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State v. Morrison

Court of Appeals of Ohio, Eleventh District

September 23, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
GILBERT H. MORRISON, Defendant-Appellee.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 8164.

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).

OPINION

CYNTHIA WESTCOTT RICE, J.

(¶1} The state of Ohio appeals the judgment of the Portage County Municipal Court, Ravenna Division, which granted appellee, Gilbert Morrison'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 June 9, 2012, at about 2:30 a.m., Morrison was stopped by police for driving without headlights. A breath test was administered using an Intoxilyzer 8000, the results of which showed that Morrison's blood-alcohol concentration was .220, nearly three times 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. He was also cited for driving without headlights, in violation of R.C. 4513.03. Morrison pled not guilty.

(¶3} The state filed a "brief regarding Intoxilyzer 8000 hearing." 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).

(¶4} Thereafter, Morrison filed a motion to suppress the results of his breath test, challenging the general reliability of the Intoxilyzer 8000. His motion challenged the admissibility of the results of his breath test, the results of his field sobriety tests, and his statements to police. In support of his motion to suppress his breath-test results, Morrison listed several specific challenges to his breath test. For example, he argued the person administering his breath test was not qualified; the machine was not operating properly; and his test was not administered correctly.

(¶5} In the trial court's judgment ruling on Morrison's motion to suppress, the court limited its review of his motion to the admissibility of his breath-test results from the Intoxilyzer 8000, and did not address any of his specific challenges to his test results. The court granted Morrison'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. The court held that, because the state did not produce evidence of the reliability of the Intoxilyzer 8000, Morrison's breath-test results from the Intoxilyzer 8000 were not admissible at trial. The court stated that the remaining charges alleging violations of R.C. 4511.19(A)(1)(a) and R.C. 4513.03 would be set for trial, implying that the per-se OVI charge under R.C. 4511.19(A)(1)(h) was dismissed.

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

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

(¶8} "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."

(¶9} 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.

(¶10} 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 to shoulder the initial burden of production to establish the general 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. Id. at ¶14. Further, this court held that once the presumption attaches, a defendant is entitled to make specific challenges in a motion to suppress to the general reliability of the Intoxilyzer 8000. Id. at ¶43. In State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, this court also held:

(¶11} 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 1 89. Miller, supra, at ¶32.

(¶12} Further, In Miller, 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 arguments * * *." Id. at ¶33.

(¶13} Further, this court has held that, because the Intoxilyzer 8000 is presumed reliable, the defendant has the burden of production to present evidence that the Intoxilyzer 8000 is not reliable. Carter at ¶39. If the defendant satisfies his initial burden, the burden of proof then shifts to the state to produce evidence establishing the machine's reliability.

(¶14} As a practical matter, after both parties present evidence in support of their respective positions, the trial court determines whether the defendant has met his initial burden of production. If the court determines that the defendant has not met his burden of production, the motion shall be denied. However, if the court finds that the defendant has satisfied his burden, the court shall then determine whether the state has satisfied its ...


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