Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 3970.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellant).
Dennis Day Lager, Portage County Public Defender, and Carolyn K. Mulligan, Assistant Public Defender, (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, Raymond Alan Warner's, motion to suppress the results of his Intoxilyzer 8000 test. This court recently held in State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, 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, we reverse the trial court's judgment, and remand this matter for further proceedings consistent with this opinion.
(¶2} On March 29, 2012, a citation was filed in the trial court, charging Warner with 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 R.C. 4511.19(A)(1)(d), respectively; driving with a suspended driver's license, in violation of R.C. 4510.21(A); and failure to yield at a posted red light, in violation of R.C. 4511.13(C). Warner pled not guilty.
(¶3} Subsequently, Warner filed a motion to suppress to exclude the results of his breath test, challenging the general reliability of the Intoxilyzer 8000. He also argued the machine was not working properly, the operator was not qualified, and the testing procedure was flawed.
(¶4} The state filed a brief in opposition, arguing it was not required to present evidence that the Intoxilyzer 8000 is reliable prior to the introduction of Warner's breath-test results because the legislature had delegated this determination to the Director of Health and the Supreme Court of Ohio upheld this delegation in State v. Vega, 12 Ohio St.3d 185 (1984).
(¶5} The parties submitted the issue to the court on briefs and no evidence was presented by either party.
(¶6} The trial court addressed only Warner's challenge to the general reliability of the Intoxilyzer 8000; the court did not address his specific challenges. The court granted Warner's 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 ¶20. This court noted that the Director of Health, at Ohio Adm.Code 3701-53-02(A)(3), approved the Intoxilyzer 8000 as an evidential breath-testing instrument. Carter at ¶21.
(¶12} Further following Vega, this court in Carter stated that R.C. 4511.19 represented a legislative determination that breath-testing devices adopted by the Director of Health are generally reliable. Carter at ¶24, citing Vega at 188. This court stated that "'in light of R.C. 4511.19, an accused may not make a general attack upon the reliability * * * of a breath testing instrument.'" Carter at ¶25, quoting Vega at 190.
(¶13} This court held that since the General Assembly has legislatively determined that the Intoxilyzer 8000 is reliable, it must be presumed this device is reliable. Carter at ¶37. In fact, this court in State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, held that the Intoxilyzer 8000 "is presumed to be generally reliable." Id. at ¶32. Therefore, this court held that the state did not have the burden to produce evidence of the machine's reliability in order for the defendant's breath-test results to be admissible at trial. Carter at ¶39.
(¶14} This court in Carter held that, in light of Vega and the presumption that the Intoxilyzer 8000 is reliable, a defendant is entitled to make specific challenges to the general reliability of the Intoxilyzer 8000. Carter at ¶43, citing Vega. In support of this holding, this court in Carter held that Vega's prohibition against a general attack on the reliability of the breath instrument "allows for a specific challenge to the reliability of the Intoxilyzer 8000." (Emphasis added.) Carter at ¶35.
(¶15} In Mller, supra, this court also held that a defendant can make specific challenges to the reliability of the Intoxilyzer 8000, as follows:
(¶16} 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 * * * 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. (Emphasis added.) Miller at ¶32.
(¶17} Further, this court in Miller held that a defendant seeking to suppress the results of his breath test can make "specific challenges to the Intoxilyzer's reliability, " and that "[a] defendant may * * * challenge the reliability of the Intoxilyzer 8000 with specific arguments * * *." Id. at ¶33.
(¶18} In addition, this court in Carter held that, because the instrument is presumed reliable, the defendant has the burden of production to present evidence that the Intoxilyzer 8000 is not reliable. If the defendant satisfies his initial burden, the burden of proof then shifts to the ...