[Cite as State v. Kuntz, 2013-Ohio-546.]

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-0082

 - vs - :

JONATHAN R. KUNTZ, :

 Defendant-Appellee. :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. 

R2012 TRC 01433. 

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). 

Errol A. Can, Williams, Welser, Kratcoski & Can, L.L.C., 11 South River Street, Suite A, 

Kent, OH 44240 (For Defendant-Appellee). 

TIMOTHY P. CANNON, P.J. 

{¶1} Appellant, the state of Ohio, pursuant to Crim.R. 12(K), appeals the 

judgment of the Portage County Municipal Court, Ravenna Division, granting the motion 

to suppress the results of the Intoxilyzer 8000 breath test of appellee, Jonathan R. 

Kuntz. At issue is whether the state has the burden at a suppression hearing to 

establish the general scientific reliability of the breath test machine absent any specific 
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challenge to the conduct of the subject test. For the reasons discussed below, we 

reverse the decision of the trial court and remand the matter for further proceedings. 

{¶2} Appellee was stopped by the Ohio State Highway Patrol for excessive 

speed, in violation of R.C. 4511.21(C), and failure to reinstate his license plate, pursuant 

to R.C. 4510.21. The trooper noticed a strong odor of alcohol, slurred speech, and 

glassy eyes. At the police station, the trooper administered a breath test utilizing the 

Intoxilyzer 8000. The result of the breath test revealed that appellee’s blood alcohol 

concentration was .190. As a result, appellee was cited for operating a vehicle under 

the influence of alcohol and driving with a prohibited blood alcohol content, in violation 

of R.C. 4511.19 (A)(1)(a) and R.C. 4511.19(A)(1)(d). Appellee pled not guilty to the 

charges. 

{¶3} After appellee entered a not guilty plea, he filed a motion to 

suppress/motion in limine. The matter proceeded to a hearing. The trial court, relying 

upon its decision in State v. Johnson, held: “The results of the breath test from the 

Intoxilyzer 8000 are not admissible at the trial of the Defendant. The remaining charges 

alleging a violation of ORC 4511.19(A)(1)(a), 4511.21(C) and 4510.21 shall be set for 

trial on the Court’s docket.” 

{¶4} The state timely appealed and presents a single assignment of error for 

our review: 

{¶5} “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.” 
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{¶6} At the outset, we note the state did not provide this court with a transcript 

of the hearing on appellee’s motion to suppress held on June 22, 2012. However, from 

the trial court’s judgment entry, it is evident the state did not present any evidence at the 

hearing. In its entry, the trial court noted that it limited its review of appellee’s motion 

“solely to the admissibility of a BAC test from the Intoxilyzer 8000.” Therefore, the trial 

court made a legal determination that the state was required to produce evidence 

regarding the reliability of the Intoxilyzer 8000. 

{¶7} On appeal, the state contends it is not required to produce expert 

witnesses to convince the municipal court of the general scientific reliability of the 

Intoxilyzer 8000 as a threshold matter before offering into evidence the breath test 

results. The state maintains the legislature has chosen to delegate this determination to 

the Ohio Director of Health, and this delegation has been upheld by the Ohio Supreme 

Court in Vega. Although the state argues a defendant cannot launch a general attack 

on the breathalyzer machine, it concedes that a defendant may attack his specific 

breath test results. 

{¶8} In response, appellee argues there is a requirement that scientific 

evidence meet threshold standards of reliability before its admittance. Appellee 

maintains the trial court was required to make a threshold determination regarding the 

admissibility of the scientific results produced by the Intoxilyzer 8000, and as the state 

failed to present any evidence to satisfy this evidentiary threshold, the trial court 

properly excluded appellee’s breath test results. 

{¶9} Both below and on appeal, the state relies upon the Ohio Supreme Court’s 

holding in Vega to support its argument that it does not have an obligation to meet the 
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threshold requirement to present evidence of the reliability of the Intoxilyzer 8000 before 

the introduction of breath test results. 

{¶10} We review a trial court’s legal determinations at a suppression hearing de 

novo. State v. Djisheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19. 

{¶11} The issue raised in this appeal is identical to the issue raised in State v. 

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

2012-P-0027, 2012-Ohio-5583; and State v. Johnson, 11th Dist. No. 2012-P-0008, 

2013-Ohio-440. 

{¶12} In these decisions, we recognized the Ohio General Assembly has given 

the Director of Health the authority to determine techniques for chemically analyzing a 

person’s breath in order to ascertain the amount of alcohol contained in the person’s 

breath. R.C. 3701.143. R.C. 4511.19(D)(1) requires breath samples be analyzed for 

alcohol content “in accordance with methods approved by the director pursuant to R.C. 

3701.143.” The director has approved the Intoxilyzer 8000 as an evidential breath 

testing instrument. OAC 3701-53-02(A)(3). 

{¶13} In these decisions, we followed State v. Vega, 12 Ohio St.3d 185 (1984). 

The issue before the Vega Court was whether the defendant may use expert testimony 

to attack the general reliability of intoxilyzers in light of R.C. 4511.19 which provided for 

the admission of the test results if the tests are analyzed according to methods 

approved by the director. The Vega Court held that “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. 
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{¶14} Applying Vega, we held that while a general attack on the reliability of the 

Intoxilyzer is prohibited, the statutory presumption of reliability is nonetheless rebuttable. 

See Johnson at ¶32; Rouse at ¶36. 

{¶15} A defendant is therefore entitled to challenge the specific breath 

test results based on specific alleged deficiencies in the testing 

equipment; the burden, however, is on the defendant to come 

forward with evidence sufficient to overcome the presumption 

afforded to the Director of the Ohio Department of Health as 

determined by the Ohio Supreme Court in Vega. Rouse at ¶39. In 

light of the evidence produced at the hearing, the trial court may 

then determine whether to admit the breath test device. Johnson at 

¶32. 

{¶16} In Johnson, we expressed the reservations that neither R.C. 3701.143 nor 

the administrative code sets forth an objective standard enabling a defendant or the 

courts to understand the criteria used by the director, if any, in approving the selected 

breath test instruments. Id. at ¶26. Based on Vega, however, we nevertheless 

determined that the director’s placement of the breath testing instrument on the 

approved list creates a presumption of its general reliability. Id. at ¶27. This, however, 

does not resolve the issue of admissibility. After the presumption attaches, a defendant 

may make specific challenges to the reliability of the Intoxilyzer 8000. And, in light of 

the evidence adduced at the hearing, a court may determine whether to admit the 

breath test evidence pursuant to its gatekeeping function. See Rouse, supra, passim.

{¶17} The state’s assignment of error is with merit. 
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{¶18} For the foregoing reasons, the judgment of the Portage County Municipal 

Court, Ravenna Division, is reversed, and the matter is remanded for proceedings 

consistent with this opinion. 

CYNTHIA WESTCOTT RICE, J., concurs, 

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

____________________ 

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

{¶19} 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. 

{¶20} 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. 

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. 

{¶21} 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 
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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.) 

{¶22} 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). 

{¶23} 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 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 
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evidence only expert testimony that meets certain threshold standards of reliability and 

usefulness). 

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

the defendant’s substantive due process rights. 

{¶25} “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). 

{¶26} 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). 

{¶27} 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 
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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. 

{¶28} 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. 

{¶29} 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. 

{¶30} 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 

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

those in our case. 

{¶31} 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. 

{¶32} 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). 

{¶33} 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 

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 
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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). 

{¶34} 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. 

{¶35} When an appellate court 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 

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. 
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{¶36} 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.