[Cite as State v. Hobson , 2013-Ohio-740.]

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-0110 - vs - : JOHN L. HOBSON, : Defendant-Appellee. :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 03700. 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). Joseph C. Patituce, Megan M. Patituce, and Catherine Meehan, 26777 Lorain Road, Suite 708, North Olmstead, OH 44070 (For Defendant-Appellee).

DIANE V. GRENDELL, J. {¶1} Plaintiff-appellant, the State of Ohio, appeals from the judgment of the Portage County Municipal Court, Ravenna Division, granting defendant-appellee, John L. Hobson’s, Motion to Suppress. The issue to be decided in this case is whether a trial court, in the performance of its role as gatekeeper, may require the State to demonstrate the general scientific reliability of a breath testing instrument where the Ohio Director of Health has approved such instrument for determining the concentration2 of alcohol in a person’s breath. For the following reasons, we reverse and remand the

decision of the court below. {¶2} On March 24, 2012, Hobson was issued a traffic ticket, charging him with Operating a Vehicle While Under the Influence (OVI), a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a); OVI, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(d); and failure to dim his headlights, a minor misdemeanor, in violation of R.C. 4513.15. {¶3} On July 13, 2012, Hobson filed a Motion to Suppress, challenging, inter alia, the results of a breath test taken by Hobson at the time of the citation. He asserted that the breath test was not conducted in accordance with Ohio Adm.Code 3701-53-04, which requires that a dry gas control test is taken before and after breath tests, and that the breath sample was not analyzed in accordance with the operational checklist for the instrument. He also argued that the State was required to demonstrate that the specific Intoxilyzer 8000 machine used in this matter was scientifically reliable, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He noted that the specific Intoxilyzer machine used to perform his breath test did not operate in a manner consistent with the Ohio Administrative Code. {¶4} The State filed a response to the Motion to Suppress and a “Brief Regarding Intoxilyzer 8000 Hearing” on August 29, 2012. In that Brief, the State argued that it need not present evidence to establish the general reliability of the Intoxilyzer 8000, citing State v. Vega , 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984).3 {¶5} A hearing on the Motion to Suppress was set for August 29, 2012. Pursuant to the affidavit of the court reporter, the proceedings in that matter were not recorded and no transcript could be prepared. {¶6} In an August 30, 2012 Journal Entry, the trial court granted Hobson’s Motion to Suppress with respect to the results of the Intoxilyzer 8000. The court noted

that it “limits its review of Defendant’s Moti on to Suppress solely to the admissibility of a BAC test from the Intoxilyzer 8000.” It found that the issue in the present matter was

“identical” to the one in State v. Johnson . In Johnson , the trial court held that the State was required to present evidence at a hearing for the trial court to determine the general scientific reliability and admissibility of the breat h test results of the Intoxilyzer 8000. In the present matter, the court held that “the rationale and findings in Johnson are likewise applicable to this case.” It held that the “breath test results from the Intoxilyzer 8000 are not admissible at the trial of Defendant” and that “[t]he remaining charges alleging a violation of ORC 4511.19(A)(1)(a) and 4513.15 shall be set for trial on the

Court’s docket.” {¶7} On September 6, 2012, the State filed a Motion to Stay the Execution of Judgment, which was granted by the court on September 7, 2012. {¶8} The State timely appeals and raises the following assignment of error: {¶9} “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.” {¶10} 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 , 1324 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. {¶11} In its sole assignment of error, the State argues that, pursuant to the provisions of R.C. 3701.143 and Ohio Adm. Code 3701-53-02(A), a trial court is required to accept the Intoxilyzer 8000 as an appropriate device for chemically analyzing a person’s breath to determine the amount of alcohol in the breath. It further argues that pursuant to State v. Vega , 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), a defendant may not attack the general reliability of a breath testing instrument and that the State is not required to present evidence to support a determination that the test is generally reliable. {¶12} This court has recently addressed the exact issue raised by the State regarding the general reliability of the Intoxilyzer 8000 and determined that, pursuant to Vega , a defendant may not make “a general attack upon the reliability and validity of the breath testing instrument,” although breath test results are subject to challenge on a variety of grounds, including specific attacks on the reliability of the test and attacks on the performance of the test in a specific defendant’s case. State v. Miller , 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, ¶ 30-32; State v. Carter , 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, ¶ 25 and 35; State v. Rouse , 11th Dist. No. 2012-P-0030, 2012-Ohio5584, ¶ 24 and 32. {¶13} As was discussed in the foregoing cases, the lead Ohio Supreme Court

case on this issue is Vega , in which the court addressed the issue of whether the general reliability of intoxilyze rs could be challenged “in view of the fact that the General5 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.

In Vega , the Ohio Supreme Court made clear that “an accused may not make a general attack upon the reliability and validity of t he breath testing instrument,” since the General Assembly “ha[s] legislatively re solved the questions of the reliability and relevancy of intoxilyzer tests.” Id. at 188 and 190. {¶14} While no general attack on reliability may be made, 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). The Ohio Supreme Court has affirmed that “[t]here is no question that the accused may * * * atta ck 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.” Vega , 12 Ohio St.3d at 189, 465 N.E.2d 1303. 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); State v. French , 72 Ohio St.3d 446, 451-452, 650 N.E.2d 887 (1995). {¶15} 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, as opposed to general assertions that the State failed to prove its reliability, which is prohibited under Vega

. See Vega at 189.6 {¶16} Hobson argues, however, that he did not raise general challenges to the reliability, and thus is not disputing whether the State was required to present evidence as to the general reliability of the Intoxily zer 8000. He instead asserts that he raised challenges related to the specific machine used to take his breath sample and that these were proper issues to raise under Vega . In the present case, Hobson’s Motion to Suppress challenged the breath test results of the Intoxilyzer 8000 on several grounds, including that his breath test was not conducted in accordance with Ohio Adm. Code 3701-53-04, which requires that a dry gas control test is taken before and after breath tests, and that the breath sample was not analyzed in accordance with the operational checklist for the testing instrument. {¶17} Under the statute and cases discussed above, these were valid challenges to the admissibility of breath te st results and properly raised in a motion to suppress. The municipal court, however, granted Hobson’s Motion on the grounds that the State failed to produce evidence of the Intoxilyzer 8000’s general scientific reliability. In his appellate brief, Hobson contends the State’s failure to produce evidence in response to any of his specific challenges to the admissibility of the breath test results is grounds for affirming the municipal court’s decision. Given the circumstances of the present case, we disagree. Following the filing of the Motion to Suppress, the State submitted a brief opposing the Motion on the grounds that the court is “obligated to accept the general reliability of the Intoxily zer 8000.” The court’s ruling appears to have been limited to this issue. The municipal court specifically cited Johnson as its reason for granting the Motion to Suppress, in which the court had previously concluded that the State was required to present evidence at a hearing for the trial court to determine7 the general scientific reliability of the Intoxi lyzer 8000. The court did not state that it granted the Motion based on the State’s failure to address specific arguments related to the breath test. Accordingly, on remand, it will be necessary for the court to hold another hearing to address the other issues raised in Hobson’s Motion to Suppress, at which time the State will have the opportunity to respond to his specific arguments. {¶18} The sole assignment of error is with merit. {¶19} For the foregoing reasons, the judgment of the Portage County Municipal Court, Ravenna Division, granting Hobson’s Motion to Suppress, is reversed, and this cause is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee.

TIMOTHY P. CANNON, P.J., concurs, THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

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THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion. {¶20} R.C. 4511.19(D)(1)(b) does not mandat e 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. {¶21} 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 from8 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. {¶22} 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 th e 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.) {¶23} 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).9 {¶24} 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 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 ce rtain threshold standards of reliability and usefulness). {¶25} Moreover, the determination of evident ial reliability necessa rily implicates the defendant’s substantive due process rights. {¶26} “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).10 {¶27} 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). {¶28} 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. {¶29} 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. {¶30} 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 a11 reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general .” (Emphasis added.) Id . at 186. {¶31} 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 ad missibility 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. {¶32} Additionally, the rule in Vega does not contemplate a situation where, as here, an approved device’s gener al reliability has been assess ed 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. {¶33} Breath tests are “‘* * * generally recognized as being reasonably reliable

on the issue of intoxication when conducted with proper equipment and by competent12 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). {¶34} 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). {¶35} 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 ad mit 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’s13 order was unambiguous and an exercise of the sound discretion as the gatekeeper of breath test result admissibility. {¶36} 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 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. {¶37} 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.