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State v. Bergman

Court of Appeals of Ohio, Eleventh District

July 15, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
DENISE L. BERGMAN, Defendant-Appellee.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 08654. Judgment.

Victor V. Vigluicci, Portage County Prosecutor and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

Dennis Day Lager, Portage County Public Defender, and Mark A. Carfolo, Assistant Public Defender, 209 S. Chestnut Street, Suite 400, Ravenna, OH 44266 (For Defendant-Appellee).

OPINION

COLLEEN MARY OTOOLE, J.

{¶1} The state of Ohio appeals from the September 26, 2012 judgment entry of the Portage County Municipal Court, Ravenna Division, granting Denise Bergman's motion to suppress in a drunken driving case. The motion was directed against the admissibility of breath test results from the Intoxilyzer 8000. We affirm.

{¶2} In the early hours of June 17, 2012, Ms. Bergman was stopped on State Route 59 for driving without a right headlight. Eventually, the officer issued Ms. Bergman a ticket for operating her vehicle under the influence of alcohol ("OVI"), a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a) and (d), and the headlight violation, R.C. 4513.14. A breath test done with the Intoxilyzer 8000 indicated she had a blood alcohol concentration of .097. Ms. Bergman pleaded not guilty to both charges.

{¶3} Ms. Bergman moved to suppress, raising the issue of whether the Intoxilyzer 8000 provides scientifically reliable results. Hearing was held August 25, 2012. The state declined to present any evidence that the Intoxilyzer 8000 is reliable; and, pursuant to its prior decision in State v. Johnson, Portage County M.C. No. R 2011 TRC 4090 (Jan. 6, 2012), rev'd, 11th Dist. No. 2012-P-0008, 2013-Ohio-440, [1] the trial court granted the motion to suppress. The state certified that, without the results from the Intoxilyzer 8000 test, its case was too weak to proceed, Crim.R. 12(K), and timely noticed this appeal.

{¶4}The state assigns a single error:

{¶5} "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."

{¶6} In support of this assignment of error, the state presents one issue for review:

{¶7} "Did the trial court err in determining that the State was required to present evidence to establish the scientific reliability of the Intoxilyzer 8000 machine as a threshold matter for the admissibility of test results from that machine?"

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

{¶9} The state relies on State v. Vega, 12 Ohio St.3d 185 (1984). In that case, 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 a reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general." Id. at 186. The Vega court premised its decision on several considerations.

{¶10} First, the court cited to its prior holding in Westerville v. Cunningham, 15 Ohio St.2d 121, 123 (1968), regarding use of breath analysis machines in OVI cases, for the proposition that: "'such tests are today generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators.'" Vega at 186.

{¶11} Second, the court noted that the General Assembly confided discretion to determine proper methods of analyzing breath alcohol to the Director of Health, and that the director had designated the machine in question ...


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