[Cite as State v. Tagliaferri,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellant, : CASE NO. 2012-P-0094 - vs - :

JODIE L. TAGLIAFERRI, :

Defendant-Appellee. :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2012 TRC 5010.

Judgment: Reversed and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

Dan J. Weisenburger, 121 East Main Street, Ravenna, OH 44266 (For Defendant- Appellee).

DIANE V. GRENDELL, J.

{¶1} Plaintiff-appellant, the State of Ohio, appeals from the judgment of the

Portage County Municipal Court, Ravenna Division, granting defendant-appellee, Jodie

L. Tagliaferri’s, Motion to Suppress and Motion in Limine. The issue to be decided in

this case is whether a trial court, in the performance of its role as gatekeeper, may

require the State to demonstrate the general scientific reliability of a breath testing

instrument where the Ohio director of health has approved such instrument for determining the concentration of alcohol in a person’s breath. For the following

reasons, we reverse and remand the decision of the court below.

{¶2} On April 14, 2012, Tagliaferri was issued a traffic ticket, charging her with

Operating a Vehicle While Under the Influence (OVI), a misdemeanor of the first

degree, in violation of R.C. 4511.19(A)(1)(a); OVI, a misdemeanor of the first degree, in

violation of R.C. 4511.19(A)(1)(d); and Improper Passing, a minor misdemeanor, in

violation of R.C. 4511.27.

{¶3} On May 30, 2012, the State filed a “Brief Regarding Intoxilyzer 8000

Hearing.” In that Brief, the State argued that it need not present evidence to establish

the general reliability of the Intoxilyzer 8000, citing State v. Vega,

,

(1984).

{¶4} On June 14, 2012, Tagliaferri filed a Motion in Limine, arguing that the

results of the breath test conducted with the Intoxilyzer 8000 had “not been accepted by

[the trial court] as [an] accurate and reliable testing instrument.” The Motion in Limine

asserted that the trial court should apply its decision in State v. Johnson, Portage

County Municipal Court case 2011 TRC 04090, to restrict the State from admitting the

results of the breath test at trial in the present case.

{¶5} On the same date, Tagliaferri filed a Motion to Suppress, asserting that

the results of the breath test taken with the Intoxilyzer 8000 should be excluded. In the

motion, she raised various alleged errors related to the test, including, inter alia, that the

breath samples were not analyzed properly or taken in accordance with the law, that the

instrument operator was not properly qualified, and that the instrument used in her case

2 “failed to automatically perform a dry gas control test” as required by the Ohio

Administrative Code.

{¶6} A hearing on the Motion to Suppress and Motion in Limine was held on

August 9, 2012. At that hearing, the court noted that both sides had submitted briefs

regarding issues related to the Intoxilyzer 8000 test. The State requested that the court

“accept the general reliability” of the test, while Tagliaferri argued that the court should

follow its prior decision in Johnson and not allow the Intoxilyzer results into evidence.

{¶7} In an August 9, 2012 Journal Entry, the trial court granted what it referred

to as Tagliaferri’s “Motion to Suppress Motion In Limine,” with respect to the results of

the Intoxilyzer 8000. The court noted that it “limits its review of Defendant’s Motion to

Suppress Motion in Limine solely to the admissibility of a BAC test from the Intoxilyzer

8000.” It found that the issue in the present matter was “identical” to the one in State v.

Johnson. In Johnson, the trial court held that the State was required to present

evidence at a hearing for the trial court to determine the general scientific reliability and

admissibility of the breath test results of the Intoxilyzer 8000. In the present matter, the

court held that “the rationale and findings in Johnson are likewise applicable to this

case.” It held that the “results of the breath results from the Intoxilyzer 8000 are not

admissible at the trial of Defendant,” and that “[t]he remaining charges alleging a

violation of ORC 4511.19(A)(1)(a) and 4511.27 shall be set for trial on the Court’s

docket.”

{¶8} The State timely appeals and raises the following assignment of error:

3 {¶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} The appropriate standard of review where the lower court’s judgment is

challenged on a purported misconstruction of the law is de novo. State v. Morris,

,

,

, ¶ 16. “In determining a pure

question of law, an appellate court may properly substitute its judgment for that of the

trial court.” (Citation omitted.)

{¶11} In its sole assignment of error, the State argues that, pursuant to the

provisions of R.C. 3701.143 and Ohio Adm.Code 3701-53-02(A), a trial court is required

to accept the Intoxilyzer 8000 as an appropriate device for chemically analyzing a

person’s breath to determine the amount of alcohol in the breath. It further argues that

pursuant to Vega, a defendant may not attack the general reliability of a breath testing

instrument and the State is not required to present evidence to support a determination

that the test is generally reliable.

{¶12} Tagliaferri rejects the State’s argument for several reasons, including the

contention that the use of the word “may” in the phrase “the court may admit evidence

on the concentration of alcohol” in the OVI statute and the Ohio Rules of Evidence

recognizes the trial court’s discretion to admit and exclude evidence, and that a

threshold showing of reliability by the State is required.

{¶13} The Ohio General Assembly has charged the Ohio director of health to

“determine, or cause to be determined, techniques or methods for chemically analyzing

a person’s * * * breath * * * in order to ascertain the amount of alcohol * * * in the

4 person’s * * * breath[.]” R.C. 3701.143. The Intoxilyzer 8000 has been approved as an

“evidential breath testing instrument” by the director of health. Ohio Adm.Code 3701-

53-02(A)(3).

{¶14} This court has recently addressed the exact issue raised by the State

regarding the general reliability of the Intoxilyzer 8000 and determined that, pursuant to

Vega, a defendant may not make “a general attack upon the reliability and validity of the

breath testing instrument,” although breath test results are subject to challenge on a

variety of grounds, including specific attacks on the reliability of the test and attacks on

the performance of the test in a specific defendant’s case. State v. Miller, 11th Dist. No.

2012-P-0032,

, ¶ 30-32; State v. Carter, 11th Dist. No. 2012-P-0027,

, ¶ 25 and 35; State v. Rouse, 11th Dist. No. 2012-P-0030, 2012-Ohio-

5584, ¶ 24 and 32.

{¶15} As was discussed in the foregoing cases, the lead Ohio Supreme Court

case on this issue is Vega, in which the court addressed the issue of whether the

general reliability of intoxilyzers could be challenged “in view of the fact that the General

Assembly has legislatively provided for the admission of such tests in R.C. 4511.19 if

analyzed in accordance with methods approved by the Director of Health.”

,

. In Vega, the Ohio Supreme Court made clear that “an

accused may not make a general attack upon the reliability and validity of the breath

testing instrument,” since the General Assembly “ha[s] legislatively resolved the

questions of the reliability and relevancy of intoxilyzer tests.”

.

{¶16} While no general attack on reliability may be made, when duly challenged,

the State must demonstrate that the bodily substance was “analyzed in accordance with

5 methods approved by the director of health by an individual possessing a valid permit.”

R.C. 4511.19(D)(1)(b). The Ohio Supreme Court has affirmed that “[t]here is no

question that the accused may * * * attack the reliability of the specific testing procedure

and the qualifications of the operator,” as well as present “expert testimony as to testing

procedures at trial going to weight rather than admissibility.”

. Thus, “[t]he

defendant may still challenge the accuracy of his specific test results, although he may

not challenge the general accuracy of the legislatively determined test procedure as a

valid scientific means of determining blood alcohol levels.” State v. Tanner,

,

(1984); French, 72 Ohio St.3d at 451-452,

.

{¶17} 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, as opposed to general

assertions that the State failed to prove its reliability, which is prohibited under Vega.

See

.

{¶18} Tagliaferri also argues that the delegation of authority to the director of

health to determine the validity of testing devices violates the separation of powers

doctrine and infringes upon the trial court’s role as gatekeeper and its regulation of the

admission of expert testimony under Evidence Rule 702 and Daubert v. Merrill Dow

Pharmaceuticals, Inc.,

,

,

(1993).

{¶19} “The Ohio Rules of Evidence, which were promulgated by the Supreme

Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must control over

subsequently enacted inconsistent statutes purporting to govern evidentiary matters.”

(Citation omitted.) State ex rel. Ohio Academy of Trial Lawyers v. Sheward,

6 St.3d 451, 491,

(1999). “In order to demonstrate the legislature

infringed upon the judiciary’s power to enact evidentiary rules appellant must

demonstrate the legislation contradicts or is an attempt to supersede an existing

evidentiary rule.” State v. Boczar, 11th Dist. No. 2004-A-0063,

.

{¶20} The delegation of authority to the director of health to establish the

appropriate methods for determining the amount of alcohol in a defendant’s bodily

substances does not conflict with any Rule of Evidence. Tagliaferri refers to Evidence

Rule 702 as interpreted in Daubert; but nothing in this rule establishes the trial court as

the sole “gatekeeper” with respect to the general reliability of instruments measuring the

concentration of alcohol in a person’s bodily substances. On the contrary, Evidence

Rule 102 states that “[t]hese rules shall not supersede substantive statutory provisions.”

Assertions that Daubert precludes a conclusion that the State is not required to present

evidence of general reliability have been previously rejected by this court. Miller, 2012-

Ohio-5585, at ¶ 29, citing State v. Massie, 2nd Dist. No. 2007 CA 24,

(noting that a Daubert challenge or presentation of expert testimony is “forestalled

by the ‘legislative mandate recognized in Vega’”) (citation omitted); Rouse, 2012-Ohio-

5584, at ¶ 28 (“a Daubert hearing is unnecessary as it pertains to the general reliability

of the Intoxilyzer”).

{¶21} The Ohio Supreme Court, in State v. Mayl,

, 2005-

Ohio-4629,

, expressly characterized R.C. 4511.19(D)(1) as a “three-

paragraph gate-keeping statute.” Id. at ¶ 20. Where R.C. 4511.19(D)(1) is satisfied, it

does “no[t] matter under which portion of R.C. 4511.19(A) a person is charged, the state

has the opportunity to offer the results of a ‘bodily substance’ test to show either

7 impairment * * * or to show that the statutory concentrations of alcohol or drugs have

been exceeded.” Id. at ¶ 19.

{¶22} In a similar situation, the Ohio Supreme Court considered the General

Assembly’s authority to statutorily provide for the admissibility of the results of field

sobriety tests based on substantial compliance, rather than the strict compliance

standard, based on common law, adopted by Ohio courts. The Supreme Court found

no encroachment “on the exclusive rule-making authority of the judiciary.” State v.

Boczar,

,

,

, ¶ 22. While

acknowledging that “[t]he trial judge is the guardian of the admissibility of evidence,” the

General Assembly, “through its deliberative process,” could conclude “that failure to

strictly comply with test procedures affects the evidentiary value of field sobriety tests

but that substantial compliance will not result in the tests’ exclusion,” i.e., “that the tests

are sufficiently reliable to be admissible by meeting a clear-and-convincing standard.”

Id. at ¶ 23.

{¶23} Likewise, in the present case, R.C. 3701.143 and R.C. 4511.19(D)(1) do

not preempt the trial court’s authority to rule on the ultimate admissibility of evidence,

but rather delegate the preliminary determination regarding the general scientific

reliability of testing devices to the director of health. As noted above, the defendant

may always challenge the accuracy of his or her specific test results and the

qualifications of the person administering the test, and otherwise strive to discredit the

weight to be given the specific test results, as well as make an attack on the reliability of

the Intoxilyzer 8000 based on specific reasons instead of general assertions of the

State’s failure to prove its reliability. This is also consistent with this court’s recent

8 holding in Rouse.

, at ¶ 21 (“a defendant is entitled to produce

evidence to assail the particular results of the subject test, thereby preserving the trial

court’s role as gatekeeper”). Therefore, Tagliaferri’s contentions that she is left with “no

means” to challenge the reliability of the Intoxilyzer and is deprived of her right to

present a defense are unfounded.

{¶24} Tagliaferri also asserts that Vega is distinguishable from the present

matter since the law regarding OVI offenses has changed since Vega was decided.

She notes that the statutes enacted post-Vega involve “per se” offenses, which prohibit

driving with a certain blood alcohol level, and that the blood alcohol test is essentially

conclusive of whether the crime of OVI has been committed.

{¶25} As was noted by this court in Carter, however, “[t]he Supreme Court

reaffirmed its holding in Vega in State v. Tanner,

,

(1984), and applied it to per se OVI violations. The court in Tanner held: ‘[t]he

defendant may still challenge the accuracy of his specific test results, although he may

not challenge the general accuracy of the legislatively determined test procedure as a

valid scientific means of determining blood alcohol levels.’ (Emphasis added.)

.”

2012-Ohio- 5583, at ¶ 27. Even in cases involving per se violations, the courts must

follow the requirement of Vega to accept the general accuracy of Intoxilyzer 8000

results, especially given that a defendant is still able to raise specific challenges to his

test results, even in cases of per se violations.

{¶26} We note that, in the present case, Tagliaferri challenged the breath test

results of the Intoxilyzer 8000 in her Motion to Suppress based on several grounds,

including, inter alia, that the testing instrument was not working properly, the instrument

9 operator lacked the necessary qualifications, a dry gas control test was not performed,

and that other regulations related to the breath test were not followed. She also raised

other issues unrelated to the breath test, including whether there was reasonable

suspicion to conduct the stop. However, the municipal court appears to have granted

Tagliaferri’s Motion solely on the grounds stated in Johnson, that the State failed to

produce evidence of the Intoxilyzer 8000’s general scientific reliability and not on any

other grounds raised in the Motion to Suppress. Accordingly, on remand, it will be

necessary for the court to hold another hearing to address the other issues raised in

Tagliaferri’s Motion to Suppress. Miller,

, at ¶ 34. While Tagliaferri

argues specifically in her brief that the failure to run the dry gas control test rendered the

breath test results inadmissible, this issue has not yet been considered by the court

below, since it granted the Motion based only on the general admissibility issue.

Therefore, this issue can be considered upon remand with the others raised in the

Motion to Suppress.

{¶27} The sole assignment of error is with merit.

{¶28} For the foregoing reasons, the judgment of the Portage County Municipal

Court, Ravenna Division, granting Tagliaferri’s Motion to Suppress and Motion in

Limine, is reversed, and this cause is remanded for further proceedings consistent with

this opinion. Costs to be taxed against appellee.

TIMOTHY P. CANNON, P.J., concurs,

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

10 ______________________

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

{¶29} R.C. 4511.19(D)(1)(b) does not mandate admissibility of breath test

results derived from the Intoxilyzer 8000. Rather, that statute which, by its plain

language controls the issue in this case, vests the trial court with discretion regarding

admissibility despite approval from the director. I, therefore, respectfully dissent.

{¶30} R.C. 3701.143 empowers the director to approve breath testing devices,

and R.C. 4511.19(D)(1)(b) grants trial courts the discretion to admit the results from

approved devices without further proof of reliability when circumstances warrant.

Although some claim the contrary, nobody is correct all the time. In recognizing human

fallibility, the legislature had the wisdom to vest within the trial court the discretion per

R.C.4511.19(D)(1)(b) to conduct further inquiry when there is an issue as to the

reliability of an approved breath testing device before admitting the results.

{¶31} R.C. 4511.19(D)(1)(b) states that “[i]n any criminal prosecution or juvenile

court proceeding for a violation of division (A) or (B) of this section or for an equivalent

offense that is vehicle-related, the court may admit evidence on the concentration of

alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance,

or a combination of them in the defendant’s whole blood, blood serum or plasma,

breath, urine, or other bodily substance at the time of the alleged violation as shown by

chemical analysis of the substance withdrawn within three hours of the time of the

alleged violation[,]” and “[t]he bodily substance withdrawn under division (D)(1)(b) of this

section shall be analyzed in accordance with methods approved by the director of

11 health by an individual possessing a valid permit issued by the director pursuant to

section 3701.143 of the Revised Code.” (Emphasis added.)

{¶32} The statute does not use the word “shall,” which would mandate

admission regardless of the circumstances. Rather, the statute uses the word “may.”

For purposes of statutory construction, “use of the word ‘may’ is generally construed to

make the provision in which it is contained optional, permissive, or discretionary * * *.”

Dorrian v. Scioto Conservancy Dist.,

(1971); State v. Suchevits,

(11th Dist. 1999).

{¶33} In this case, the trial court exercised its discretion not to admit the breath

test absent proof from the state that the Intoxilyzer 8000 is generally reliable, a decision

consistent with the discretion it possesses under R.C.4511.19(D)(1)(b). As reliability

presents a threshold admissibility issue, reliability, as opposed to the weight to be

afforded any admitted evidence, is one for the trial court. Knott v Revolution Software

Inc.

,

(5th Dist.); State v. Riley, 6th Dist. No.

WD-03-076,

(expert testimony must be deemed reliable before it is

deemed admissible.); Saad v. Shimano American Corp.,

,

*7 (N.D. Ill. 2000)(The Supreme Court has made it clear that the courts must allow into

evidence only expert testimony that meets certain threshold standards of reliability and

usefulness).

{¶34} Moreover, the determination of evidential reliability necessarily implicates

the defendant’s substantive due process rights.

{¶35} “Substantive due process, [although an] ephemeral concept, protects

specific fundamental rights of individual freedom and liberty from deprivation at the

12 hands of arbitrary and capricious government action. The fundamental rights protected

by substantive due process arise from the Constitution itself and have been defined as

those rights which are ‘implicit in the concept of ordered liberty.’ (* * *) While this is

admittedly a somewhat vague definition, it is generally held that an interest in liberty or

property must be impaired before the protections of substantive due process become

available.” State v. Small, 162 Ohio App.3d. 375,

(10th Dist.),

quoting Gutzwiller v. Fenik, 860 F. 2d. 1317, 1328 (6th Cir. 1989).

{¶36} However vague the conceptual parameters of one’s substantive due

process guarantees may be, the following principle is clear; “[substantive] * * * due

process is violated by the introduction of seemingly conclusive, but actually unreliable

evidence.” Barefoot v. Estelle,

(1983).

{¶37} The trial court was aware that other courts had deemed the Intoxilyzer

8000 unreliable even though it was approved. Against the backdrop, the court ordered

the state to establish the general reliability of the Intoxilyzer 8000 before admitting the

results. Given the constitutional gravity of admitting unreliable results, however, and its

statutory authority to act as gatekeeper regarding breath test results, the lower court’s

decision to require the state to produce evidence of the machines reliability was an

eminently reasonable and sound legal decision. “[A]n abuse of discretion is the trial

court’s ‘failure to exercise sound, reasonable, and legal decision-making.’” State v.

Beechler, 2d Dist. No. 09-CA-54,

, ¶62, quoting Black’s Law Dictionary

(8 Ed.Rev. 2004) 11.

{¶38} Rather than present evidence of the general reliability of the Intoxilyzer

8000, the state took the position that the trial court could not require it to do so pursuant

13 to Vega and its progeny. Vega,

(1984). I do not read Vega as

holding that under no circumstances can a trial court exercise its discretion to require

evidence of general reliability of an approved breath testing device as a condition to

admissibility.

{¶39} In Vega, the court held “* * * an accused is not denied his constitutional

right to present a defense nor is the state relieved of its burden of proving guilt beyond a

reasonable doubt where a trial judge does not permit expert testimony to attack the

reliability of intoxilyzers in general.” (Emphasis added.)

.

{¶40} Threshold admissibility was not at issue in Vega. That is, the defendant

made no challenge to the trial court’s admission of his breath test result. Instead, after

the state presented its case and rested, the defendant attempted to present a

“reliability” defense by attacking intoxilyzers in general. See also State v. Vega, 5th

Dist. No. CA-1766, 1993 Ohio App LEXIS 14350, *16 (Nov.22, 1983)(Hoffman, J.,

dissenting). Unlike Vega,

, threshold admissibility is the issue in the

case before us. Moreover, unlike Vega, our case is not about the reliability of

intoxilyzers in general. Our case is limited to whether the Intoxilyzer 8000 is reliable. In

short, the circumstances at issue in Vega were fundamentally distinguishable from

those in our case.

{¶41} Additionally, the rule in Vega does not contemplate a situation where, as

here, an approved device’s general reliability has been assessed by other courts for

both use in and out of this state and the device’s reliability has been found suspect.

See State v. Johnson, Portage County Municipal Court, January 6, 2012. Vega

expressly states that its holding does not involve a situation where there was an

14 assertion that there was an abuse of discretion by the director in approving the breath

testing device at issue.

. Obviously, in our case if the Intoxilyzer

8000 is unreliable, approval would amount to an abuse of discretion and admission of

the test results a violation of substantive due process.

{¶42} Breath tests are “‘* * * generally recognized as being reasonably reliable

on the issue of intoxication when conducted with proper equipment and by competent

operators.’” (Emphasis added.)

, quoting Westerville v. Cunningham,

(1968). Thus, the central issue as presented in the case before us,

does the Intoxilyzer 8000 qualify as “proper equipment”? The answer is “yes” if it is

generally reliable and “no” if it is not. This is a query, however, that, under Ohio law, a

trial court is entitled to resolve pursuant to R.C. 4511.19(D)(1)(b).

{¶43} In this case, the trial court exercised its discretion to safeguard the

defendant’s right to substantive due process by merely requiring the state to show the

Intoxilyzer 8000 is generally reliable. Under the circumstances, this decision was sound

and reasonable. This is particularly true in light of the fact that a trial court is vested

with broad discretion in the admission or exclusion of evidence and in recognition that it

has inherent power to exclude or strike evidence on its own motion. Caroll v Caroll, 7th

Dist. No. 89-C-1,

, *8 (April 5, 1990); Neil v. Hamilton

County,

; Oakbrook Realty Corp. v. Blout,

(10th Dist. 1988).

{¶44} Given the foregoing point, there is no reason to remand this case to the

trial court based upon perceived inadequacies in the motion to suppress. The trial court

made it abundantly clear that it would not admit the test results absent proof of reliability

15 of the Intoxilyzer 8000. Requiring the proponent to establish the reliability of scientific

evidence is something that a trial court may require as previously discussed. The state

was well aware of what the trial court required when it ordered it to produce evidence of

the Intoxilyzer 8000’s reliability, independent and irrespective of the contents of the

motion to suppress. Accordingly, there is no procedural due process violation of the

state’s right to notice and an opportunity to be heard. The trial court’s order was

unambiguous and an exercise of the sound discretion as the gatekeeper of breath test

result admissibility.

{¶45} When an appellate court [**14] is reviewing a pure issue of law, “the mere

fact that the reviewing court would decide the issue differently is enough to find error (of

course, not all errors are reversible. Some are harmless; others are not preserved for

appellate review). By contrast, where the issue on review has been confined to the

discretion of the trial court, the mere fact that the reviewing court would have reached a

different result is not enough, without more, to find error.” Sertz v. Sertz, 11th Dist. No.

2011-L-063, quoting Beechler,

at ¶67.

{¶46} This appeal is centered around a discretionary decision made by the trial

court. As I find the court’s decision not only reasonable, but constitutionally astute, I

would affirm the trial court’s exclusion of the breath test in light of the state’s refusal to

present evidence on the issue.

16