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State v. Mason

Court of Appeals of Ohio, Eleventh District

June 17, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
IRVIN E. MASON, Defendant-Appellee.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 07065.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellant).

Dennis Day Lager, Portage County Public Defender, and Leonard W. Hazelett, Assistant Public Defender, (For Defendant-Appellee).

OPINION

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, Irvin E. Mason'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 concentration of alcohol in a person's breath. For the following reasons, we reverse and remand the decision of the court below.

{¶2} On May 25, 2012, Mason 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); and OVI, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(h).

{¶3} On September 26, 2012, Mason filed a Motion to Suppress, raising various grounds for the suppression of evidence and the breath test results, including, inter alia, that there was no cause for stopping or detaining Mason, that the breath samples were not analyzed properly or taken in accordance with the law, and that the breath testing instrument operator was not properly qualified. The Motion also asserted that the test result from the Intoxilyzer 8000 was inadmissible and scientifically unreliable, pursuant to State v. Johnson, Portage County Municipal Court case 2011 TRC 04090.

{¶4} A hearing on the Motion to Suppress was held on October 3, 2012. At that hearing, defense counsel noted that while it was arguing that the Intoxilyzer 8000 results were inadmissible under Johnson, it also had additional arguments regarding the existence of probable cause to make the traffic stop and wanted to reserve argument on these issues pending the results of a potential appeal in this matter. The State noted that it would not present any evidence or experts to testify as to the reliability of the Intoxilyzer 8000, consistent with the position it had taken in prior cases. The court stated that it would exclude the breath test results, pursuant to Johnson, but that it would wait to hold a hearing as to the other suppression issues, including those related to probable cause, until after the appeal was decided, to which the State did not object.

{¶5} In an October 4, 2012 Journal Entry, the trial court granted Mason's Motion to Suppress with respect to the results of the Intoxilyzer 8000. The court noted that it had considered the arguments of counsel and the Johnson case in reaching its determination that the breath test results were inadmissible. 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 breath test results of the Intoxilyzer 8000. In the present matter, the court also held that, based on the suppression of the breath test results, the violation of R.C. 4511.19(A)(1)(h) is dismissed. The court found "that the Defense Attorney reserved his right to proceed on any other issues raised in the Motion to Suppress at a later date, there being no objection by the State."

{¶6} The State timely appeals and raises the following assignment of error:

{¶7} "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."

{¶8} 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.

{¶9} We must first address Mason's argument that the lower court's October 4, 2012 Journal Entry is not a final order. Mason's argument is based on the distinction between a motion to suppress and a motion in limine, and he argues that since the motion ruled upon "was in essence a Motion in Limine, " it is not a final appealable order. Mason argues that the judgment was "limited to an initial evidentiary ruling regarding the admissibility of the results of the Intoxilyzer 8000 under the Ohio Rules of Evidence" and does not "determine the ultimate admissibility of the evidence."

{¶10} "The purpose and effect of a motion to suppress and a motion in limine are distinct." State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). A "motion to suppress" is a "[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation" of a constitutional right. Id., citing Black's Law Dictionary (6 Ed.1990) 1014. "[T]he ruling of the court at the suppression hearing prevails at trial and is, therefore, automatically appealable by the state." Id., citing R.C. 2945.67(A); Crim.R. 12(K).

{¶11} In contrast, a "motion in limine" is a motion "which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements * * * to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial." (Citation omitted.) State v. Grubb, 28 Ohio St.3d 199, 200, 503 N.E.2d 142 (1986). In ruling on a motion in limine, "the trial court is at liberty to change its ruling on the disputed evidence in its actual context at trial. Finality does not attach when the motion is granted." (Citation omitted.) Defiance v. Kretz, 60 Ohio St.3d 1, 4, 573 N.E.2d 32 (1991).

{¶12} The Ohio Supreme Court has held that "[a]ny 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 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 breath alcohol concentration], and the state is permitted to appeal pursuant to R.C. 2945.67 and Crim. R. 12[(K)(2)]." Defiance at 4.

{¶13} As this court has recently held in very similar circumstances, a determination that "the Defendant's breath test shall not be admitted during the trial" was not a "tentative or precautionary ruling." State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, 983 N.E.2d 837, ¶ 19. This court further held that "[a]ny doubt as to the finality of this ruling is removed by the court's dismissal of the charge of operating a vehicle with a prohibited breath alcohol concentration, " which also occurred in the present matter. Id.

{¶14} For the foregoing reasons, the municipal court's October 4, 2012 Journal Entry is a final order, properly appealed by the State pursuant to R.C. 2945.67(A) and Crim.R. 12(K)(2), which allow a prosecuting attorney to appeal a decision granting a motion to suppress evidence under certain circumstances, when there is no reasonable possibility of effective prosecution in the absence of the suppressed evidence.

{¶15} 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.

{¶16} Mason rejects the State's argument for several reasons, including the contention that the use of the word "may" in the phrase "the court may admit evidence on the concentration of alcohol" in the OVI statute recognizes the trial court's discretion to admit and exclude evidence and that a threshold ...


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