State v. Tucker , 2013 Ohio 5814 ( 2013 )

[Cite as State v. Tucker, 2013-Ohio-5814.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2012-P-0142
- vs - :
JUSTIN DEAN TUCKER, :
Defendant-Appellee. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R 2012 TRC 5454.
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).
CYNTHIA WESTCOTT RICE, J.
{¶1} The state of Ohio appeals the judgment of the Portage County Municipal
Court, Ravenna Division, granting a motion in limine seeking to exclude the results of an
Intoxilyzer 8000 test filed by appellee, Justin Dean Tucker.
{¶2} On the morning of April 19, 2012, appellee was stopped for speeding.
Appellee failed field sobriety tests and was charged with operating a vehicle under the
influence (“OVI”) pursuant to R.C. 4511.19(A)(1)(a). At the station, appellee’s breath
test revealed a blood-alcohol concentration of .115. Thus, he was also cited for OVI
pursuant to R.C. 4511.19(A)(1)(d).
{¶3} Appellee filed a motion in limine to exclude the results of his breath test,
challenging the general reliability of the Intoxilyzer 8000. 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} After considering the parties’ relative 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} Pursuant to this court’s en banc judgment and opinion in State v.
Bergman, 11th Dist. Portage No. 2012-P-0124, 2013-Ohio-____, the state’s assignment
of error has merit.
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{¶8} It is therefore the judgment and order of this court that the judgment of the
Portage County Municipal Court, Ravenna Division, is reversed, and this matter is
remanded to the trial court for further proceedings.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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