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State v. Bevilaqua

Court of Appeals of Ohio, Eleventh District

September 23, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
FRED R. BEVILAQUA, Defendant-Appellee.

Criminal Appeals from the Portage County Municipal Court, Ravenna Division, Case Nos. R2012 TRC 06907 and R2012 CRB 01376.

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

Robert Roe Fox, (For Defendant-Appellee).

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 seeking to exclude the results of an Intoxilyzer 8000 test filed by appellee, Fred R. Bevilaqua. This court recently held in State v. Carter, 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 May 24, 2012, appellee was arrested for operating a vehicle under the influence ("OVI"), in violation of R.C. 4511.19(A)(1)(a). At the station, appellee's breath test revealed a blood-alcohol concentration of .132. Thus, he was also cited for OVI pursuant to R.C. 4511.19(A)(1)(d).

(¶3} Appellee filed a motion to suppress and later supplemented his motion seeking to exclude his breath test results due to the unreliability of the Intoxilyzer 8000. The state filed a memorandum in opposition to appellee's challenge to the general reliability of the breath-testing device, arguing 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} After considering the parties' respective arguments, the trial court granted appellee's motion in limine, 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 trial court granted the state's motion to stay execution of the judgment.

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

(¶6} "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."

(¶7} 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.

(¶8} 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 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. Carter at ¶37.

(¶9} Further, this court has held that a defendant is entitled to make specific challenges to the general reliability of the Intoxilyzer 8000 in a motion to suppress. Id. at ¶43. In State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585, this court held:

(¶10} 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 ...


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