[Cite as State v. Lucarelli, 2013-Ohio-1606.]

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-0065

 - vs - :

LAURA ANN LUCARELLI, :

 Defendant-Appellee. :

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

R2012 TRC 2778. 

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, #400, 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 evidentiary role as gatekeeper, may pass judgment on the 

general reliability of a breath testing instrument where the Ohio director of health has 
 2

approved such instrument for determining the concentration of alcohol in a person’s 

breath. For the following reasons, we reverse the decision of the court below. 

{¶2} On March 3, 2012, the Ohio State Highway Patrol issued defendantappellee, Laura Ann Lucarelli, a traffic ticket, charging her with OVI, a misdemeanor of 

the first degree in violation of R.C. 4511.19(A)(1)(a) (driving under the influence of 

alcohol) and (d) (driving with a prohibited breath alcohol concentration), and a Lanes of 

Travel violation, a minor misdemeanor in violation of R.C. 4511.25. 

{¶3} On March 7, 2012, Lucarelli entered a plea of not guilty. 

{¶4} On April 18, 2012, Lucarelli filed a Motion to Suppress, seeking “to 

suppress any and all evidence in this case, including tests.” Inter alia, it was argued 

that “the Blood Alcohol Content test result from the Intoxilyzer 8000 is inadmissible and 

scientifically unreliable pursuant to State vs. Johnson (2012) in Portage County 

Municipal Court case 2011 TRC 04090.” 

{¶5} On June 6, 2012, a suppression hearing was held, at which the municipal 

court “limit[ed] its review of Defendant’s Motion to Suppress solely to the admissibility of 

a BAC test from the Intoxilyzer 8000.” The court ruled that “the State of Ohio was 

required to produce some relevant competent evidence to convince the Court that the 

test results from the Intoxilyzer 8000 are scientifically reliable and, therefore, admissible 

at trial.” The State did not produce such evidence, but contended that “the legislature 

mandates the Court admit BAC results from this machine because the Ohio Department 

of Health has approved the Intoxilyzer 8000 in the State of Ohio,” and the “Defendant is 

prohibited from challenging the general reliability of the machine at trial pursuant to 

State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303.” 
 3

{¶6} On June 20, 2012, the municipal court issued a journal entry, granting 

Lucarelli’s Motion to Dismiss: “the breath test results from the Intoxilyzer 8000 are not 

admissible at the trial of Defendant.” 

{¶7} On June 21, 2012, the State filed its Notice of Appeal. 

{¶8} On June 25, 2012, the municipal court, upon the State’s Motion, stayed 

execution of its judgment pending a decision on appeal. 

{¶9} On appeal, the State raises the following assignment of error: 

{¶10} “[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.” 

{¶11} The appropriate standard of review where the lower court’s judgment is 

challenged on a purported misconstruction of the law 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.

{¶12} As a preliminary matter, Lucarelli argues that the appealed judgment is not 

a final order, as it was “limited to an initial evidentiary ruling regarding the admissibility 

of the results of the Intoxilyzer 8000,” and did not address the other “suppression 

issues” raised. Lucarelli’s argument has been previously rejected by this court. 

{¶13} The Ohio Supreme Court has held: “Any motion, however labeled, which, 

if granted, restricts the state in the presentation of certain evidence and, thereby, 

renders the state’s proof with respect to the pending charge so weak in its entirety that 

any reasonable possibility of effective prosecution has been destroyed, is, in effect, a 
 4

motion to suppress. The granting of such a motion is a final order and may be appealed 

pursuant to R.C. 2945.67 and Crim. R. 12(J) [now (K)].” State v. Davidson, 17 Ohio 

St.3d 132, 477 N.E.2d 1141 (1985), syllabus. Accordingly, “[a] pretrial challenge to a 

breathalyzer test, if granted, destroys the state’s case under [former] R.C. 4511.19(A)(3) 

[prohibited breach alcohol concentration], and the state is permitted to appeal pursuant 

to R.C. 2945.67 and Crim. R. 12[(K)(2)].” Defiance v. Kretz, 60 Ohio St.3d 1, 4, 573 

N.E.2d 32 (1991). 

{¶14} In the present case, the municipal court’s decision to exclude the breath 

test results of the Intoxilyzer 8000 “rendered the State’s proof with respect to the 

pending charge, a violation of R.C. 4511.19(A)(1)(d), so weak in its entirety that any 

reasonable possibility of effective prosecution of R.C. 4511.19(A)(1)(d) has been 

destroyed.” Prosecutor’s Certification. Accordingly, it is a final order. See State v. 

Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, ¶ 13-20. 

{¶15} The State argues that, pursuant to Sections 3701.143 and 

4511.19(D)(1)(b) of the Ohio Revised Code, and Ohio Administrative Code 3701-53-

02(A)(3), a trial court is required to accept the Intoxilyzer 8000 as an appropriate device 

for chemically analyzing a person’s breath to ascertain the amount of alcohol in the 

breath. As we have held in prior decisions, we agree. State v. Rouse, 11th Dist. No. 

2012-P-0030, 2012-Ohio-5584; Miller. 

{¶16} “In any criminal prosecution * * * for a violation of division (A) or (B) of 

[R.C. 4511.19] * * *, the court may admit evidence on the concentration of alcohol * * * 

in the defendant’s * * * breath * * * at the time of the alleged violation as shown by 

chemical analysis of the substance withdrawn within three hours of the time of the 
 5

alleged violation.” R.C. 4511.19(D)(1)(b). “The 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.” Id.

{¶17} “For purposes of section[] * * * 4511.19 * * * of the Revised Code, the 

director of health shall determine, or cause to be determined, techniques or methods for 

chemically analyzing a person’s * * * breath * * * in order to ascertain the amount of 

alcohol * * * in the person’s * * * breath * * *.” R.C. 3701.143. 

{¶18} The Ohio director of health has approved the “Intoxilyzer model 8000 (OH5)” as an “evidential breath testing instrument[] for use in determining whether a 

person’s breath contains a concentration of alcohol prohibited or defined by section[] 

4511.19 * * * of the Revised Code.” Ohio Adm.Code 3701-53-02(A)(3). 

{¶19} Lucarelli contends that the use of permissive language in the OVI statute, 

i.e., the word “may” in the phrase “the court may admit evidence on the concentration of 

alcohol,” recognizes the trial court’s discretion to admit and to exclude evidence. 

According to Lucarelli, the court below could, but was not required to, admit the breath 

test results of the Intoxilyzer 8000. 

{¶20} Consideration of Ohio Supreme Court decisions construing the relevant 

statutes compels a different conclusion. In light of these decisions, the trial court’s 

discretion to admit or exclude evidence is restricted to determining whether the breath 

test was conducted “in accordance with methods approved by the director of health” 

and “by an individual possessing a valid permit.” The court’s discretion under R.C. 
 6

4511.19(D)(1)(b) does not permit it to exclude test results based on the “scientific 

accuracy and reliability” of the breath testing device, as was done in the present case. 

{¶21} 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 R.C. 

4511.19 if analyzed in accordance with methods approved by the Director of Health.” 

Id. at 186.1

 

{¶22} In Vega, the Ohio Supreme Court made clear that “an accused may not 

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

Id. at 190. The court explained that, by enacting R.C. 4511.19, the General Assembly 

“ha[s] legislatively resolved the questions of the reliability and relevancy of intoxilyzer 

tests.” Id. at 188. “[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 test devices.” Id. at 188-189, citing 

State v. Brockway, 2 Ohio App.3d 227, 232, 441 N.E.2d 602 (4th Dist.1981). 

{¶23} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in 

Vega. The court has emphasized that, when regulations are promulgated pursuant to 

 

1. In Vega, the defendant sought to challenge the intoxilyzer’s reliability through expert testimony 

presented at trial, whereas, in the present case the defendant seeks to exclude the intoxilyzer’s test result 

by placing the burden on the State to prove reliability. The differing procedural posture of Vega is not 

material to the relevance of its holding for the present case. 
 7

R.C. 4511.19 and 3107.143, “it must be presumed that the Director of Health acted 

upon adequate investigation,” and that the courts “must defer to the department’s 

authority and * * * not substitute our judgment for that of the Director of Health.” State v. 

Yoder, 66 Ohio St.3d 515, 518, 613 N.E.2d 626 (1993). 

{¶24} Lucarelli maintains that trial courts must retain the discretion to refuse to 

admit such test results to “counter balance * * * the Department of Health’s unfettered 

discretion in choosing instruments and promulgating rules for chemical tests.” Under 

Vega, however, defendants are expressly allowed to demonstrate that “there was 

something wrong with the test and the results were erroneous.” Id. at 189. 

{¶25} 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.” R.C. 4511.19(D)(1)(b). Vega

recognized that “[t]here is no question that the accused may * * * attack the reliability of 

the specific testing procedure and the qualifications of the operator,” as well as present 

“expert testimony as to testing procedures at trial going to weight rather than 

admissibility.” Id. at 189. Thus, “[t]he defendant may still challenge the accuracy of his 

specific test results, although he may not challenge the general accuracy of the 

legislatively determined test procedure as a valid scientific means of determining blood 

alcohol levels.” State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d 689 (1984); Columbus 

v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, 933 N.E.2d 317, ¶ 27 (10th Dist.) 

(“while [supreme court precedent] permits evidentiary objections to the test results 

challenging issues such as competency, admissibility, relevancy, authenticity, and 
 8

credibility, it does not indicate that a challenge to the ‘general reliability’ is among the 

permissible challenges”). 

{¶26} 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 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 Miller, 2012-Ohio-5585, at ¶ 

32. 

{¶27} Accordingly, the application of Vega does not sacrifice a defendant’s due 

process rights, as Lucarelli claims. Rather, a trial court retains its authority and 

responsibility to regulate the admission of test results. Where the State fails to 

demonstrate that it followed the procedures set forth by the director of health and/or that 

the operator was properly qualified, test results may be suppressed. A defendant may 

also challenge the accuracy of his specific test results at trial and with evidence going to 

the weight accorded the test results. 

{¶28} Moreover, to interpret R.C. 4511.19(D)(1)(b) and Vega as urged by 

Lucarelli would frustrate the purpose of delegating the authority for approving methods 

of analyzing alcohol concentration in a person’s bodily substance. If the general 

reliability of a particular instrument or method could be challenged despite its approval 

by the director of health, then all methods currently employed by law enforcement are 

vulnerable. Stated otherwise, if the results produced by the Intoxilyzer 8000 may be 

challenged, with the State bearing the burden of proving reliability through expert 
 9

testimony, then so could the results obtained from the Intoxilyzer 5000 and the various 

BAC DataMasters currently approved for use. In like manner, defendants could 

challenge previously approved techniques and methods such as gas chromatography 

and enzyme assays. Ohio Adm.Code 3701-53-03(A). Equally vulnerable to challenge 

would be the methods used for determining concentrations of controlled substances. 

Ohio Adm.Code 3701-53-03(B). Finally, law enforcement would be put in the untenable 

position of speculating what techniques or instruments might be acceptable to the 

courts, with the only recourse being trial and error and appeal throughout Ohio’s more 

than 88 county and municipal jurisdictions. 

{¶29} When Lucarelli’s arguments have been raised in these other contexts, 

they have similarly been rejected. See State v. Klintworth, 4th Dist. No. 10CA40, 2011-

Ohio-3553, ¶ 12 (“this court will not allow the defendant to us[e] expert testimony to 

attack the general reliability or general accuracy of a legislatively determined test 

procedure - urine testing - as a valid scientific means of determining blood alcohol 

levels”) (citation omitted); State v. Massie, 2nd Dist. No. 2007 CA 24, 2008-Ohio-1312, 

¶ 36 (“Massie’s Daubert challenge [to the BAC DataMaster test results] * * * is 

forestalled by the ‘legislative mandate recognized in Vega,’ and the trial court properly 

limited Massie to the issue of his own test”). 

{¶30} Alternatively, it is argued that the delegation of authority to the director of 

health to approve testing methods and devices violates the separation of powers 

doctrine and infringes upon the trial court’s regulation of the admission of expert 

testimony under Evidence Rule 702. 
 10

{¶31} “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.” Ohio Constitution, Article IV, 

Section 5(B). Thus, “the Ohio Rules of Evidence, which were promulgated by the 

Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must 

control over subsequently enacted inconsistent statutes purporting to govern evidentiary 

matters.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 

491, 715 N.E.2d 1062 (1999). “In order to demonstrate the legislature infringed upon 

the judiciary’s power to enact evidentiary rules appellant must demonstrate the 

legislation contradicts or is an attempt to supersede an existing evidentiary rule.” State 

v. Boczar, 11th Dist. No. 2004-A-0063, 2005-Ohio-6910, ¶ 38. “When a statute does 

not conflict with a Rule of Evidence, a statute can control the admissibility of evidence.” 

State v. Cross, 11th Dist. No. 2004-L-208, 2004-L-208, 2006-Ohio-1679, ¶ 21. 

{¶32} 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. Lucarelli 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.” 
 11

{¶33} The Ohio Supreme Court, in State v. Mayl, 106 Ohio St.3d 207, 2005-

Ohio-4629, 833 N.E.2d 1216, expressly characterized R.C. 4511.19(D)(1) as a “threeparagraph gate-keeping statute.” Id. at ¶ 20. Where R.C. 4511.19(D)(1) is satisfied, it 

does “no[t] matter under which portion of R.C. 4511.19(A) a person is charged, the state 

has the opportunity to offer the results of a ‘bodily substance’ test to show either 

impairment * * * or to show that the statutory concentrations of alcohol or drugs have 

been exceeded.” Id. at ¶ 19. 

{¶34} 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, ¶ 12.2

{¶35} 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 

 

2. As examples, the Third District Court of Appeals noted: R.C. 2907.02(D) (limiting the admissibility of 

evidence regarding a victim’s sexual activity in prosecutions for Rape); R.C. 4513.263(F) (limiting the 

permissible uses of evidence regarding the use of occupant restraining devices); R.C. 2925.51(A) 

(providing that laboratory reports constitute “prima-facie evidence of the content, identity, and weight” of 

controlled substances); and R.C. 2317.47 (providing for blood-grouping tests to determine identity or 

paternity). 
 12

are sufficiently reliable to be admissible by meeting a clear-and-convincing standard.” 

Id. at ¶ 23. 

{¶36} Concerns about the reliability of the results in the absence of strict 

compliance could be addressed by the defense on cross-examination. Id.

{¶37} Likewise in the present case, R.C. 3701.143 and R.C. 4511.19(D)(1) do 

not preempt the trial court’s authority to rule on the admissibility of evidence, but rather 

delegate the preliminary determination regarding the scientific reliability of testing 

devices to the director of health. That determination is not conclusive as to the ultimate 

admissibility of the test results. As noted above, the State must demonstrate that the 

bodily substance was “analyzed in accordance with methods approved by the director of 

health.” R.C. 4511.19(D)(1)(b). The defendant may always challenge the accuracy of 

his or her specific test results and the qualifications of the person administering the test 

and otherwise strive to discredit the weight to be given the specific test results. Vega, 

12 Ohio St.3d at 189, 465 N.E.2d 1303; Tanner, 15 Ohio St.3d at 6, 472 N.E.2d 689. 

{¶38} Finally, we reject Lucarelli’s argument that the municipal court cannot take 

judicial notice of the Intoxilyzer 8000’s reliability. Ohio Criminal Rule 44.1(A)(1) states 

that, “[j]udicial notice shall be taken of the rules of the supreme court of this state and of 

the decisional, constitutional, and public statutory law of this state.” Administrative rules 

“enacted pursuant to a specific grant of legislative authority” have the “force and effect 

of law.” Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio St.3d 46, 554 N.E.2d 97 (1990), 

paragraph one of the syllabus. Accordingly, the Ohio director of health’s determination 

that the Intoxilyzer 8000 is an appropriate breath testing device is properly recognized 

as part of the statutory law of this State. See State v. Canino, 11th Dist. No. 2012-P-
 13

0102, 2013-Ohio-551, ¶ 26 (the “judiciary must take notice that [intoxilyzer breath] tests, 

properly conducted, are reliable irrespective of disagreements among experts and that 

the results of such tests are admissible”) (citation omitted). 

{¶39} The State’s sole assignment of error is with merit. 

{¶40} For the foregoing reasons, the judgment of the Portage County Municipal 

Court, Ravenna Division, granting Lucarelli’s Motion to Suppress Evidence, is reversed, 

and this cause is remanded for further proceedings consistent with this opinion. Costs 

to be taxed against appellee. 

CYNTHIA WESTCOTT RICE, J., concurs, 

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

______________________ 

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

{¶41} 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. 

{¶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. 

Although some claim the contrary, nobody is correct all the time. In recognizing human 
 14

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. 

{¶43} 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.) 

{¶44} 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). 

{¶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 
 15

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). 

{¶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 (1983). 
 16

{¶49} The trial court was aware that other courts had deemed the Intoxilyzer 

8000 unreliable even though it was approved. Against this 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. 

{¶50} 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. 

{¶51} 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. 

{¶52} 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 
 17

“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 

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

those in our case. 

{¶53} 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 the defense asserts 

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. 

{¶54} 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). 
 18

{¶55} 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 

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). 

{¶56} 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 the state 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. 

{¶57} 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 
 19

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. 

{¶58} 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.