State v. O'NeillState v. O'Neill
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 5539.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
Dan J. Weisenburger, 121 East Main Street, 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 breath 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 role as evidentiary gatekeeper, may pass judgment on the general reliability of a breath testing instrument where the Ohio director of health has
{¶2} On April 27, 2012, the Ohio State Highway Patrol issued defendant-appellee, Stephen P. O‘Neill, a traffic ticket, charging him with OVI, a misdemeanor of the first degree in violation of
{¶3} On May 2, 2012, O‘Neill entered a plea of not guilty.
{¶4} On September 12, 2012, O‘Neill filed a Motion in Limine, seeking to prevent the prosecution from introducing the “results of testing conducted upon the Defendant using an Intoxilyzer 8000,” pursuant to Evidence Rules 104, 401, and 702. O‘Neill asserted: “To date there has been no documentation in this jurisdiction, via a hearing on the merits or otherwise, that the Intoxilyzer 8000 device, used in this particular instance, is accurate to a legal degree of certainty and scientifically reliable in order to establish such a device as admissible evidence in a courtroom.” O‘Neill further asserted that the results were inadmissible due to the state trooper‘s failure “to run * * * a Dry Gas Control.”
{¶5} On September 13, 2012, the matter came before the municipal court for trial. The court ruled that it was suppressing the results of the Intoxilyzer 8000, despite the captioning of the motion as one in limine, based on its prior decisions in State v. Johnson, Case No. R 2011 TRC 4090, and State v. Consolo, Case No. R. 2011 TRC 16608. The court granted the State a stay of execution pending appeal.
{¶7} On appeal, the State raises the following assignment of error:
{¶8} “[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.”
{¶9} Where the lower court‘s judgment is challenged on a purported misconstruction of the law, the appropriate standard of review 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.
{¶10} This court has previously held that a defendant may not make a general challenge to the scientific reliability of a breath testing device, where that device has been approved by the Ohio director of health as an appropriate device for chemically analyzing a person‘s breath to ascertain the amount of alcohol therein, pursuant to
{¶11} O‘Neill contends that a trial court retains discretion to refuse to admit breath test results in its role as “gatekeeper” and under Ohio‘s Rules of Evidence. The prior decisions of the Ohio Supreme Court, this court, and other appellate districts compel a different conclusion. Contrary to O‘Neill‘s position, the trial court‘s discretion to admit or exclude evidence is restricted to determining whether the breath test was
{¶12} 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
{¶13} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega. The court has emphasized that, when regulations are promulgated pursuant to
{¶14} The basic holding of Vega has been followed by other appellate districts. See State v. Tenney, 2nd Dist. No. 24999, 2012-Ohio-3290, ¶ 5 (”
{¶15} O‘Neill alternatively contends that the legislative mandate in
{¶16} “The supreme court shall prescribe rules governing practice and procedure in all courts of the state * * *. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
{¶17} 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. O‘Neill 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 general 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.”
{¶18} The Ohio Supreme Court, in State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, expressly characterized
{¶19} 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, ¶ 12.1
{¶20} 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 encroachment “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 are sufficiently reliable to be admissible by meeting a clear-and-convincing standard.” Id.
{¶21} Concerns about the reliability of the results in the absence of strict compliance could be addressed by the defense on cross-examination. Id.
{¶23} Accordingly, we reaffirm our prior holding:
{¶24} 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.”
{¶25} 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 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 Vega at 189. Miller, 2012-Ohio-5585, at ¶ 31-32.
{¶26} The State‘s sole assignment of error is with merit.
{¶27} Although the municipal court erroneously suppressed the breath test results of the Intoxilyzer 8000 based on a challenge to its general reliability, we affirm the lower court‘s decision. The municipal court identified, as an independent basis for suppressing the test results, the purported failure of law enforcement to comply with the directive of the Ohio director of health that the Intoxilyzer 8000 “shall automatically perform a dry gas control test before and after every subject test.”
{¶28} On appeal, the State has not challenged the municipal court‘s judgment with respect to the failure to perform the breath test in accordance with the director of health‘s directives. Accordingly, we affirm the municipal court‘s judgment on that basis, without expressing any opinion as to the merits of that determination.
{¶29} For the foregoing reasons, the judgment of the Portage County Municipal Court, Ravenna Division, granting O‘Neill‘s Motion in Limine, is affirmed. Costs to be taxed against the parties equally.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O‘TOOLE, J., concurs in judgment only with a Concurring Opinion.
COLLEEN MARY O‘TOOLE, J., concurs in judgment only with a Concurring Opinion.
{¶30} I concur with the majority‘s decision to affirm the trial court‘s judgment with respect to the failure to perform the breath test properly. However, I would also affirm the trial court‘s exercise of its discretion in excluding the results from the Intoxilyzer 8000.
{¶31} As the majority notes, the state relies on Vega, 12 Ohio St.3d 185. I do not believe that Vega stands for the sweeping proposition advanced by the state -- i.e., that the results of all tests from breath analysis machines approved by the Director of
{¶32} 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.” Id. at 186. The Vega court premised its decision on several considerations.
{¶33} First, the court cited to its prior holding in Westerville v. Cunningham, 15 Ohio St.2d 121, 123 (1968), regarding use of breath analysis machines in OVI cases, for the proposition that: “‘such tests are today generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators.‘” Vega at 186.
{¶34} Second, the court noted that the General Assembly confided discretion to determine proper methods of analyzing breath alcohol to the Director of Health, and that the director had designated the machine in question as appropriate. Vega, 12 Ohio St.3d at 186-187.
{¶35} Third, the court noted that under the version of
{¶37} “The majority in Vega themselves set forth the (sic) in their own logic why Vega is no longer good law, when they stated:
{¶38} “‘Not only does appellee‘s position fail to give recognition to the legislative determination, it also misperceives the presumption and the effect of that presumption created by
{¶39} “‘This presumption does not, contrary to appellee‘s arguments, change the presumption of innocence to one of guilt. It merely raises the rebuttable presumption that one was under the influence of alcohol. Under the statute, the accused may introduce any other competent evidence bearing upon the question of whether he was under the influence of intoxicating liquor. (* * *) There is no question that the accused may also attack the reliability of the specific testing procedure and the qualifications of the operator. See, e.g., Cincinnati v. Sand (1975), 43 Ohio St.2d 79, * * *. Defense expert testimony as to testing procedures at trial going to weight rather than admissibility is allowed. Since the presumption is rebuttable and the defendant may go forward with evidence, the ” (* * *) (d)efendant cannot be heard to complain that the provisions of
{¶40} “Examination of the majority decision itself clearly shows that they believed that the rebuttable presumption was able to be addressed by presenting other evidence, including limited attack on the machine result as another item of evidence. Today the test result is not a rebuttable presumption but a conclusive presumption. Conclusive presumptions have been previously found to be unconstitutional.” (Citing Sandstrom v. Montana, 442 U.S. 510 (1979)). (Emphasis sic.) Malinowski at 8-9.
{¶41} This reasoning is persuasive. Conclusive presumptions being unconstitutional, Vega can no longer provide authority that attacks on the reliability of breath analysis machines cannot be made, since the law presently gives the results of such tests, effectively, a conclusive result.
{¶42} However, an analysis of the applicable statutes, even within the context of Vega, does not lead to the conclusion that a trial court may not demand proof of the Intoxilyzer 8000‘s reliability.
{¶43}
{¶44} “In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled
{¶45} The foregoing statute uses the word “may.” “‘The statutory use of the word “may” is generally construed to make the provision in which it is contained optional, permissive, or discretionary.‘” State v. Davie, 11th Dist. No. 2000-T-0104, 2001 Ohio App. LEXIS 5842, *16 (Dec. 21, 2001), quoting Dorrian v. Scioto Conserv. Dist., 27 Ohio St.2d 102, 107 (1971). Thus,
{¶46} ”
{¶47} Again, the statutory scheme does not establish the proposition advanced by the state: i.e., results of any breath analysis machine must be accepted at trial. Rather, the statutes provide that the Director of Health has sole authority to approve machines -- but that the trial courts of Ohio have discretion to accept the results generated by the machines so approved. Further, Vega prohibits blanket attacks on the reliability of breath analysis machines generally, and premises this upon the use of “‘proper equipment.‘” Vega, 12 Ohio St.3d at 186. The question raised in this case is the reliability of the Intoxilyzer 8000 specifically. A breath analysis machine could only be “proper equipment” if it is reliable.
{¶48} As Judge Wright further noted in Collazo:
{¶49} “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
{¶50} “Moreover, the determination of evidential reliability necessarily implicates the defendant‘s substantive due process rights.
{¶51} “‘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-813, ¶ 11 (10th Dist.), quoting Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6th Cir. 1989).
{¶52} “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, 103 S. Ct. 3383 (1983). Collazo, 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶ 41-44.
{¶53} As the Court of Appeals, Tenth Appellate District has observed:
{¶54} “Substantive due process prohibits the government from infringing upon fundamental liberty interests in any manner, regardless of the procedure provided,
{¶55} Case law indicates serious problems regarding the reliability of the Intoxilyzer 8000, which make it incumbent on trial courts to assure the reliability of its results, before allowing those results into evidence. In one case, plaintiff brought a federal action for violation of his Fourth Amendment rights, following his arrest for driving under the influence. Briggs v. Holsapple, D.Oregon Civil Case No. 08-6037-KI, 2009 U.S. Dist. LEXIS 11295, *1 (Feb. 11, 2009). Despite considerable indications on the field sobriety tests that the plaintiff was inebriated, his breath test on an Intoxilyzer 8000 resulted in a 0.000% BAC. Id. at *6. The state of Oregon brought its own expert in to testify against the reliability of the machine. Id. at *7. As stated by the district court:
{¶56} “Justin Lazenby, Forensic Scientist, Oregon State Police Toxicology Unit, has reviewed the facts of plaintiff‘s arrest and has concluded: (a) the Intoxilyzer 8000 underestimates actual BAC 84% of the time; (b) the Intoxilyzer 8000 will round all breath sample results below 0.010% down to 0.000%; (c) based on the alcohol consumption described by plaintiff in his deposition, plaintiff‘s BAC at the time of driving would be between 0.019% and 0.023%, * * *.” Id. at *7-8.
{¶57} The state of Ohio does not seem to have access to the “source code” for the Intoxilyzer 8000. State v. Gerome, et al., Athens County M.C. Nos. 11TRC01909, 11TRC00826, 11TRC01734, and 11TRC02434, at 15 (June 29, 2011) (Grim, J.). As
{¶58} “The source code is the human readable format of the software that controls the operation of the Intoxilyzer 8000. In other words, the source code tells the Intoxilyzer 8000 how to calculate the numerical result, such as 0.08. If the source code contains a mistake, then the result generated will be defective.” Montana v. Peters, 2011 MT 274, 362 Mont. 389, 264 P.3d 1124, ¶ 4 (Mont. 2011).
{¶59} Testimony has been elicited that such widely used devices as smart phones can interfere with the Intoxilyzer 8000 at frequencies it cannot detect. Gerome at 20-21.
{¶60} One of the liberty interests constitutionally protected by substantive due process is “freedom from bodily restraint and punishment.” State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, ¶ 14. Conviction under the OVI laws can result in deprivation of this liberty interest. Consequently, substantive due process demands that such convictions be premised on proceedings and procedures which are constitutionally proper. The state has a compelling interest in preventing driving while impaired -- but any procedure adopted under the OVI laws must be narrowly tailored to serve that interest. Presently, use of the Intoxilyzer 8000 does not meet this standard. I appreciate the writing judge‘s holding that a defendant is entitled to make specific challenges to the general reliability of the Intoxilyzer 8000 -- but it appears that the state itself is unaware of exactly how the machine functions, and generates its results. A criminal defendant is deprived of substantive due process when convicted using a procedure which is not merely unknown, but unknowable. Further, a criminal
{¶61} For all the reasons foregoing, I would affirm the judgment of the trial court in all respects. I concur in judgment only.