[Cite as State v. Hatcher, 2013-Ohio-445.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellant, :

CASE NOS. 2012-P-0077 

 - vs - : and 2012-P-0078 

HOLLY F. HATCHER, :

 Defendant-Appellee. :

Criminal Appeals from the Portage County Municipal Court, Ravenna Division, Case 

Nos. R2012 TRC 04055 and R2012 CRB 00866. 

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). 

Dennis Day Lager, Portage County Public Defender, and Mark A. Carfolo, Assistant 

Public Defender, 209 South Chestnut Street, Suite #400, Ravenna, OH 44266 (For 

Defendant-Appellee). 

MARY JANE TRAPP, J. 

{¶1} The State of Ohio appeals from the decision of the Portage County 

Municipal Court, Ravenna Division, which granted appellee, Holly F. Hatcher’s, motion 

to suppress. Ms. Hatcher sought suppression of her BAC results from an Intoxilyzer 

8000 test, and the trial court made such a determination based on the state’s failure to 

present any expert testimony on the subject of the Intoxilyzer 8000’s scientific reliability. 
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{¶2} We find that the trial court was not at liberty to demand presentation of 

evidence by the state of Ohio as to the scientific reliability of the Intoxilyzer 8000 prior to 

trial. The legislature has specifically recognized the admissibility of evidential breath 

testing instruments determined to be reliable by the Ohio Department of Health’s 

Director of Health, and has delegated power to the Director of Health to make such 

determinations. Therefore, we reverse the decision of the Portage County Municipal 

Court and remand for further proceedings consistent with this opinion. 

Substantive Facts and Procedural History

{¶3} In the early morning of March 29, 2012, Holly Hatcher was stopped for 

driving without a front license plate. She was arrested and charged with one count of 

No Front Plate in violation of R.C. 4503.21, a minor misdemeanor, and one count of OVI 

in violation of R.C. 4511.19(B)(3); she pled not guilty to both charges. On the date of 

her arrest, Ms. Hatcher was administered a breath test using an Intoxilyzer 8000, which 

registered a BAC of .043. At the time of her arrest, Ms. Hatcher was under the age of 

21 years old. 

{¶4} Ms. Hatcher filed a motion to suppress, challenging the warrantless stop 

of her vehicle and the results of the BAC test. She argued both that her specific results 

were unreliable and that the results were generally inadmissible based on the alleged 

scientific unreliability of the Intoxylizer 8000. At the motion hearing on July 11, 2010, 

the state responded in opposition, arguing that it was not required to present evidence 

to establish the general reliability of the Intoxilyzer 8000 prior to its introduction at trial of 

the machine’s BAC test results. 

{¶5} The trial court granted Ms. Hatcher’s motion to suppress, relying entirely 

upon a recent decision from the same court, State v. Johnson, Portage M.C. No. 
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R2011TRC4090, which granted the defendant’s a motion in limine upon the state’s 

refusal to present evidence on the matter of the Intoxilyzer 8000’s general scientific 

reliability.1

 The state timely appealed, pursuant to Crim.R. 12(K) and R.C. 2945.67(A), 

and now brings the following assignment of error: 

{¶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 wellestablished case law.” 

Preliminary Matter

{¶7} The state appeals from a grant of a motion to suppress. In her brief in 

opposition, Ms. Hatcher characterizes her motion as a motion in limine, and argues that 

the trial court has not yet ruled on the constitutional suppression issues. She suggests 

that no final appealable order exists because the “order does not determine the ultimate 

admissibility of the evidence.” The only determination the trial court made, she 

contends, is an evidentiary decision under the Ohio Rules of Evidence, which is merely 

preliminary. Thus she urges this court to decline jurisdiction of the matter at this time. 

{¶8} Generally, a motion in limine “is a tentative, interlocutory, precautionary 

ruling by the trial court reflecting its anticipatory treatment of the evidentiary issues. In 

virtually all circumstances finality does not attach when the motion is granted.” State v. 

Grubb, 28 Ohio St.3d 199, 201-202 (1986). However, “any motion which seeks to 

obtain a judgment suppressing evidence is a ‘motion to suppress’ for purposes of R.C. 

2945.67 and Crim.R. 12(J) where that motion, if granted, effectively destroys the ability 

of the state to prosecute. The fact that the motion is not labeled ‘motion to suppress’ is 

 

1. State v. Johnson is currently on appeal before this court as case no. 2012-P-008, but has yet to be 

decided. 
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not controlling.”2

 State v. Davidson, 17 Ohio St.3d 132, 135 (1985). Because of the 

trial court’s determination that the BAC results from the Intoxilyzer 8000 were not 

admissible at trial, the state’s case has effectively been gutted and its ability to try the 

case destroyed. For that reason, we find that a final appealable order exists and we 

may consider this appeal pursuant to R.C. 2945.67 and Crim.R. 12(K). 

Standard of Review

{¶9} “‘At a hearing on a motion to suppress, the trial court functions as the trier 

of fact, and, therefore, is in the best position to weigh the evidence by resolving factual 

questions and evaluating the credibility of any witnesses.’” State v. McGary, 11th Dist. 

No. 2006-T-0127, 2007-Ohio-4766, ¶20, quoting State v. Molek, 11th Dist. No. 2001-P0147, 2002-Ohio-7159, ¶24, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, 

“[a]n appellate court must accept the findings of fact of the trial court as long as those 

findings are supported by competent, credible evidence.” Id, quoting Molek at ¶24, 

citing State v. Retherford, 93 Ohio App.3d 586, 592 (2d Dist.1994). See also City of 

Ravenna v. Nethken, 11th Dist. No. 2001-P-0040, 2002-Ohio-3129, ¶13. “‘After 

accepting such factual findings as true, the reviewing court must then independently 

determine, as a matter of law, whether or not the applicable legal standard has been 

met.’” Id., quoting Molek at ¶24. 

The Motion Was Granted in Error

{¶10} In its sole assignment of error, the state argues that the trial court erred 

when it required the state to present expert testimony regarding the scientific reliability 

of the Intoxilyzer 8000, and further erred when it granted Ms. Hatcher’s motion to 

suppress in the face of the state’s refusal to go forward with a Daubert/Miller evidentiary 

 

2. What was Crim.R. 12(J) at the time of this decision, is now Crim.R. 12(K). 
 5

hearing. We agree with the state that the trial court was not at liberty to demand the 

state go forward with an evidentiary hearing on the general scientific reliability of the 

Intoxilyzer 8000, and erred in determining the BAC test results were inadmissible in the 

absence of such evidence of reliability. 

{¶11} We note that this court has already addressed this issue in State v. 

Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-5584, and State v. Carter, 11th Dist. No. 

2012-P-0027, 2012-Ohio-5583. We are generally constrained by this precedent, but 

further clarification is necessary regarding the “rebuttable presumption” discussed in 

those two decisions. 

{¶12} In Ohio, four methods exist to establish the reliability and thus admissibility 

of scientific evidence: (1) judicial notice; (2) stipulation; (3) presentation of evidence, 

such as in a Daubert/Miller pre-trial hearing; and (4) legislative recognition. Giannelli, 

Baldwin’s Ohio Practice, Evidence (3d Ed.), Section 702.8 (2010). It is this fourth 

method, the admissibility of evidence through legislative or statutory recognition, that is 

at issue in this case. 

{¶13} Ms. Hatcher was charged under R.C. 4511.19(B)(3). “For purposes of 

sections 1547.11, 4511.19, and 4511.194 of the Revised Code, the director of health 

shall determine, or cause to be determined, techniques or methods for chemically 

analyzing a person’s whole blood, blood serum or plasma, urine, breath, or other bodily 

substance in order to ascertain the amount of alcohol, a drug of abuse, controlled 

substance, metabolite of a controlled substance, or combination of them in the person’s 

whole blood, blood serum or plasma, urine, breath, or other bodily substance. The 

director shall approve satisfactory techniques or methods, ascertain the qualifications of 
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individuals to conduct such analyses, and issue permits to qualified persons authorizing 

them to perform such analyses.” R.C. 3701.143. 

{¶14} Furthermore, R.C. 4511.19(D)(1)(b) states that “[i]n 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 substances, metabolites of a 

controlled substance, or a combination of them in the defendant’s whole blood, blood 

serum or plasma, breath, urine, or other bodily substance at the time of the alleged 

violation as shown by chemical analysis of the substance withdrawn within three hours 

of the time of the alleged violation,” and “[t]he bodily substance withdrawn under division 

(D)(1)(b) of this section shall be analyzed in accordance with methods approved by the 

director of health by an individual possessing a valid permit issued by the director 

pursuant to section 3701.143 of the Revised Code.” 

{¶15} Reading these two code sections, it becomes evident that the legislature 

specifically delegated the power to determine the reliability of certain evidential breath 

testing instruments to the Director of Health. Questions of this delegation of authority to 

the executive branch, and the constitutionality of mandatory judicial notice of the 

reliability of this particular new breathalyzer machine under a separation of powers 

theory are not squarely before us today. Therefore, we limit our analysis to the narrow 

question that is before us and leave the resolution of those questions to another day 

and another case. 

{¶16} It has been asserted that “‘[u]nder [such] * * * statutes, the questions of 

relevancy, and to a large extent weight, of the evidence, have thus been legislatively 

resolved. The presumptions have been upheld by the courts * * * and the prescription 
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for test procedures adopted by the state health agency has been taken as acceptance 

of the general reliability of such procedures in showing blood-alcohol content.’” State v. 

Vega, 12 Ohio St.3d 185, 188 (1984), quoting McCormick on Evidence (2 Ed. Cleary 

Ed. 1972) 511-513, Section 209. “It is evident from the statutory scheme upon the 

subject that it was the intention of the General Assembly to meet and address the 

problem of drunken drivers upon the roads of Ohio and to do so by legislatively 

providing for the admission into evidence of alcohol test results, including breath tests, if 

conducted in accordance with procedures adopted by the Director of Health * * *. Such 

delegation is not novel and is utilized in such states as Alabama, Connecticut, Missouri 

and Florida.” State v. Brockway, 2 Ohio App.3d 227, 231 (4th Dist.1981) 

{¶17} The issue of whether breath test reliability can and must be determined by 

an evidentiary hearing before the trial judge, prior to presentation of the evidence of the 

results to a jury, has been the subject of debate for some years. In the preeminent case 

on the matter, the Supreme Court of Ohio, in no uncertain terms, stated that “‘[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 adoption of appropriate tests and procedures, including 

breath tests.’” Vega at 188-189, quoting Brockway at 231. 

{¶18} “The presumption created by the scientific test is thus to be considered by 

the jury and the court along with other evidence as to whether or not the accused was 

intoxicated.” Id. at 189. Thus, “[t]he discretion of the court concerns not the general 

acceptability of the test but solely the criteria which are prescribed to govern the testing 
 8

procedure. To hold otherwise would completely nullify the presumption established. 

Any issue of reliability may, of course, be raised as matter of weight in the trial of the 

charge.” State v. Warnecke, 3d. Dist. No 12-81-3, 1981 Ohio App. LEXIS 11071, *4 

(Nov. 30, 1981). 

{¶19} This court has recognized that the result of the Vega decision is “that, 

because the legislature has delegated to the Director of the Ohio Department of Health, 

rather than the courts, the discretionary authority to determine which tests and 

procedures are reliable and thus admissible in an OVI prosecution, ‘an accused may not 

make a general attack upon the reliability and validity of the breath testing instrument.’” 

State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702, ¶87 (11th Dist.), quoting Vega at 

190. It is well settled, however, “that while a defendant ‘may not challenge the general 

accuracy of the legislatively determined test procedure as a valid scientific means of 

determining blood-alcohol levels, he may challenge the accuracy of his specific test 

result.’” City of Willoughby v. Eckersley, 11th Dist. No. 99-L-061, 2000 Ohio App. 

LEXIS 2656, *11 (June 16, 2000), quoting Columbus v. Day, 24 Ohio App.3d 173, 174 

(10th Dist.1985). See also State v. Tanner, 15 Ohio St.3d 1 (1984). Other Ohio 

appellate courts have consistently held the same. See, e.g., State v. Luke, 10th Dist. 

No. 05AP-371, 2006-Ohio-2306; State v. Columber, 3d Dist. No. 9-06-05, 2006-Ohio5490; State v. Birkhold, 5th Dist. No. 01CA104, 2002-Ohio-2464; City of Dayton v. 

Futrell, 2d Dist. No. CA 8515, 1984 Ohio App. LEXIS 11631 (Oct. 26, 1984). 

{¶20} As noted earlier, this court recently provided its latest interpretation of 

Vega in Rouse and Carter. Rouse correctly recognizes that “[i]n Vega, the court clearly 

endorsed the legislative delegation of R.C. 3701.143,” but then goes on to state that 

Vega establishes a “rebuttable presumption of reliability of R.C. 4511.19(D)(1)(b).” Id.
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at ¶21. This statement requires clarification of what presumption is actually rebuttable. 

The rebuttable presumption presented in Vega is that of the defendant’s intoxication 

based on use of one of the Health Director approved machines in accordance with the 

Health Director’s guidelines. The presumed reliability of the science behind the test 

results from one of the approved machines is not a rebuttable presumption and may not 

be challenged through a pre-trial motion. Rather, the conclusion of intoxication based 

on test results from one of these machines is the rebuttable presumption, open to attack 

via the demonstration of a lack of reliability of the defendant’s specific test results, i.e. 

the application of the statutorily admissible science utilized by the test machines to the 

defendant’s particular sample and circumstances. See Dayton, supra. 

{¶21} It is nothing new for this court to require that a trial court accord due 

deference to the director of health in matters of scientific expertise, where a statute 

establishes the director’s authority. See, e.g., State v. Ferrato, 167 Ohio App.3d 136, 

2006-Ohio-3219 (11th Dist.). Furthermore, affirmed by the Supreme Court of Ohio in 

State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, we upheld the constitutionality of 

an analogous legislative determination of admissibility related to field sobriety testing. 

See State v. Boczar, 11th Dist. No. 2004-A-0063, 2005-Ohio-6910. In affirming this 

court’s determination, the Supreme Court stated that “the new legislation replaced the 

common-law standard of admissibility * * *.” Boczar at ¶22. 

{¶22} Therefore, the “legislative mandate for admissibility obviates the need for 

trial courts to determine admissibility based upon reliability of the processes and 

methods underlying the use of breath testing machines. It follows, then, that because 

the [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 

L.Ed.2d 469 (1993)] inquiry involves only determinations as to the reliability of the 
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principles and methods upon which a particular scientific result is based, the legislative 

mandate recognized in Vega forestalls the need for any Daubert analysis in cases such 

as the present one.” Luke, supra, at ¶24. Essentially, method number three of 

establishing the reliability of scientific evidence, presentation of evidence, is 

unnecessary, because method number four, legislative recognition, has occurred. See

¶11, supra. The trial court has been relieved of the responsibility of determining the 

scientific reliability of breath test machines, and to proceed with a Daubert/Miller hearing 

would be an improper substitution of “the court’s judgment as to the reliability of the 

testing procedures for that of the Director of Health.” Brockaway at 231. 

{¶23} We note, however, that such statutory recognition is “not without 

problems. For example, in State v. Vega, the Ohio Supreme Court held that, once the 

Intoxilyzer was legislatively recognized ‘an accused may not make a general attack 

upon the reliability and validity of the breath testing instrument.’ This holding is 

inconsistent with Rule 104(E), which provides that a ruling on the admissibility of 

evidence does not limit the ‘right of a party to introduce before the jury evidence 

relevant to the weight or credibility.’” Giannelli, supra.

{¶24} Therefore, the statutory recognition of the Intoxilyzer 8000’s admissibility 

in our view does not prevent a defendant from introducing evidence as to the general 

unreliability of this specific machine through the use of expert opinion testimony. Such 

testimony does not challenge the admissibility of the breath test results; rather it 

challenges the weight and credibility to be given to the results. A defendant who wishes 

to call such an expert at trial would merely be constrained by the requirements of 

Crim.R. 16(K) and Evid.R. 702. Determination of the admissibility of a defendant’s 

expert in such circumstances would appropriately be resolved through a pre-trial 
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Daubert/Miller hearing, where the defendant would carry the burden of establishing the 

evidentiary foundation for the admission of such expert’s testimony. 

Application to Ms. Hatcher’s Case

{¶25} Pursuant to Ohio Adm. Code 3701-53-02(A), the Director of Health has 

specifically approved the following evidential breath testing instruments: BAC 

DataMaster; BAC DataMaster K; BAC DataMaster cdm; Intoxilyzer model 5000 series 

66, 68 and 68 EN; and Intoxilyzer model 8000 (OH-5). Ms. Hatcher was tested using an 

Intoxilyzer 8000, one of the health director-approved instruments. Therefore, the trial 

court was obliged to recognize the general admissibility of Ms. Hatcher’s test results. 

{¶26} Ms. Hatcher initially filed a motion to suppress, challenging, among other 

things, the reliability of her specific test results based on noncompliance with the Ohio 

Department of Health’s regulations. Her motion also contained a general challenge to 

the Intoxilyzer 8000 and essentially sought a Daubert hearing on the issue of 

admissibility; the kind of challenge specifically prohibited under Vega and its progeny. 

In the wake of the state’s refusal to put on Daubert evidence, the trial court granted the 

motion, and determined the breath test results to be inadmissible at trial. This 

determination was in direct contravention of binding precedent: Vega out of the 

Supreme Court, and Urso, Ferrato, and Eckersley out of this court. It is, also, 

substantially out of sync with the prevailing position on this issue taken by the majority 

of Ohio appellate districts. 

{¶27} The trial court’s position, as the court in Vega put it, “simply fails to afford 

the legislative determination that intoxilyzer tests are proper detective devices the 

respect it deserves.” Vega at 188. The trial court thus erred as a matter of law when it 

issued a judgment entry in direct contravention of both binding precedent and 
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substantial persuasive authority. We, therefore, reverse the decision of the Portage 

County Municipal Court, Ravenna Division, and remand for further proceedings 

consistent with this opinion. 

{¶28} Upon remand, the trial court may not require the state to present evidence 

of the Intoxilyzer 8000’s general reliability. So long as Ms. Hatcher’s test was 

administered in substantial compliance with the Ohio Department of Health’s directives, 

the results will be admissible at trial. Ms. Hatcher may pursue a challenge to the 

reliability and weight of her specific test results, however, through her original motion to 

suppress, or at trial. 

{¶29} It is at this point that we must question the procedure upon remand 

outlined in Rouse and Carter, as we find these cases may have created an improper 

burden shifting requirement when the state is faced with a specific challenge to the test 

results. The Rouse court held that upon remand, “[defendant] is entitled, but has the 

burden of production, to specifically challenge the results of her breath test.” (Emphasis 

added.) We agree with the concurring opinion in Rouse, that “the state bears the 

burden of showing compliance with regulations prescribed by the Ohio director of 

health.” Id. at ¶25. 

{¶30} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, the Supreme 

Court of Ohio clearly laid out the manner in which burden shifting is to occur in a motion 

to suppress specific alcohol test results. “The defendant must first challenge the validity 

of the alcohol test by way of a pretrial motion to suppress * * *. After a defendant 

challenges the validity of the test results in a pretrial motion, the state has the burden to 

show that the test was administered in substantial compliance with the regulations as 

prescribed by the Director of Health. Once the state has satisfied this burden and 
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created a presumption of admissibility, the burden then shifts to the defendant to rebut 

that presumption by demonstration that he was prejudiced by anything less than strict 

compliance. State v. Brown (1996), 109 Ohio App.3d 629, 632, 672 N.E.2d 1050. 

Hence, evidence of prejudice is relevant only after the state demonstrates substantial 

compliance with the applicable regulation.” Id. at ¶24. 

{¶31} Therefore, upon remand, Ms. Hatcher may pursue a motion to suppress 

his test results so long as the challenge is specific in nature. Any suppression hearing 

will be conducted in accordance with the procedure that was clearly delineated in 

Burnside and has been, for decades, the common practice by courts within this district 

and all others in Ohio. 

{¶32} The decision of the Portage County Municipal Court, Ravenna Division, is 

reversed and remanded for further proceedings consistent with this opinion.

DIANE V. GRENDELL, J., 

THOMAS R. WRIGHT, J., dissents with Dissenting Opinion. 

____________________ 

THOMAS R. WRIGHT, J., dissents with Dissenting Opinion. 

{¶33} R.C. 4511.19(D)(1)(b) does not mandate admissibility of breath test 

results derived from the Intoxilyzer 8000. Rather, that statute which, by its plain 

language controls the issue in this case, vests the trial court with discretion regarding 

admissibility despite approval from the director. I, therefore, respectfully dissent. 

{¶34} R.C. 3701.143 empowers the director to approve breath testing devices, 

and R.C. 4511.19(D)(1)(b) grants trial courts the discretion to admit the results from 
 14

approved devices without further proof of reliability when circumstances warrant. 

Although some claim the contrary, nobody is correct all the time. In recognizing human 

fallibility, the legislature had the wisdom to vest within the trial court the discretion per 

R.C.4511.19(D)(1)(b) to conduct further inquiry when there is an issue as to the 

reliability of an approved breath testing device before admitting the results. 

{¶35} R.C. 4511.19(D)(1)(b) states that “[i]n 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 substances, metabolites of a controlled substance, 

or a combination of them in the defendant’s whole blood, blood serum or plasma, 

breath, urine, or other bodily substance at the time of the alleged violation as shown by 

chemical analysis of the substance withdrawn within three hours of the time of the 

alleged violation[,]” and “[t]he bodily substance withdrawn under division (D)(1)(b) of this 

section shall be analyzed in accordance with methods approved by the director of 

health by an individual possessing a valid permit issued by the director pursuant to 

section 3701.143 of the Revised Code.” (Emphasis added.) 

{¶36} 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). 

{¶37} 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 
 15

consistent with the discretion it possesses under R.C.4511.19(D)(1)(b). As reliability 

presents a threshold admissibility issue, reliability, as opposed to the weight to be 

afforded any admitted evidence, is one for the trial court. Knott v Revolution Software 

Inc. 181 Ohio App.3d 519, 2009-Ohio-1191, ¶45 (5th Dist.); State v. Riley, 6th Dist. No. 

WD-03-076, 2007-Ohio-879, ¶27 (expert testimony must be deemed reliable before it is 

deemed admissible.); Saad v. Shimano American Corp., 2000 U.S. Dist. LEXIS 10974, 

*7 (N.D. Ill. 2000)(The Supreme Court has made it clear that the courts must allow into 

evidence only expert testimony that meets certain threshold standards of reliability and 

usefulness). 

{¶38} Moreover, the determination of evidential reliability necessarily implicates 

the defendant’s substantive due process rights. 

{¶39} “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). 

{¶40} 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). 
 16

{¶41} 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 the general reliability of the Intoxilyzer 8000 before admitting the 

results. Given the constitutional gravity of admitting unreliable results, however, and its 

statutory authority to act as gatekeeper regarding breath test results, the lower court’s 

decision to require the state to produce evidence of the machines reliability was an 

eminently reasonable and sound legal decision. “[A]n abuse of discretion is the trial 

court’s ‘failure to exercise sound, reasonable, and legal decision-making.’” State v. 

Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 

(8 Ed.Rev.2004) 11. 

{¶42} 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. 

{¶43} 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. 

{¶44} 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. See also State v. Vega, 5th 
 17

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 

case before us. Moreover, unlike Vega, our case is not about the reliability of 

intoxilyzers in general. Our case is limited to whether the Intoxilyzer 8000 is reliable. In 

short, the circumstances at issue in Vega were fundamentally distinguishable from 

those in our case. 

{¶45} 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. 

{¶46} 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 R.C. 4511.19(D)(1)(b). 

{¶47} 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 
 18

Intoxilyzer 8000 is generally reliable. Under the circumstances, this decision was sound 

and reasonable. This is particularly true in light of the fact that a trial court is vested 

with broad discretion in the admission or exclusion of evidence and in recognition that it 

has inherent power to exclude or strike evidence on its own motion. Caroll v Caroll, 7th 

Dist. No. 89-C-1, 1990 Ohio App. LEXIS 1339, *8 (April 5, 1990); Neil v. Hamilton 

County, 87 Ohio App.3d 670; Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69, 70 

(10th Dist. 1988). 

{¶48} 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. 

{¶49} 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 
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different result is not enough, without more, to find error.” Sertz v. Sertz, 11th Dist. No. 

2011-L-063, quoting Beechler, 2010-Ohio-1900 at ¶67. 

{¶50} 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.