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State v. Albaugh

Court of Appeals of Ohio, Eleventh District

June 28, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
JAMES R. ALBAUGH, Defendant-Appellee.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 5003.

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

Dan J. Weisenburger, (For Defendant-Appellee).

OPINION

CYNTHIA WESTCOTT RICE, J.

{¶1} The state of Ohio appeals the judgment of the Portage County Municipal Court, Ravenna Division, which granted appellee, James R. Albaugh's, motion in limine and his motion to suppress the results of his Intoxilyzer 8000 test. This court recently held in State v. Carter, 2012-P-0027, 2012-Ohio-5583 and State v. Rouse, 2012-P-0030, 2012-Ohio-5584, that the Intoxilyzer 8000 is presumed reliable, and that the defendant is entitled, but has the burden of production, to specifically challenge the general reliability of the Intoxilyzer 8000. Based on this court's precedent in Carter and Rouse, we reverse the trial court's judgment, and remand this matter for further proceedings consistent with this opinion.

{¶2} On April 14, 2012, an Ohio State Patrol Trooper detained Albaugh at a sobriety checkpoint. The trooper detected an odor of alcohol; Albaugh's speech was slurred; and he had glassy eyes. A breath test was administered using an Intoxilyzer 8000, the results of which showed that Albaugh's blood-alcohol concentration was .184, more than twice the legal limit. He was cited for operating his vehicle under the influence of alcohol and driving with a prohibited blood-alcohol concentration, in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h), respectively. Albaugh pled not guilty.

{¶3} Subsequently, Albaugh filed a motion in limine to exclude the results of his breath test, challenging the general reliability of the Intoxilyzer 8000. He also filed a motion to suppress, challenging the admissibility of seven categories of evidence, including the results of his field sobriety tests, his statements to police, the officer's observations, and the results of his breath test. In support of his motion to suppress his breath-test results, Albaugh listed 15 specific challenges to his breath test. For example, he argued the person administering his breath test was not qualified and did not follow the mandatory 20-minute observation period prior to his breath test; his breath samples were not analyzed according to the instrument's display; the results were not retained in a manner prescribed by the Director of Health; and the instrument did not automatically perform a dry gas control test between the two subject tests.

{¶4} The state argued that it was not required to present evidence that the Intoxilyzer 8000 is reliable because the legislature had delegated this determination to the Director of Health and the Supreme Court of Ohio upheld this delegation of authority in State v. Vega, 12 Ohio St.3d 185 (1984).

{¶5} The parties agreed to submit the issue to the court on briefs and no evidence was presented by either party.

{¶6} The trial court limited its review of Albaugh's motion to suppress to the admissibility of his breath-test results from the Intoxilyzer 8000, and did not address any of Albaugh's specific challenges to his own test results. The court granted Albaugh's motion in limine and his motion to suppress, holding that the state was required to produce evidence that the Intoxilyzer 8000 is reliable in order for his test results to be admissible at trial.

{¶7} The trial court granted the state's motion to stay execution of the judgment.

{¶8} The state appeals the trial court's judgment, asserting the following for its sole assignment of error:

{¶9} "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."

{¶10} We review a trial court's legal determinations at a suppression hearing de novo. State v. Dijsheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19.

{¶11} In Carter, this court followed Vega in acknowledging that the General Assembly in R.C. 3701.143 authorized the Director of Health to determine techniques for chemically analyzing the amount of alcohol contained in a person's breath. Carter at ¶16-17. Further, this court recognized that R.C. 4511.19(D)(1)(b) requires breath samples be analyzed for alcohol content in accord with methods approved by the Director of Health pursuant to R.C. 3701.143. Carter at ΒΆ20. This court noted that the Director of Health, at ...


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