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11th District: Court must allow breathalyzer results at trial
TRACEY BLAIR
Legal News Reporter
Published: February 21, 2013
The 11th District Court of Appeals reversed and remanded six Intoxilyzer 8000 cases this week – five in Portage County and one in Lake County.
In each case, the state appealed judgments of the lower court’s decision granting a defendant’s motion to suppress results of the controversial breathalyzer. At issue is whether the state has the burden at a suppression hearing to establish the general scientific reliability of the breath test machine without any specific challenge to the conduct of the subject test.
In State v. Kyle M. Johnson (Case No. 2012-P-008), the appellee was stopped by the Ohio Highway Patrol for speeding.
According to case summary details, the trooper noticed a strong odor of alcohol and did a breath test with the Intoxilyzer. The result of the breath test was a blood-alcohol content of .103.
Johnson filed a motion to suppress arguing the state had no proof the device is “scientifically acceptable and accurate.”
The state disagreed, claiming it was not required to introduce expert testimony from the Department of Health or the manufacturer of the Intoxilyzer 8000 about the general scientific reliability of the device before trial. Prosecutors said a defendant can attack only his or her specific breath test results.
The trial court then granted a 60-day continuance to allow the state to present witnesses to convince the judge of the 8000’s scientific reliability.
The trial court granted the motion to suppress after the state did not present any witnesses at a December 2011 hearing, and issued this ruling: “To simply admit the breath test results from the Intoxilyzer 8000, as the State would want the Court to do, without any hearing to determine the general scientific reliability and admissibility of the breath test results from this machine, and then to argue that the defense cannot challenge the test results at trial pursuant to Vega is in this Court’s opinion a violation of the defendant’s due process rights. The position the State of Ohio is taking in this case by not calling any witnesses at the suppression hearing is not fair and just.”
The state appealed on one assignment of error, claiming the trial court should not have allowed “a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and well-established case law.”
In Vega, the question was “whether an accused may use expert testimony to attack the general reliability of intoxilyzers as valid, reliable breath testing machines 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 a 4-3 decision, 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.’ ”
According to 11th District Judge Timothy P. Cannon’s 2-1 opinion, Johnson did not present any specific challenge to the Intoxilyzer 8000’s reliability. In addition, Cannon said the Ohio Supreme Court and federal courts have significantly revised their approach regarding admitting scientific testing and testimony since the Vega decision.
“The legislature has allowed the director of the department of health to determine that the Intoxilyzer 8000 is generally reliable,” Cannon stated, adding that the burden is on the defendant to come forward with evidence overcoming that presumption.
11th District Judge Thomas R. Wright dissented, arguing the trial court has discretion regarding admissibility.
“The trial court was aware that other courts had deemed the Intoxilyzer 8000 unreliable even thought it was approved,” according to Wright’s dissenting opinion. “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 machine’s reliability was an eminently reasonable and sound legal decision.”
11th District Judge Diane V. Grendell concurred in judgment only, writing a separate opinion that she disagrees a trial court has “exclusive” power to make decisions about evidence.
The other similar decisions are cited: State v. Collazo, No. 2012-L-067, State v. Funk, No. 2012-P-0071, State v. Harmon, No. 2012-P-0067, State v. Hatcher, No. 2012-P-0077 and State v. Schrock, No. 2012-P-0022.