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State v. Raynish

Court of Appeals of Ohio, Eleventh District

June 24, 2013

STATE OF OHIO, Plaintiff-Appellant,
STEPHEN M. RAYNISH, Defendant-Appellee.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 3299.

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

Dan J. Weisenburger, For Defendant-Appellee.



{¶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 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 15, 2012, the Ohio State Highway Patrol issued defendant-appellee, Stephen M. Raynish, a traffic ticket, charging him 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 violating the Display of License Plates and Validation Stickers statute, a minor misdemeanor in violation of R.C. 4503.21.

{¶3} On March 19, 2012, Raynish entered a plea of not guilty.

{¶4} On August 27, 2012, Raynish filed a Motion in Limine, seeking "an Order restricting the Prosecution from introducing or offering * * * [the] results of testing conducted upon the Defendant using an Intoxilyzer 8000, which has not been accepted by this Court as [an] accurate and reliable testing instrument."

{¶5} On the same date, Raynish filed a Motion to Suppress, seeking "to suppress [other] evidence obtained from the warrantless seizure of the Defendant."

{¶6} On September 5, 2012, the State filed a Brief Regarding Intoxilyzer 8000 Hearing, asserting "there exists no requirement that the reliability of the Intoxilyzer 8000 be established as a prerequisite to a Court's acceptance of breath test results from this machine."

{¶7} On September 17, 2012, the municipal court issued a Journal Entry, "limit[ing] its review of Defendant's Motion to Suppress Motion in Limine [sic] solely to the admissibility of a BAC test from the Intoxilyzer 8000, " and ruling that "the breath test results from the Intoxilyzer 8000 are not admissible at the trial of Defendant." In so ruling, the court relied upon State v. Johnson, Portage M.C. R 11 TRC 4090 (Jan. 6, 2012).

{¶8} On September 18, 2012, the State filed its Notice of Appeal.

{¶9} On September 19, 2012, the municipal court, upon the State's Motion, stayed execution of its judgment pending a decision on appeal.

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

{¶11} "[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."

{¶12} Where the lower court's judgment is challenged on a purported misconstruction of the law, the appropriate standard of review is de novo. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.

{¶13} The Johnson case, relied upon by the municipal court, has been reversed. State v. Johnson, 11th Dist. No. 2012-P-0008, 2013-Ohio-440, ¶ 32 ("the legislature has allowed the director of the department of health to determine that the Intoxilyzer 8000 is generally reliable"). This court has held, in many other decisions, that the State is not required to introduce evidence of the Intoxilyzer 8000's scientific reliability for the breath test results to be admissible. State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, ¶ 26, quoting State v. Vega, 12 Ohio St.3d 185, 190, 465 N.E.2d 1303 (1984) ("an accused may not make a general attack upon the reliability and validity of the breath testing instrument"). Raynish raises no arguments that have not already been considered by this court in its previous decisions, such that a different holding would be warranted.

{¶14} The dissent relies on a general statement by the court in Vega to contravene the specific holding of the Ohio Supreme Court in Vega. That analysis is inapposite of the holding in Vega that "most of the original questions as to the general reliability of the tests and the relation between blood-alcohol levels and driver impairment have been answered, expressly or impliedly, by the legislatures." (Citation omitted.) (Emphasis sic.) Vega at 188.

{¶15} The concurring judge reads Vega in such a way that the defendant bears the burden of production at the suppression hearing to present evidence of the Intoxilyzer 8000's unreliability. This position is contrary to the established procedures for addressing such challenges. In a typical motion to suppress hearing, the movant bears the burden of "stat[ing] with particularity the grounds upon which it is made." Crim.R. 47. This burden is distinct from the burden to produce evidence, which the State bears when the reliability of a testing device is challenged. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ΒΆ 24 ("[a]fter a defendant challenges the validity of test results in a pretrial ...

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