[Cite as State v. Morrison , 2013-Ohio-4117.]

IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellant, : CASE NO. 2012-P-0122 - vs - : GILBERT H. MORRISON, : Defendant-Appellee. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 8164. 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 Carolyn K. Mulligan, Assistant Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266 (For Defendant-Appellee).

CYNTHIA WESTCOTT RICE, J. {¶1} The state of Ohio appeals the judgment of the Portage County Municipal Court, Ravenna Division, which granted appellee, Gilbert Morrison’s, motion to suppress the results of his Intoxilyzer 8000 test. This court recently held in State v. Carter , 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, that the Intoxilyzer 8000 is presumed reliable, and that the defendant is entitled, but has the burden of production, to specifically challenge the general reliab ility of the Intoxilyzer 8000. Based on this2 court’s precedent in Carter , we reverse the trial court’s judgment, and remand this matter for further proceedings consistent with this opinion. {¶2} On June 9, 2012, at about 2:30 a.m., Morrison was stopped by police for driving without headlights. A breath test was administered using an Intoxilyzer 8000, the results of which showed that Morrison’s blood-alcohol concentration was .220, nearly three times the legal limit. He was cited for operating his vehicle under the influence of alcohol and driving with a prohibited blood-alcohol concentration, in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h), respectively. He was also cited for driving without headlights, in violation of R.C. 4513.03. Morrison pled not guilty. {¶3} The state filed a “brief regarding Intoxilyzer 8000 hearing.” The state argued that it was not required to present evidence that the Intoxilyzer 8000 is reliable because the legislature had delegated this determination to the Director of Health and the Supreme Court of Ohio upheld this delegation of authority in State v. Vega , 12 Ohio St.3d 185 (1984). {¶4} Thereafter, Morrison filed a motion to suppress the results of his breath test, challenging the general reliability of the Intoxily zer 8000. His mo tion challenged the admissibility of the results of his breath te st, the results of his field sobriety tests, and his statements to police. In support of his motion to suppress his breath-test results, Morrison listed several specific challenges to his breath test. For example, he argued the person administering his breath test was not qualified; the machine was not operating properly; and his test was not administered correctly. {¶5} In the trial court’s judgment ruling on Morrison’s motion to suppress, the court limited its review of his motion to the admissibility of his breath-test results from3 the Intoxilyzer 8000, and did not address any of his specific challenges to his test results. The court granted Morrison’s motion to suppress, holding that the state was required to produce evidence that the Intoxilyzer 8000 is reliable in order for his test results to be admissible at trial. The court held that, because the state did not produce evidence of the reliability of the Intoxilyzer 8000, Morrison’s breath-test results from the Intoxilyzer 8000 were not admissible at trial. The court stated that the remaining charges alleging violations of R.C. 4511.19(A)(1)(a) and R.C. 4513.03 would be set for trial, implying that the per-se OVI charge under R.C. 4511.19(A)(1)(h) was dismissed. {¶6} The trial court granted the state’s motion to stay execution of the judgment. {¶7} The state appeals the trial court’s judgment, asserting the following for its sole assignment of error: {¶8} “The Portage County Municipal Court erred in permitting a general attackon the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and wellestablished case law.” {¶9} We review a trial court’s legal determinations at a suppression hearing de

novo. State v. Dijsheff , 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19. {¶10} This court has recently ruled on this exact issue in Carter , supra. In Carter , this court reversed the trial court’s decision requiring the state to shoulder the initial burden of production to establish th e general reliability of the Intoxilyzer 8000.This court held that once the state has demonstrated a statutorily-approved breathtesting device was used, a presumption of reliability attaches. Id. at ¶14. Further, this court held that once the presumption attaches, a defendant is entitled to make specific4 challenges in a motion to suppress to the general reliability of the Intoxilyzer 8000. Id. at ¶43. In State v. Miller , 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, this court also held: {¶11} In addition to attacks on the specif ic 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 St ate failed to prove its reliability, which is prohibited under Vega. See Vega at 189. Miller, supra , at ¶32. {¶12} Further, In Miller , this court held a defendant can make “specific challenges to the Intoxilyzer’s reliability,” and “[a] defendant may * * * challenge the reliability of the Intoxilyzer 8000 with specific arguments * * *.” Id . at ¶33. {¶13} Further, this court has held that, because the Intoxilyzer 8000 is presumed reliable, the defendant has the burden of production to present evidence that the Intoxilyzer 8000 is not reliable. Carter at ¶39. If the defendant satisfies his initial burden, the burden of proof then shifts to the state to produce evidence establishing the machine’s reliability. {¶14} As a practical matter, after both parties present evidence in support of their respective positions, the trial court determines whether the defendant has met his initial burden of production. If the court determines that the defendant has not met his5 burden of production, the motion shall be denied. However, if the court finds that the defendant has satisfied his burden, the court shall then determine whether the state has satisfied its burden of proof. If it has, the motion shall be denied. However, if it has not, the motion shall be granted. {¶15} The foregoing burden-shifting procedure has long been followed by federal and state courts in the analogous c ontexts of apparently lawful searches and confessions. With respect to searches following the issuance of a search warrant, a defendant has the initial burden to establish a prima facie case that the search was not lawful. Once that burden is met, the burden shifts to the state to prove the search was lawful. United States. v. Whitten , 848 F.2d 195, 1988 U.S. App. LEXIS 6485, *3 (6th Cir.); United States v. Murrie , 534 F.2d 695, 697-698 (6th Cir.1976); United States v. Triumph Capital Group, Inc., 2003 U.S. Dist. LEXIS 24776, *7-*8 (D.Conn.). Further, “[t]here are shifting burdens in suppression hearings regarding confessions.” United States v. Burnette , 535 F.Supp.2d 772, 782 (E.D.Tex.2007). After the defendant satisfies his initial burden to show his confession was the result of a custodial interrogation, the burden shifts to the govern ment to prove the evidence was not illegally obtained, i.e., that the Miranda warnings were given; the defendant waived them; and the confession was voluntary. Id. It is worth noting that trial courts typically decide whether the parties met their respective burdens after all evidence has been presented. See e.g. Triumph , supra , at *8; Murrie , supra , at 696-698; Burnette , supra , at 779-780; State v. Saffell , 9th Dist. No. 2928, 1995 Ohio App. LEXIS 3060, *2-*4 (July 19, 1995); United States v. Bonds , 2006 U.S. Dist. LEXIS 3436, *3-*5 (S.D.Miss.).6 {¶16} While Morrison presented some specific challenges to his breath-test results in his motion to suppress, the trial court did not address them in its judgment. Moreover, Morrison does not assert them on appeal. As a result, we cannot consider them. {¶17} Pursuant to Carter , we hold the trial court erred in requiring the state to produce evidence of the Intoxilyzer 8000’s g eneral reliability, in granting Morrison’s motion, and in excluding the results of his breath test. {¶18} Therefore, on remand, the trial court is instructed to reinstate Morrison’s per-se charge. Further, on remand, Morrison is entitled, but has the burden of production, to specifically challenge t he general reliability of the Intoxilyzer 8000 according to the burden-shifting procedure outlined above. {¶19} 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.

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion, COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

______________________ DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion. {¶20} I concur in the judgment of this court, that “the trial court erred in requiring the state to produce evidence of the In toxilyzer 8000’s general reliability.” Supra at ¶
17.7 {¶21} I write separately, however, because I do not concur that a defendant bears the burden of production when challenging breath test results obtained from the Intoxilyzer 8000 in the context of a suppression hearing for the reasons stated in my concurring/dissenting opinions in State v. Carter , 11th Dist. No. 2012-P-0027, 2012- Ohio-5583, and State v. Rouse , 11th Dist. No. 2012-P-0030, 2012-Ohio-5584. {¶22} In support of her position, the writing judge analogizes specific challenges to the instrument’s general reliability to unconstitutional searches and seizures, such as where a defendant challenges a search that was conducted pursuant to a valid warrant with supporting affidavits. C hallenges to the specific reliability of the Intoxilyzer 8000 are more properly understood in the context of challenges to scientific reliability as discussed in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Miller v. Bike Athletic Co. , 80 Ohio St.3d 607, 687 N.E.2d 735 (1998), rather than in the context of the Fourth Amendment exclusionary rule. A Daubert / Miller analysis focuses on the reliabilit y of the underlying scientific principles and/or methodol ogy involved, rather than the reliability of specific test results. Daubert at 595; Miller at 611-612. {¶23} The problem with analogizing to Daubert / Miller to justify shifting the burden of demonstrating unreliability to the defendant is that this court has repeatedly held that the reliability of the Intoxilyzer 8000 cannot be challenged under Daubert / Miller

. See Rouse , 2012-Ohio-5584, at ¶ 28 (“appellee’s argument that the Intoxilyzer 8000 is unreliable was an attack on the general reliability of a directorapproved breath-testing instrument, which is prohibited by Vega ,” accordingly “we8 maintain a Daubert hearing is unnecessary as it pertain s to the general reliability of the Intoxilyzer”); Carter , 2012-Ohio-5583, at ¶ 40 (the same). {¶24} The writing judge’s present position appears to contradict this court’s earlier pronouncements that challenges to the Intoxilyzer 8000 based on its general reliability may not be raised to suppress the test results. In contrast, this court has recognized that such challenges may be properly raised at trial, with the evidence going to the weight rather than the admissibility of the evidence. State v. Miller , 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, ¶ 31 (cases cited); State v. Hatcher , 11th Dist. Nos. 2012-P-0077 and 2012-P-0078, 2013-Ohio-445, ¶ 24 (“the statutory recognition of the Intoxilyzer 8000’s admissibility * * * does not prevent a defendant from introducing evidence as to the general un reliability of this specific machine through the use of expert opinion testimony,” where “[s]uch testimony does not challenge the admissibility of the breath test results; rather it challenges the weight and credibility to be given to the results”). {¶25} The writing judge presents no convincing argument as to why the established procedures for conducting a hearing to suppress breath test results should be ignored when the subject of the motion concer ns the Intoxilyzer 8000. Therefore, in regard to the preceding statements, I concur in judgment only.

______________________ COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶26} I respectfully dissent.9 {¶27} As the writing judge 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 Health for use in OVI cases must, automatically, be accepted into evidence, so long as the operator is competent and the machine functional. {¶28} 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. {¶29} 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. {¶30} 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. {¶31} Third, the court noted that under the version of R.C. 4511.19 then current, the results of a breath analysis exceeding the statutory level merely created a rebuttable presumption that the defendant was intoxicated, which did not prevent the defendant10 showing, through other evidence, that he or she was not, in fact, under the influence of alcohol. Vega , 12 Ohio St.3d at 188-189. {¶32} Based on this last point, it would appear that Vega is no longer good law. The Parma Municipal Court recently so found in Parma v. Malinowski , Parma M.C. No. 12TRC 03580 (April 22, 2013) (Spanagel, J.). As that court states: {¶33} “The majority in Vega themselves set forth the (sic) in their own logic why Vega is no longer good law, when they stated:

{¶34} “‘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 R.C. 4511.19. The presumption created by R.C. 4511.19 is that the accused was under the influence of alcohol. ‘The effect of the presumption is to eliminate the necessity of proof by the prosecution of the effect of alcohol on the individual when the level is within the range established by the presumption. The statute does not create an absolute presumption, but only a rebuttable one (* * *). {¶35} “ 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 go11 forward with evidence, the ‘(* * *) (d)efendant cannot be heard to complain that the provisions of R.C. 4511.19 eliminate his presumption of innocence or hamper the presentation of his defense.’ State v. Myers [(1971), 26 Ohio St.2d [190,] 201, * * *. The presumption created by the scientific test is thus to be considered by the jury and the court along with the other evidence as to whether or not the accused was intoxicated. Whether the presumption was overcome by the evidence presented is a question of fact for the jury.’ * * * {¶36} “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.) (Parallel citations omitted.) Malinowski at 8-9. {¶37} 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 conclusive effect. {¶38} 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. {¶39} R.C. 4511.19(D)(1)(b) states in part:12 {¶40} “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 substances, metabolites of a controlled subs tance, 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.) {¶41} 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, R.C. 4511.19(D)(1)(b) does not mandate admissibility of the results of the breath test. Rather, the statute vests the trial court with discretion in making a deter mination with respect to admissibility, notwithstanding approval from the director of health. As my colleague, Judge Wright, has recently stated in a series of penetrating dissents: {¶42} “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 approved devices without further proof of reliability when circumstances warrant.13 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 devic e before admitting the results.” State v. Collazo , 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶38. 1 {¶43} 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 specifica lly. A breath analysis machine could only be “proper equipment” if it is reliable. {¶44} As Judge Wright further noted in Collazo : {¶45} “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 R.C. 4511.19(D)(1 )(b). As reliability presents a threshold admissib ility issue, reliability, as opposed to the weight to be

1. See also Johnson , 11th Dist. No. 2012-P-0008, 2013-Ohio-440; State v. Schrock , 11th Dist. No. 2012- P-0022, 2013-Ohio-441; State v. Harmon , 11th Dist. No. 2012-P-0067, 2013-Ohio-442; State v. Funk , 11th Dist. No. 2012-P-0071, 2013-Ohio-444; State v. Hatcher, 11th Dist. Nos. 2012-P-0077 and 2012-P0078, 2013-Ohio-445; State v. Webb , 11th Dist. No. 2012-P-0052, 2013-Ohio-541; State v. Neice , 11th Dist. No. 2012-P-0064, 2013-Ohio-542; State v. Butler , 11th Dist. No. 2012-P-0066, 2013-Ohio-543; State v. Lucas , 11th Dist. No. 2012-P-0070, 2013-Ohio-544; State v. Pizzino , 11th Dist. Nos. 2012-P-0079 and 2012-P-0080, 2013-Ohio-545; State v. Kuntz , 11th Dist. No. 2012-P-0082, 2013-Ohio-546; State v. McCune , 11th Dist. No. 2012-P-0089, 2013-Ohio-547; State v. Zoeckler , 11th Dist. No. 2012-P-0092, 2013-Ohio-548; State v. Tagliaferri , 11th Dist. No. 2012-P-0094, 2013-Ohio-549; State v. Hinton , 11th Dist. No. 2012-P-0095, 2013-Ohio-550; State v. Canino , 11th Dist. No. 2012-P-0102, 2013-Ohio-551.14 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, *8 (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). {¶46} “Moreover, the determination of evidential reliability necessarily implicates the defendant’s substantive due process rights. {¶47} “‘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). {¶48} “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, * * *.” (Parallel citations omitted.) Collazo , 11th Dist. No. 2012-L-067, 2013-Ohio-439, ¶41-44.15 {¶49} As the Court of Appeals, Tenth Appellate District has observed: {¶50} “Substantive due process prohibits the government from infringing upon fundamental liberty interests in any manner, regardless of the procedure provided, unless the infringement survives strict scrutiny; i.e., the government’s infringement must be ‘narrowly tailored to serve a compelling state interest.’ Reno v. Flores (1993), 507 U.S. 292, 302, * * *.” In re M.D. , 10th Dist. No. 07AP-954, 2008-Ohio-4259, ¶9. {¶51} Case law indicates serious problems regarding the reliability of the Intoxilyzer 8000, which make it incumbent on tr ial 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. I d . 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: {¶52} “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 *7-8.16 {¶53} 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 the Gerome court found, “In the ODH certification of this instrument, access to the source code was apparently not deemed necessary.” Id. {¶54} “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). {¶55} 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. {¶56} 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. Conseq uently, 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 state17 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 defendant’s substantive due process rights cannot be overridden by a legislative enactment, and there is no need to interpret Ohio’s laws regarding approval of breath analysis machines in a way that does. Similarly, the decision in Vega , premised on the use of “proper equipment,” necessarily recognizes the duty of our trial courts to protect defendants’ substantive due process rights by requiring them to insure that the equipment is proper. Vega , 12 Ohio St.3d at 186. {¶57} For all the reasons foregoing, I would affirm the judgment of the trial court.