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State v. Walsky

Court of Appeals of Ohio, Eleventh District

September 23, 2013

STATE OF OHIO, Plaintiff-Appellant/ Cross-Appellee,
v.
SAMANTHA J. WALSKY, Defendant-Appellee/ Cross-Appellant.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC 02014.

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

Jamison A. Offineer, Student Legal Services, Inc., Kent State University, (For Defendant-Appellee/Cross-Appellant).

OPINION

CYNTHIA WESTCOTT RICE, J.

(¶1} The state of Ohio appeals the judgment of the Portage County Municipal Court, Ravenna Division, granting a motion to suppress/motion in limine seeking to exclude the results of an Intoxilyzer 8000 test filed by appellee/cross-appellant, Samantha J. Walsky. Appellee/cross-appellant has filed a cross-appeal asserting the trial court erred in concluding the officer administering the breath test was appropriately certified to conduct the subject breath test. For the reasons that follow, the trial court's judgment is affirmed in part, reversed in part, and remanded.

(¶2} On February 10, 2012, appellee/cross-appellant was cited for, inter alia, operating a vehicle under the influence ("OVI"), in violation of R.C. 4511.19(B)(3). Appellee/cross-appellant filed a motion to suppress/motion in limine. The state filed a memorandum in opposition. At a hearing on the dual motion, two issues were addressed. The first issue challenged the reliability and admissibility of the Intoxilyzer 8000 and the second issue challenged the arresting officer's qualification to administer the test.

(¶3} After considering the arguments, the trial court granted Walsky's motion to suppress/motion in limine on the issue of whether the state was required to produce evidence that the Intoxilyzer 8000 is reliable in order for her test results to be admissible at trial. Alternatively, the trial court ruled that, pursuant to the relevant statutes and administrative code sections, the officer's access card was sufficient, as a matter of law, to authorize an officer to administer a breath test using the Intoxilyzer 8000. The trial court granted the state's motion to stay execution of the judgment.

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

(¶5} "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."

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

(¶7} This court has recently ruled on this exact issue in Carter, supra. In Carter, this court reversed the trial court's decision requiring the state shoulder the initial burden of production for establishing the reliability of the Intoxilyzer 8000. This court held that once the state has demonstrated a statutorily-approved breath-testing device was used, a presumption of reliability attaches. Carter at ¶14. Once the presumption attaches, a defendant is entitled to make specific challenges to the general reliability of the Intoxilyzer 8000 in a motion to suppress. Carter at ¶43.

(¶8} In State v. Miller, 11th Dist. Portage No. 2012-P-0032, 2012-Ohio-5585, this court held:

(¶9} In addition to attacks on the specific performance of a particular breath test in an individual defendant's case, a defendant may also make an attack on the reliability of the Intoxilyzer 8000 based on specific reasons. While, as discussed above, the machine is presumed to be generally reliable, a defendant may raise specific issues related to its reliability in a motion to suppress, as opposed to general assertions that the State failed to prove its reliability, which is prohibited under Vega. See Vega at 189. Miller at ¶37.

(¶10} Further, In Miller, supra, this court held a defendant can make "specific challenges to the Intoxilyzer's reliability, " and "[a] defendant may * * * challenge the reliability of the Intoxilyzer 8000 with specific ...


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