Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2011 TRC 14638.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, (For Plaintiff-Appellant).
Joseph C. Patituce, Patituce & Associates, LLC, (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
(¶1} The state of Ohio appeals the judgment of the Portage County Municipal Court, Ravenna Division, which granted appellee Kyle R. Jones' motion to suppress the results of his Intoxilyzer 8000 test. Jones asserted a general challenge to the reliability of the Intoxilyzer 8000. He also challenged the specific testing procedure used for his test. For the reasons that follow, we reverse and remand.
(¶2} On November 14, 2011, Jones was cited for speeding, in violation of R.C. 4511.21(C). He was also cited for operating his vehicle under the influence of alcohol ("OVI") and driving with a prohibited blood-alcohol concentration, in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d), respectively. Jones pled not guilty.
(¶3} Subsequently, Jones filed a motion to suppress, challenging his breath-test results. He argued the specific Intoxilyzer 8000 device used to test his breath is not reliable due to prior errors it has allegedly made. He also argued his test was not administered in compliance with Ohio Adm.Code 3701-53-04(B), which requires a dry gas control be automatically performed before and after every subject test, and that the Ohio Department of Health altered records of his test results.
(¶4} The state filed a brief in opposition, arguing that Jones' motion to suppress constituted a general challenge to the reliability of the Intoxilyzer 8000. The state argued 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} At the outset of the suppression hearing, defense counsel stated Jones was not making a general attack on the Intoxilyzer 8000. Instead, he argued that the specific machine used in this case is not reliable and that the state was required to show this machine is in proper working order.
(¶6} In the early morning hours of November 12, 2011, State Trooper Thomas Hermann clocked Jones driving 58 mph in a 45 mph zone. The trooper stopped Jones. Upon approaching Jones' vehicle, the trooper detected an odor of an alcoholic beverage. The trooper noticed Jones' eyes were glassy and bloodshot and his speech was slurred. Based on these observations, the trooper asked Jones to exit his vehicle for field sobriety tests. The trooper noticed a strong odor of alcohol on Jones' breath. Jones failed each of the field sobriety tests, and the trooper arrested him for OVI. Jones submitted to an Intoxilyzer 8000 breath test, which resulted in a reading of .129.
(¶7} Mary Martin, the Ohio Department of Health Program Administrator for Alcohol and Drug Testing, testified she is responsible for reviewing and revising the Department's rules and regulations. She is familiar with all Department-approved breath-testing instruments. She has been trained regarding the construction and operation of the Intoxilyzer 8000 by its manufacturer. She said that as part of her job, she trains judges, prosecutors, and defense attorneys regarding the Intoxilyzer 8000.
(¶8} Ms. Martin said that upon completion of a breath test by the Intoxilyzer 8000, the instrument prints out a report of the defendant's test called a "Subject Test Report, " which includes the offender's personal information, his arrest information, and his test information.
(¶9} Ms. Martin said that a "subject test" is not defined in the Administrative Code or the Revised Code. However, she said a "subject test" is the entire breath test as reported in the "Subject Test Report." She said that is what was meant by the phrase "subject test" when Ohio Adm.Code 3701-53-04 was adopted. She said a subject test requires two breath samples to be a valid subject test. She said the Department uses the lower of the two readings as the chargeable per-se level.
(¶10} Ms. Martin said that, pursuant to Ohio Adm.Code 3701-53-04(B), one dry gas control is performed at the beginning of the subject test and one dry gas control is performed at the end of the subject test. She said the study guide printed by the Department for police officers trained on the Intoxilyzer 8000 references two dry gas controls, one before the subject test and one after it.
(¶11} Ms. Martin identified Jones' Subject Test Report printed by the Intoxilyzer 8000. The report shows that the instrument took two breath samples from Jones. Before Jones gave his first breath sample, the Intoxilyzer 8000 conducted a dry gas control test as part of its calibration process. The machine ran another dry gas control test after Jones gave his second breath sample.
(¶12} Ms. Martin said the original Subject Test Report form, which was used for Jones' test, referred to the two breath samples that are blown into the Intoxilyzer 8000 as "Subject Test 1" and "Subject Test 2." She said the original form and Ohio Adm.Code 3701-53-04(B), which also references the phrase "subject test, " were drafted by her predecessor at the Department. She said that using the phrase "Subject Test 1" and "Subject Test 2" on the original form to refer to the two breath samples caused confusion because the phrase "subject test" is also used in the title of the test report. As a result, in November 2011, she revised the Subject Test Report form to refer to the two breath samples as "Subject Sample 1" and "Subject Sample 2." This change was made with the approval of the Director of Health. Ms. Martin said that when she changed the Subject Test Report form, the change had no effect on prior tests. She said that Jones was tested on the Intoxilyzer 8000 before this change to the form, and that the Subject Test Report printed by the Intoxilyzer 8000 in connection with Jones' test remains the same.
(¶13} Ms. Martin said that all Intoxilyzer 8000 instruments in Ohio are connected to the Department's database, which is referred to as COBRA. She said all data on the Subject Test Report forms is uploaded to the database in a read-only format so that the data cannot be changed. The completed form itself is not uploaded to the Department's database; only the data contained in the form is uploaded. The server retrieves the data, which is included on a spreadsheet in rows and blocks of information.
(¶14} In contrast to the database, the Department has also created a website, which contains all test results uploaded to the Department's database. While the data uploaded by the Intoxilyzer 8000 instruments from the Subject Test Reports cannot be changed, the forms used by the Department's website to report the data can be and occasionally are changed to, e.g., include or exclude certain data in the database, to change the order in which data is included, to increase the size of certain fields to allow additional data to be included to correctly reflect the data in the database, or to change the title of a field.
(¶15} Ms. Martin said that when the Department changed the language on the Subject Test Report form in November 2011 from "Subject Test 1" and "Subject Test 2" to "Subject Sample 1" and "Subject Sample 2, " this change was reflected on all Subject Test Report forms printed by the Intoxilyzer 8000 after that date. This change was also reflected on the Department's website. This change did not, however, alter the actual test results or any data contained in the Subject Test Reports.
(¶16} Ms. Martin said the website is not meant to provide evidence. The breath instrument itself prints a Subject Test Report of a defendant's breath test, which is used as evidence in court. In contrast, the purpose of the website is to provide information that can be easily accessed by prosecutors and defense counsel so they do not have to travel to the police department to obtain breath-test results.
(¶17} Ms. Martin said that the data in all Subject Test Reports is uploaded to the Department's database and that the Department retains the data contained in the database indefinitely.
(¶18} Finally, Patrick Sullivan, Breath-Testing Inspector for the Department, testified he instructs on the proper operation of the Intoxilyzer 8000. He said he certified the subject Intoxilyzer 8000 used to test Jones' breath as working properly as of the date of Jones' test. Following Mr. Sullivan's testimony, Jones' attorney withdrew his challenge to the reliability of this specific instrument.
(¶19} Following the presentation of the evidence, the court entered judgment granting Jones' motion to suppress the results of his breath test. The court found that Jones made a general attack on the reliability of the Intoxilyzer 8000, which placed the burden on the state to prove the instrument is reliable. The court concluded that, because the state did not produce such ...