stated in this opinion, it is the judgment and order of this court that the judgment of the Portage County Municipal Court, Ravenna Division, is reversed, and this matter is remanded to the trial court for further proceedings as set forth in this opinion.
TIMOTHY, P. CANNON, P.J., concurs,
THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.
THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.
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{15} 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).
{16} 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
{17} Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{18} “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 ‘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).
{19} 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).
{21} 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.
{22} 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.
{23} 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
{24} 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 case 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.
{25} “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
{27} 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 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.
{28} 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
{29} 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.