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State of Ohio v. Cayce R. Rouse

December 3, 2012

STATE OF OHIO, PLAINTIFF-APPELLANT,
v.
CAYCE R. ROUSE, DEFENDANT-APPELLEE.



Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2011 TRC 7113.

The opinion of the court was delivered by: Cynthia Westcott Rice, J.

Cite as State v. Rouse,

OPINION

Judgment: Reversed and remanded.

{¶1} Appellant, the state of Ohio, appeals from 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, Cayce R. Rouse. At issue is whether the state is required to first produce evidence of a breath test machine's general reliability as a precondition for admitting breath test results. For the reasons discussed below, we reverse the decision of the trial court and remand the matter for further proceedings.

{¶2} On June 5, 2011, at approximately 2:30 a.m., appellee was stopped and cited for operating a vehicle while intoxicated ("OVI"), in violation of R.C 4511.19(A)(1)(a) and (A)(1)(d), each misdemeanors of the first degree. Appellee was also cited for lanes of travel, in violation of R.C. 4511.25, a minor misdemeanor.

Appellee filed a boilerplate motion to suppress evidence. Later, she filed a motion in limine seeking the exclusion of the results of the breath test based upon the general inaccuracy and unreliability of the Intoxilyzer 8000. In support, appellee relied on a recent decision of the Portage County Municipal Court, State v. Johnson, Portage M.C. No. R2011TRC4090.

{¶3} In Johnson, the court required the state to produce evidence of the general reliability of the Intoxilyzer 8000. When the state declined to go forward, pursuant to the Ohio Supreme Court's decision in State v. Vega, 12 Ohio St.3d 185 (1984), the court granted the defendant's motion to suppress. Pursuant to Johnson, appellee requested that the court exclude her breath alcohol results if the state declined to produce expert testimony regarding the general reliability of the Intoxilyzer 8000.

{¶4} On March 26, 2012, the matter came on for hearing. At the hearing, the state, relying on Vega, maintained appellee could not challenge the general scientific reliability of the Intoxilyzer 8000. The state asserted Vega upheld the statutory presumption of reliability accorded the breath tests machines, including the Intoxilyzer 8000. In light of this precedent, the state refused to produce any witnesses regarding the general reliability of the device.

{¶5} The court, following its ruling in Johnson, ruled the state's failure to produce any evidence regarding the reliability of the Intoxilyzer 8000 rendered the breath results inadmissible. The court consequently granted appellee's motion. This appeal followed.

{¶6} The state asserts two assignments of error for our review; its first assigned error provides:

{¶7} "The relief sought and obtained from Rouse's March 5, 2012 Motion establishes the trial court's March 26, 2012 decision was a ruling on a motion to suppress and therefore automatically appealable by the State."

{¶8} Under this assignment of error, the state contends the underlying order granting appellee's motion to suppress is an appealable order pursuant to Crim.R. 12(K) and R.C. 2945.67(A).

{¶9} We acknowledge that the issue of the reliability of the Intoxilyzer 8000 was raised in a motion in limine filed subsequent to appellee's motion to suppress. A ruling pursuant to a motion in limine is generally considered a tentative and interlocutory ruling to which finality does not attach. See e.g. State v. Grubb, 28 Ohio St.3d 199, 201-202. Nevertheless, "[t]he determination of whether a motion is a 'motion to suppress' or a 'motion in limine' does not depend on what it is labeled, it depends on the type of relief it seeks to obtain." State v. Davidson, 17 Ohio St.3d 132, 135 (1985).

{¶10} In this case, the motion seeking the exclusion of the results of the Intoxilyzer 8000 requested an order deeming the device unreliable and inadmissible. It therefore sought a judgment that would permanently preclude the state from using the Intoxilyzer 8000's test results at trial. Nothing in the motion indicates the ruling appellee sought was tentative or merely precautionary.

{¶11} Moreover, at the hearing, the court clearly construed the argument regarding the device's reliability as an adjunct argument to appellee's motion to suppress. In its judgment, the court expressly stated that the matter was before it on appellee's motion to suppress which, pursuant to Johnson, supra, the court sustained. Appellee did not object to the court's ruling and does not dispute the finality of the order on appeal. Because appellee does not claim the judgment was merely a ruling on a motion in limine and the trial court did not actually treat appellee's reliability argument as a request for a ruling in limine, there is no error on which this court is asked to rule. The state's initial assignment of error rests upon a presumed controversy; as far as this court can discern, however, there are no existing facts to support a claim of error. To the extent this is so, the state's initial assignment of error is moot.

{¶12} For its second assignment of error, the state alleges:

{¶13} "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."

{¶14} Under this assignment of error, the state asserts it is not required to produce expert witnesses to convince the municipal court of the general scientific reliability of the Intoxilyzer 8000 as a precondition for admissibility. The state observes the General Assembly delegated this issue to the Ohio Director of Health under to R.C. 3702.143 and R.C. 4511.19(D). Pursuant to this legislative scheme, once the Director approves a device, it is presumptively admissible and a prosecutor is not required to produce evidence of the machine's general reliability. The state underscores this delegation was upheld by the Supreme Court of Ohio in Vega, supra. The state consequently maintains the court below erred in requiring it to produce evidence of the Intoxilyzer 8000's general reliability as a precursor to admitting the machine's results. According to the state, the trial court's decision stands in violation of both statutory and governing case law and therefore the judgment granting appellee's motion must be reversed and the matter remanded.

{ΒΆ15} In response, appellee asserts the decision to admit or exclude evidence is a matter solely committed to the judiciary through the rules of evidence and the Ohio Constitution. Because the judiciary has exclusive province to adjudicate the value and admissibility of evidence, appellee asserts the legislature's delegation to the Director of Health to determine the presumptive reliability of breath testing machines violates the doctrine of separation of powers. Appellee additionally contends that Vega is inapplicable to this case because current evidentiary rules require courts to assess the reliability of scientific evidence as a prerequisite to admissibility. See Evid.R. 702; Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). And, ...


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