[Cite as State v. Collazo,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellant, : CASE NO. 2012-L-067 - vs - :

BRANDY M. COLLAZO, :

Defendant-Appellee. :

Criminal Appeal from the Painesville Municipal Court, Case No. 12 TRC 607.

Judgment: Reversed and remanded.

Joseph M. Gurley, Painesville City Law Director, 240 East Main Street, Painesville, OH 44077 (For Plaintiff-Appellant).

Joseph Hada, The Law Offices of Saia & Piatt, Inc., 1392 SOM Center Road, Mayfield Heights, OH 44124 (For Defendant-Appellee).

DIANE V. GRENDELL, J.

{¶1} Plaintiff-appellant, the State of Ohio, appeals the June 1, 2012 Judgment

Entry of the Painesville Municipal Court, suppressing the result of a breath test

performed on defendant-appellee, Brandy M. Collazo, using an Intoxilyzer 8000. The

issue before this court is whether a trial court, exercising its evidentiary role as

gatekeeper, may entertain a challenge to the results 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 the

decision of the court below. {¶2} On February 12, 2012, the Ohio State Highway Patrol issued Collazo a

traffic ticket, charging her with OVI, a misdemeanor of the first degree in violation of

R.C. 4511.19(A)(1)(a) (driving under the influence of alcohol) and (d) (driving with a

prohibited breath alcohol concentration), and with a Safety Belt violation, a minor

misdemeanor in violation of R.C. 4513.263(B)(1).

{¶3} On February 14, 2012, Collazo entered a plea of “not guilty.”

{¶4} On March 27, 2012, Collazo filed a Motion to Suppress/Limine, seeking,

inter alia, “to preclude the State from introducing at trial any testimony or test results on

the Intoxilyzer 8000,” on the grounds that “this evidence is unreliable and bears no

relevance to the instant case and the prejudicial effect of its admission would deny her a

fair and impartial trial.”

{¶5} On May 15, 2012, a hearing was held on the Motion to Suppress/Limine.

Collazo asserted that the Intoxilyzer 8000 “had not been shown to be accurate and

reliable and submitted that the results should be inadmissible unless the State produced

evidence that convinced the Court that the testing met general standards of accuracy

and reliability.” The State countered “that it did not have to submit evidence of the

scientific accuracy and reliability of the machine and, moreover, that if the State shows

compliance with the [Ohio Department of Health] rules [the] Court is required to admit

the breath test results.”

{¶6} On June 1, 2012, the municipal court issued a Judgment Entry, granting

Collazo’s Motion. The court concluded that “the State has not persuasively shown the

reliability of the Intoxilyzer 8000,” and ordered “that the result of the breath test

produced by the Intoxilyzer 8000 is hereby suppresed and cannot be introduced at trial.”

{¶7} On June 7, 2012, the State filed its Notice of Appeal.

2 {¶8} On June 15, 2012, the municipal court stayed the matter pending appeal.

{¶9} On appeal, the State raises the following assignment of error:

{¶10} “[1.] The Trial Court erred in finding that the breath tests produced by the

Intoxilyzer 8000 [are] inadmissible as evidence at trial.”

{¶11} The State argues that, purusant to the provisions of Revised Code

3701.143 and Ohio Administrative Code 3701-53-02(A)(3), a trial court is required to

accept the Intoxilyzer 8000 as an appropriate device for chemically analyzing a person’s

breath to ascertain the amount of alcohol in the breath.

{¶12} 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.)

{¶13} “In any criminal prosecution * * * for a violation of division (A) or (B) of

[R.C. 4511.19] * * *, the court may admit evidence on the concentration of alcohol * * *

in the defendant’s * * * breath * * * 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.” R.C. 4511.19(D)(1)(b). “The bodily substance withdrawn under

division (D)(1)(b) of this section shall be analyzed in accordance with methods approved

by the director of health by an individual possessing a valid permit issued by the director

pursuant to section 3701.143 of the Revised Code.”

{¶14} “For purposes of section[] * * * 4511.19 * * * of the Revised Code, the

director of health shall determine, or cause to be determined, techniques or methods for

3 chemically analyzing a person’s * * * breath * * * in order to ascertain the amount of

alcohol * * * in the person’s * * * breath * * *.” R.C. 3701.143.

{¶15} The Ohio director of health has approved the “Intoxilyzer model 8000 (OH-

5)” as an “evidential breath testing instrument[] for use in determining whether a

person’s breath contains a concentration of alcohol prohibited or defined by section[]

4511.19 * * * of the Revised Code.” Ohio Adm.Code 3701-53-02(A)(3).

{¶16} Both the municipal court and Collazo rejected the State’s argument,

contending that the use of permissive language in the OVI statute, i.e., the word “may”

in the phrase “the court may admit evidence on the concentration of alcohol,”

recognizes the trial court’s discretion to admit and to exclude evidence. R.C.

4511.19(D)(1)(b). Under this construction, the court below could, but was not required

to, admit the breath test results of the Intoxilyzer 8000.

{¶17} Consideration of Ohio Supreme Court decisions construing the relevant

statutes compels a different conclusion from the one advanced by the municipal

court/Collazo. In light of these decisions, the trial court’s discretion to admit or exclude

evidence is restricted to determining whether the breath test was conducted “in

accordance with methods approved by the director of health” and “by an individual

possessing a valid permit.” The court’s discretion under R.C. 4511.19(D)(1)(b) does not

permit it to exclude test results based on the “scientific accuracy and reliability” of the

breath testing device, as was done in the present case.

{¶18} The lead Ohio Supreme Court case on this issue is State v. Vega,

,

(1984), 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.

4 4511.19 if analyzed in accordance with methods approved by the Director of Health.”

.1 This is substantially the same question at issue in the present case,

wherein the municipal court acknowledged “the defense made clear through its motions

that it was challenging the accuracy and reliability of the Intoxilyzer 8000 breath testing

device.”

{¶19} In Vega, the Ohio Supreme Court made it clear that “an accused may not

make a general attack upon the reliability and validity of the breath testing instrument.”

. The court explained that, by enacting R.C. 4511.19, the General Assembly

“ha[s] legislatively resolved the questions of the reliability and relevancy of intoxilyzer

tests.”

. “[The judiciary must recognize] the necessary legislative

determination that breath tests, properly conducted, are reliable irrespective that not all

experts wholly agree and that the common law foundational evidence has, for

admissibility, been replaced by statute and rule; and that the legislative delegation was

to the Director of Health, not the court, the discretionary authority for adoption of

appropriate tests and procedures, including breath test devices.”

, citing

State v. Brockway,

,

(4th Dist. 1981).

{¶20} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in

Vega. The court has emphasized that, when regulations are promulgated pursuant to

R.C. 4511.19 and 3107.143, “it must be presumed that the Director of Health acted

upon adequate investigation,” and that the courts “must defer to the department’s

authority and * * * not substitute our judgment for that of the Director of Health.” State v.

Yoder,

,

(1993).

1. In Vega, the defendant sought to challenge the intoxilyzer’s reliability through expert testimony presented at trial, whereas, in the present case the defendant seeks to exclude the intoxilyzer’s test result by placing the burden on the State to prove reliability. The differing procedural posture of Vega is not material to the relevance of its holding to the present case.

5 {¶21} Collazo profers several reductio ad absurdum arguments, claiming that by

interpreting Vega to preclude general challenges to the Intoxilyzer’s reliability, the

director of health could mandate picking test results out of a box at random as an

acceptable testing procedure and the results would have to be accepted. This is not the

import of Vega’s holding, which expressly allowed defendants to demonstrate “there

was something wrong with the test and the results were erroneous.” Id. at ¶ 189.

{¶22} When duly challenged, the State must demonstrate that the bodily

substance was “analyzed in accordance with methods approved by the director of

health” and “by an individual possessing a valid permit.” R.C. 4511.19(D)(1)(b). Vega

recognized 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.” Id. at 189. 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); Columbus

v. Aleshire,

,

,

(10th Dist.)

(“while [supreme court precedent] permits evidentiary objections to the test results

challenging issues such as competency, admissibility, relevancy, authenticity, and

credibility, it does not indicate that a challenge to the ‘general reliability’ is among the

permissible challenges”).

{¶23} Accordingly, Vega does not impose an “all or nothing approach to the

evidential issues surrounding breath testing,” as Collazo suggests. Rather, a trial court

still retains its authority and responsibility to regulate the admission of test results.

6 Where the State fails to demonstrate that it followed the procedures set forth by the

director of health and/or that the operator was properly qualified, test results may be

suppressed. A defendant may also challenge the accuracy of his specific test results at

trial and with evidence going to the weight accorded to the test results.

{¶24} Moreover, to interpret R.C. 4511.19(D)(1)(b) and Vega as urged by

Collazo would frustrate the purpose of delegating the authority for approving methods of

analyzing alcohol concentration in a person’s bodily substance. If the general reliability

of a particular instrument or method could be challenged despite its approval by the

director of health, then all methods currently employed by law enforcement are

vulnerable. Stated otherwise, if the results produced by the Intoxilyzer 8000 may be

challenged, with the State bearing the burden of proving reliability through expert

testimony, then so could the results obtained from the Intoxilyzer 5000 and the various

BAC DataMasters currently approved for use. In like manner, defendants could

challenge previously approved techniques and methods such as gas chromatography

and enzyme assays. Ohio Adm.Code 3701-53-03(A). Equally vulnerable to challenge

would be the methods used for determining concentrations of controlled substances.

Ohio Adm.Code 3701-53-03(B). Finally, law enforcement would be put in the

untenable position of speculating what techniques or instruments might be acceptable

to the courts, with the only recourse being trial and error and appeal throughout Ohio’s

more than 88 county and municipal jurisdictions.

{¶25} When Collazo’s argument has been raised in these other contexts, it has

similarly been rejected. See State v. Klintworth, 4th Dist. No. 10CA40,

(“this court will not allow the defendant to us[e] expert testimony to attack the

general reliability or general accuracy of a legislatively determined test procedure - urine

7 testing - as a valid scientific means of determining blood alcohol levels”) (citation

omitted); State v. Massie, 2nd Dist. No. 2007 CA 24,

(“Massie’s

Daubert challenge [to the BAC DataMaster test results] * * * is forestalled by the

‘legislative mandate recognized in Vega,’ and the trial court properly limited Massie to

the issue of his own test”).

{¶26} Alternatively, it is argued that the delegation of authority to the director of

health to approach testing methods and devices violates the separation of powers

doctrine and infringes upon the trial court’s regulation of the admission of expert

testimony under Evidence Rule 702.

{¶27} “The supreme court shall prescribe rules governing practice and

procedure in all courts of the state * * *. All laws in conflict with such rules shall be of no

further force or effect after such rules have taken effect.” Ohio Constitution, Article IV,

Section 5(B). Thus, “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.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward,

,

(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,

. “When a statute does

not conflict with a Rule of Evidence, a statute can control the admissibility of evidence.”

State v. Cross, 11th Dist. No. 2004-L-208,

.

{¶28} 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

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

Rules 104(A) and 702; but nothing in these Rules 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.”

The Staff Notes elaborate further by stating, “[t]he Rules of Evidence * * * are not an

exhaustive compilation of the rules governing evidence questions, nor are the rules

preemptive as to subjects that they do not address.”

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

, 2005-

Ohio-4629,

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

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

been exceeded.” Id. at ¶ 19.

{¶30} It has also been observed that “the legislature has created standards for

the admissibility of evidence in many instances.” State v. Phipps, 3rd Dist. No. 2-03-39,

.2

{¶31} 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

2. As examples, the Third District Court of Appeals noted: R.C. 2907.02(D) (limiting the admissibility of evidence regarding victim’s sexual activity in prosecutions for Rape); R.C. 4513.263(F) (limiting the permissible uses of evidence regarding the use of occupant restraining devices); R.C. 2925.51(A) (providing that laboratory reports constitute “prima-facie evidence of the content, identity, and weight” of controlled substances); and R.C. 2317.47 (providing for blood-grouping tests to determine identity or paternity).

9 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.

{¶32} Concerns about the reliability of the results in the absence of strict

compliance could be addressed by the defense on cross-examination. Id.

{¶33} 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 admissibility of evidence, but rather

delegate the preliminary determination regarding the scientific reliability of testing

devices to the director of health. That determination is not conclusive as to the ultimate

admissibility of the test results. As noted above, the State must demonstrate that the

bodily substance was “analyzed in accordance with methods approved by the director of

health.” R.C. 4511.19(D)(1)(b). 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. Vega,

,

; Tanner,

,

.

{¶34} In the present case, Collazo introduced no evidence on which the

municipal court could have concluded that the test results of the Intoxilyzer 8000 were

10 unreliable. In order to rebut the Vega presumption, Collazo was required to raise

specific procedural and substantive challenges. Collazo has failed to so.

{¶35} The State’s sole assignment of error is with merit.

{¶36} For the foregoing reasons, the judgment of the Painesville Municipal

Court, granting Collazo’s Motion to Suppress/Limine, is reversed, and this cause is

remanded for further proceedings consistent with this opinion. Costs to be taxed

against appellee.

MARY JANE TRAPP, J., concurs,

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

____________________

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

{¶37} 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.

{¶38} 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

11 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.

{¶39} 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

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

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

{¶40} 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).

{¶41} 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

12 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).

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

the defendant’s substantive due process rights.

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

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

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).

{¶44} 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).

{¶45} 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

13 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.

{¶46} 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.) Id. at 186.

{¶47} 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.

{¶48} 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.

14 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

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.

{¶49} 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).

{¶50} 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).

{¶51} 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

15 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.

{¶52} 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