State v. Dugan ( 2013 )

[Cite as State v. Dugan, 2013-Ohio-447.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellant, : CASE NO. CA2012-04-081
: OPINION
- vs - 2/11/2013
:
LAUREN DUGAN, :
Defendant-Appellee. :
APPEAL FROM BUTLER COUNTY AREA III COURT
Case No. 11TRC01119
Michael T. Gmoser, Butler County Prosecuting Attorney, Donald R. Caster, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellant
Jeffrey C. Meadows, 8310 Princeton-Glendale Road, West Chester, Ohio 45069, for
defendant-appellee
YOUNG, J.
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals an order of the Butler County Area
III Court granting a motion to suppress filed by defendant-appellee, Lauren Dugan. For the
reasons stated below, we reverse the decision of the trial court.
{¶ 2} On March 12, 2011, Dugan was pulled over for a center line violation. After a
series of sobriety tests, Dugan was arrested for operating a vehicle while under the influence
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of alcohol. Dugan was transported to the West Chester Police Department where she took a
breath-alcohol-content (BAC) test on the Intoxilyzer 8000. The Intoxilyzer printed out a
Subject Test Report which indicated that "Subject Sample 1" had a result of .171 and
"Subject Sample 2" had a result of .175. Dugan was then charged with operating a vehicle
while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and R.C.
4511.19(A)(1)(h).
{¶ 3} Dugan pled not guilty to the charges and filed a motion to suppress. The trial
court held a hearing regarding the motion to suppress on September 9, 2011, and November
4, 2011. On the first day of the suppression hearing, the state presented two witnesses. The
first witness was Mary Martin, the Ohio Department of Health (ODH) program administrator of
alcohol and drug testing. Martin explained that she is "in charge of doing all of the policies
and procedures and reviewing the rules" for ODH and has been trained regarding the
construction and operation of the Intoxilyzer 8000. During her testimony, Martin explained
the meaning of terms found on various ODH documents. One of these documents was
Dugan's Subject Test Report printed out from the Intoxilyzer. Martin explained that the
Subject Test Report showed that the Intoxilyzer took two "subject samples" of Dugan's
breath. On cross-examination, Martin was questioned regarding the meaning of "sample
attempt" as used in the ODH documents. Martin explained that "sample attempt" refers to
the number of times a person blows into the Intoxilyzer.
{¶ 4} West Chester Police Officer Michael Lopez also testified regarding his
involvement in the case. Lopez stopped Dugan for a center line violation, and administered
both the field sobriety tests and the breath test on the Intoxilyzer 8000. Lopez stated that he
recalls Dugan giving two breath samples into the Intoxilyzer that night. Additionally, Lopez
noted that the Subject Test Report showed that Dugan gave two samples of breath into the
Intoxilyzer. He explained that during the breath tests, the Intoxilyzer 8000 produces an
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audible tone when a person is blowing into the machine correctly. An interruption in the
audible tone will occur if the person stops blowing into the machine. Lopez stated that during
Dugan's test he did not remember any interruptions in the audible tone and that there was no
indication from the Intoxilyzer that she did not give an accurate sample.
{¶ 5} On cross-examination, defense counsel presented Officer Lopez with a
document that contained details of Dugan's breath tests from the ODH website. The ODH
website collects and stores information obtained by the Intoxilyzer on a central database.
The document indicated that the Intoxilyzer recorded three "sample attempts" during Dugan's
first blow into the machine. Officer Lopez testified that he did not observe multiple attempts
at a valid sample collection for the first sample nor did he hear any interruption in the audible
tone during Dugan's breath tests. Lopez stated that the document was not consistent with
what he observed.
{¶ 6} After Officer Lopez's testimony, the hearing was continued so that the state
could recall Martin regarding the alleged discrepancy between the ODH document and the
observations from Officer Lopez. On the second day of the suppression hearing, Martin
explained that the ODH website document contains more information about the breath test
than the Subject Test Report and the Subject Test Report does not include information about
sample attempts. She stated that as recorded on the ODH website document, "sample
attempt" refers to how many times air has been put into the breath hose during the attempt.
Therefore, any air that gets pushed into the mouthpiece counts as a sample attempt. Thus,
there could be multiple sample attempts even though an individual has not removed the hose
from her mouth. The machine registers these attempts without giving any audible tone, so
the officer administering the test might be unaware that the instrument had recorded a
sample attempt.
{¶ 7} On March 20, 2012, the trial court partially granted Dugan's motion to suppress
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the breath-test result reasoning that the Intoxilyzer 8000 was flawed when used to measure
Dugan's BAC. The court overruled Dugan's motion to suppress regarding all other issues.
{¶ 8} The state now appeals, asserting a sole assignment of error:
{¶ 9} THE TRIAL COURT ERRED IN SUPPRESSING THE RESULTS OF THE
BREATH TEST TAKEN BY DEFENDANT-APPELLEE.
{¶ 10} Appellate review of a ruling on a motion to suppress presents a mixed question
of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When
considering a motion to suppress, the trial court, as the trier of fact, is in the best position to
weigh the evidence in order to resolve factual questions and evaluate witness credibility.
State v. Eyer, 12th Dist. No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate
court must accept the trial court's findings of fact so long as they are supported by
competent, credible evidence. State v. Lange, 12th Dist. No. CA2007-09-232, 2008-Ohio-
3595, ¶ 4. After accepting the trial court's factual findings as true, the appellate court must
then determine, as a matter of law, and without deferring to the trial court's conclusions,
whether the trial court applied the appropriate legal standard. State v. Dierkes, 12th Dist. No.
2008-P-085, 2009-Ohio-2530, ¶ 17.
{¶ 11} We initially consider the parties' disagreement over whether the state's appeal
is proper under Crim. R. 12(K) and R.C. 2945.67. We then consider whether the court erred
in suppressing the BAC test results and the trial court's role in determining the admissibility of
BAC test results.
Propriety of Appeal
{¶ 12} We begin by addressing whether the state's appeal is proper under
Crim.R.12(K) and R.C. 2945.67. Dugan argues the state's appeal is improper because the
state failed to establish that it is unable to proceed with the prosecution due to the trial court's
suppression of the BAC test results.
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{¶ 13} R.C. 2945.67(A) allows a prosecutor in a criminal case to appeal as a matter of
right a decision of a trial court to suppress evidence. State v. Matthews, 81 Ohio St.3d 375,
377-378 (1998). Crim.R. 12(K) states in part:
[w]hen the state takes an appeal as provided by law from an
order suppressing evidence * * * the prosecuting attorney shall
certify that both of the following apply:
(1) the appeal is not taken for the purpose of delay;
(2) the ruling on the motion or motions has rendered the state's
proof with respect to the pending charge so weak in its entirety
that any reasonable possibility of effective prosecution has been
destroyed * * *.
{¶ 14} An appellate court is without authority to review a prosecutor's Crim.R. 12(K)
(formerly Crim.R. 12(J)) certification that the granting of a motion to suppress has rendered
the state's proof with respect to the pending charges so weak in its entirety that any
reasonable possibility of effective prosecution has been destroyed. State v. Bertram, 80
Ohio St.3d 281 (1997), paragraph two of the syllabus. Therefore, when a trial court grants a
motion to suppress evidence and the prosecutor has filed a proper Civ.R. 12(K) certification,
the appellate court does not have the discretion to decide whether to allow the appeal. Id. at
283.
{¶ 15} We find that the appeal is proper pursuant to R.C. 2945.67 and Crim.R. 12(K).
In this case, the state was appealing the trial court's decision suppressing Dugan's Intoxilyzer
8000 test results. Thus, the state's appeal is a matter of right pursuant to R.C. 2945.67.
Additionally, the prosecutor certified that the appeal was not taken for purposes of delay and,
as a result of the trial court's decision, any reasonable possibility of effective prosecution with
respect to Dugan's alleged violation of R.C. 4511.19(A)(1)(h) was destroyed. As noted
above, once the prosecutor has certified that the trial court's decision suppressing the
evidence renders the pending charges so weak that it destroys the state's case, we are
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unable to review the decision. Thus, we find this appeal proper.
Admissibility of Intoxilyzer 8000 Test Results
{¶ 16} Next, we address whether the trial court erred in suppressing the Intoxilyzer
8000 breath test results. The parties dispute the trial court's role in determining the
admissibility of BAC results from a breath testing instrument. The state argues that Ohio
Supreme Court jurisprudence prohibits a trial court from suppressing BAC results based on
the general unreliability of the breath testing instrument or because of a malfunction of the
specific machine. Instead, a trial court may only suppress BAC results upon a showing of a
violation of an ODH regulation. In this case, the state contends that no ODH regulations
were violated.
{¶ 17} Dugan responds by arguing that the trial court's evidentiary gatekeeping role
along with the discretionary language in R.C. 4511.19 allows the court to suppress BAC
results based on evidence that the instrument is unreliable. Additionally, Dugan argues that
two ODH regulations were violated. Therefore, the court did not err in suppressing the test
results.
{¶ 18} The Ohio General Assembly has addressed the admissibility of evidence from
various alcohol-determinative-testing devices in R.C. 4511.19(D)(1)(b). The statute provides:
[i]n any criminal prosecution or juvenile 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 * * * 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.
***
The bodily substance withdrawn under (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 * * *.
{¶ 19} Pursuant to R.C. 3701.143, the director of health shall determine the suitable
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methods for breath-alcohol analysis. The Intoxilyzer 8000 has been approved as one of
these breath-testing instruments. Ohio Adm.Code 3701-53-02(A)(3).
{¶ 20} In State v. Vega, 12 Ohio St.3d 185 (1984), the Ohio Supreme Court addressed
whether an accused can use expert testimony to attack the general reliability of breath-
testing instruments in light of R.C. 4511.19. The Court stated that by enacting R.C. 4511.19,
the General Assembly acknowledged the wide acceptance of these machines and
"legislatively resolved the questions of the reliability and relevancy of intoxilyzer tests." Id. at
188. The Court reasoned that the statute represented "the necessary legislative
determination that breath tests, properly conducted, are reliable * * * and that the common
law foundational evidence has, for admissibility, been replaced by statute and rule * * *." Id.
at 188-189. Therefore, "an accused may not make a general attack upon the reliability and
validity of the breath testing instrument." Id. at 190.
{¶ 21} The Court went on to state that while an accused cannot challenge the general
reliability of BAC machines, "[t]here is no question that the accused may also attack the
reliability of the specific testing procedure and the qualifications of the operator. Defense
expert testimony as to testing procedures at trial going to weight rather than admissibility is
allowed." (Citations omitted.) Id. at 189. The Supreme Court upheld this result as applying
to per se OVI offenses a few months later. State v. Tanner, 15 Ohio St.3d 1, 6 (1984).
{¶ 22} This district and others have universally recognized that Vega prohibits a
general attack on the reliability of breath testing instruments. State v. Plunkett, 12th Dist. No.
CA2001-01-012, 2008-Ohio-1014, ¶ 29; State v. Luke, 10th Dist. No. 05AP-371, 2006-Ohio-
2306, ¶ 22; State v. Birkhold, 5th Dist. No. 01CA104, 2002 WL 727154, *2 (April 22, 2002);
State v. Massie, 2d Dist. No. 2007CA24, 2008-Ohio-1312, ¶ 15; State v. Miller, 11th Dist. No.
2012-P-0032, 2012-Ohio-5585, ¶ 26. Additionally, some appellate courts have interpreted
Vega and subsequent Ohio Supreme Court cases to prohibit suppression of BAC test results
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based on any argument regarding the reliability of a breath testing instrument. Plunkett at ¶
29; Luke at ¶ 31. See Massie at ¶ 16. Instead, the admission of BAC test results turns on
substantial compliance with ODH regulations. Id.{¶ 23} In Luke, the Tenth District found that the trial court erred when it suppressed
BAC results. In suppressing the test results, the trial court reasoned that pursuant to its
gatekeeping role in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786 (1993), the results were inadmissible because they were not sufficiently reliable due to
the malfunctioning of the testing instrument. Id. at ¶ 9. The Tenth District reversed the trial
court and found that BAC results could not be suppressed because the machine
"malfunctioned or was otherwise not in good working order at the time of the defendant's test
* * *." Id. at ¶ 28.
{¶ 24} In so holding, the court reasoned that Vega's prohibition against attacking the
reliability of testing instruments includes barring challenges to the admissibility of BAC results
because the instrument was not functioning properly. Id. at ¶ 22, 28. In support of this
position, the court cited several Ohio Supreme Court cases which noted that "[t]he
admissibility of test results to establish alcoholic concentration under R.C. 4511.19 turns on
substantial compliance with ODH regulations." Id. at ¶ 23, quoting Defiance v. Kretz, 60 Ohio
St.3d 1, 3 (1991). See State v. French, 72 Ohio St.3d 446, 451; State v. Plummer, 22 Ohio
St.3d 292 (1986). Thus, "in the absence of any evidence that [ODH] regulations had not been
followed, the test result was admissible, and the possible malfunctioning of the machine on
the date of the defendant's test was irrelevant to admissibility." Luke at ¶ 28. This court
agreed with this proposition in Plunkett, 12th Dist. No. CA2001-01-012, 2008-Ohio-1014, ¶
29.
{¶ 25} Recently, the Eleventh District has issued a series of opinions discussing the
ways a trial court can suppress BAC results. State v. Miller, 11th Dist. No. 2012-P-0032,
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2012-Ohio-5585; State v. Rouse, 11th Dist. No. CA2012-P-0030, 2012-Ohio-5584; State v.
Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583. In Miller, the court acknowledged that
Vega prohibits defendants from attacking the general reliability of testing instruments. Miller
at ¶ 25-26. Additionally, the court reasoned that pursuant to Vega, test results can be
suppressed upon a showing of noncompliance with ODH regulations or evidence that the
operator of the testing instrument was not qualified. Miller at ¶ 31. These findings are in line
with this district's view. Plunkett at ¶ 29. However, the court went on to state that:
[i]n addition to attacks on the specific performance of a particular
breath test in an individual defendant's case [during trial], 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
reliability in a motion to suppress, as opposed to general
assertions that the State failed to prove its reliability, which is
prohibited under Vega. (Emphasis added.)
Miller at ¶ 32.
{¶ 26} The court concluded that Vega does not circumvent the trial court's role as
gatekeeper of the evidence because "a trial court still retains its authority and responsibility to
regulate the admission of test results and to evaluate specific challenges to the Intoxilyzer's
reliability." Id. at ¶ 33. Therefore, the Eleventh District held that there are three ways for a
defendant to challenge the admissibility of BAC test results. In a motion to suppress, the
defendant may argue: (1) ODH regulations were not followed, (2) the operator of the BAC
instrument was not qualified, or (3) the BAC machine is not reliable because of specific
reasons. Miller at ¶ 33.
{¶ 27} We decline to follow the Eleventh District's approach in allowing defendants to
challenge the admissibility of a BAC test based on the unreliability of the specific machine.
As noted above, Vega held that R.C. 4511.19 has replaced common law foundational
evidence for the admissibility of BAC results by statute and legislatively determined that
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these results are reliable. Allowing defendants to challenge the admission of BAC test
results because of "specific issues" related to unreliability undercuts the legislative
determination that BAC results, properly conducted, are reliable. We are also concerned
regarding the wisdom in dividing reliability arguments into "specific" and "general" challenges.
There is a narrow distinction between these challenges that might lead to a slippery slope of
specific challenges to breath testing instruments that ultimately test what the Ohio General
Assembly has already determined, namely, the general reliability of these instruments.
{¶ 28} Therefore, we interpret Vega to allow a defendant to challenge the admissibility
of his BAC test results by arguing that, (1) ODH regulations were not followed, or (2) the
operator of the BAC instrument was not qualified. However, a defendant may not challenge
the admission of his BAC test based on specific issues that question the testing instrument's
reliability. We note that although trial courts cannot suppress test results based on the
unreliability of the machine, defendants are free to challenge the reliability of the specific
testing procedure. Defendants "may endeavor to show something went wrong with his test
and that, as a consequence, the result was at variance with what the approved testing
process should have produced." Luke at ¶ 26, quoting Columbus v. Day, 24 Ohio App.3d
173, 174 (10th Dist.1985). However, these challenges go to the weight of the breath test
results rather than its admissibility.
{¶ 29} During the suppression hearing, Dugan attempted to show that the Intoxilyzer
8000 was not reliable because of the discrepancy between the number of sample attempts
recorded by the ODH website document and the number of breath samples Officer Lopez
observed Dugan perform. In suppressing Dugan's BAC results, the trial court noted the
inconsistency between Officer Lopez's testimony, the Subject Test Report, and the ODH
document. Additionally, the court found that Martin's testimony did not explain this
inconsistency. Thus, the court suppressed the BAC results because "the instrument that Ms.
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Dugan blew into on the night of her arrest appeared to be flawed * * *." The court did not
address whether any ODH regulation was violated. Consequently, to the extent that the trial
court suppressed Dugan's test results based on evidence that the Intoxilyzer was unreliable,
the court erred. Dugan's concerns over the reliability of her test results because of the
discrepancy between the ODH report, the Subject Test Report, and the observations of
Officer Lopez could be raised at trial and will affect the weight to be given the test results.
{¶ 30} Thus, because admission of BAC results turns on substantial compliance with
ODH regulations, this court's next inquiry is whether any ODH regulation was violated.
Dugan argues that the state failed to show that it has a system in place to retain breath test
results for not less than three years in accordance with Ohio Adm.Code 3701-53-01(A).
Additionally, Dugan argues that the state failed to establish that a dry gas control was
performed before and after each time she blew into the Intoxilyzer in accordance with Ohio
Adm. Code 3701-53-04(B).
{¶ 31} Pursuant to Crim.R. 47, a motion in a criminal proceeding "shall state with
particularity the grounds upon which it is made and shall set forth the relief or order sought."
In order to be entitled to a hearing on a motion to suppress evidence, a defendant "must
state the motion's legal and factual bases with sufficient particularity to place the prosecutor
and the court on notice of the issues to be decided." Plunkett, 12th Dist. No. CA2007-01-
012, 2008-Ohio-1014 at ¶ 10, quoting State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus.
{¶ 32} Once a defendant satisfies this initial burden and thereby places the prosecutor
and the court on sufficient notice of the issues to be determined at the suppression hearing,
the burden of proof shifts to the state. City of Xenia v. Wallace, 37 Ohio St.3d 216, 220
(1988). When a defendant disputes the validity of a BAC test, the state has the burden to
show that the test was administered in substantial compliance with ODH regulations.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372 at ¶ 24. Substantial compliance is limited to
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excusing only deviations from the regulations that are "clearly de minimis," i.e., irregularities
amounting to "minimal procedural deviations." Id. at ¶ 34. Once the state has satisfied this
burden and created a presumption of admissibility, the burden shifts to the defendant to rebut
that presumption by demonstrating that he was prejudiced by anything less than strict
compliance. Id. at ¶ 24.
{¶ 33} However, the extent of the state's burden to show substantial compliance
depends upon the level of specificity with which the defendant challenges the legality of the
BAC test. When a defendant files a motion to suppress that provides factual bases specific
to the defendant's case in support of his or her claims that a particular ODH regulation was
not followed, the state must show substantial compliance with that ODH regulation. State v.
Deutsch, 12th Dist. No. CA2008-03-035, 2008-Ohio-5658, ¶ 11. However, "[w]hen the
language in the motion to suppress raises only general claims, even though accompanied by
specific administrative code subsections, then there is only a slight burden on the state to
show, in general terms, compliance with the health regulations." State v. Jimenez, 12th Dist.
No. CA2006-01-005, 2007-Ohio-1658, ¶ 25.
{¶ 34} In order to raise the slight burden imposed upon the state by a general motion
to suppress, a defendant must provide some factual basis in support of a claim that a
particular ODH regulation was not followed. This court has suggested two methods for
gathering facts in order to support such a claim. The first method to obtain facts to support a
claim is during cross-examination at the suppression hearing. State v. Embry, 12th Dist. No.
CA2003-11-110, 2004-Ohio-6324, ¶ 27. "A defendant who files a boilerplate motion with a
bare minimum factual basis will need to engage in cross-examination if he wishes to require
the state to respond more than generally to the issues raised in the motion." Id. Additionally,
"merely asserting during cross-examination that the possibility exists that a very specific
aspect of the regulation was not followed, without a factual basis to support the assertion, will
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not increase the burden on the state." Id. The second method is "to obtain a specific factual
basis that will increase the burden on the state to respond is by conducting formal discovery."
Id. at ¶ 28.
{¶ 35} We will begin by determining whether the state showed substantial compliance
with Ohio Adm.Code 3701-52-01(A). Ohio Adm.Code 3701-52-01(A) requires the state to
retain breath test records for not less than three years. Initially, we note that the state's
burden to show substantial compliance was slight because Dugan did not assert specific
facts in her motion to suppress to show that the state does not retain breath test results for at
least three years. One portion of Dugan's motion stated that "[t]he individual administering
[Dugan's] test for drugs and/or alcohol did not conduct the test in accordance with the time
limitation and regulations of the State of Ohio in R.C. 4511.19(D) and the [ODH] governing
such testing and/or analysis, as set forth in OAC 3701-52-01, 02, 03, 04, 05, 06, 07, & 08 * *
*." (Emphasis added.) Other than mentioning Ohio Adm.Code 3701-52-01 in this long list of
alleged violations, Dugan's motion did not assert any other specific claims that ODH fails to
retain breath test results for three years.
{¶ 36} Although Dugan's motion to suppress did not raise the state's burden, the
state's burden can also be raised through cross-examination. At the suppression hearing,
Martin testified that all the records from the Intoxilyzer are uploaded to the ODH website.
She stated that the Intoxilyzer communicates with the ODH website and police can view the
details of each subject test that was performed on the Intoxilyzer. On cross, defense counsel
asked Martin whether there was any way to verify that every test result recorded by the
Intoxilyzer has been uploaded to the ODH website. Martin responded by stating that there
has been no failure of uploads from the instrument.
{¶ 37} We find that Dugan did not raise the state's burden of establishing substantial
compliance through cross-examination. While Dugan questioned Martin regarding the state's
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retention of records policy, Dugan was unable to obtain specific facts which showed that the
regulation was not followed. As noted above, "merely asserting during cross-examination
that the possibility exists that a very specific aspect of the regulation was not followed,
without a factual basis to support the assertion, will not increase the burden on the state."
Embry at ¶ 27. Further, while Dugan engaged in discovery, she was also unable to produce
any facts to show that the state did not retain the records.
{¶ 38} The state met its slight burden of establishing substantial compliance with Ohio
Adm.Code 3701-52-01(A). The state provided evidence that all records from the Intoxilyzer
are uploaded to the ODH website. Although the state did not discuss the procedures for
retaining these records, Martin stated that there has been no failures of uploads in the
instrument. Thus, this testimony met the state's slight burden of establishing substantial
compliance with Ohio Adm.Code 3701-52-01(A).
{¶ 39} Next, we address whether the state substantially complied with Ohio Adm.Code
3701-53-04(B). Dugan's motion contained specific language which alleged, "[t]he state failed
to perform a dry gas control before and after every subject test as required by OAC 3701-53-
04(B)." Because Dugan's motion specifically challenged the validity of the test results due to
the state's alleged failure to perform a dry gas control before and after every subject test, the
state had the burden to show that the test was administered in substantial compliance with
the regulations by the ODH.
{¶ 40} Ohio Adm.Code 3701-53-04 specifies the calibration requirements for the
Intoxilyzer 8000. The relevant portion of Ohio Adm.Code 3701-53-04(B) states,
"[i]nstruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code
shall automatically perform a dry gas control test before and after every subject test * * *."
The Intoxilyzer 8000 is listed as an approved testing device under Ohio Adm.Code 3701-53-
02(A)(3). This court has recently interpreted this administrative code section to require a dry
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gas control before a person's first blow into a breath testing machine and then a dry gas
control after the last blow into the machine. State v. Kormos, 12th Dist. No. CA2011-08-059,
2012-Ohio-3128. In so holding, this court interpreted the phrase "subject test" to refer to
each individual subject tested and not each separate time the subject blows into the
instrument. Id. at ¶ 20. Therefore, the state was not required to prove that a dry gas control
was performed before and after every separate blow, but instead before and after every
individual tested. Id.
{¶ 41} At the suppression hearing, Officer Lopez testified that the Intoxilyzer
performed a dry gas control before Dugan's first sample and after her second sample.
Additionally, the Subject Test Report which recorded the calibration procedure used during
Dugan's breath test, was introduced into evidence. The relevant portions of the Subject Test
Report stated:
Test Time
***
Dry Gas Control 03:41
***
Subject Sample 1 03:42
***
Subject Sample 2 03:46
***
Dry Gas Control 03:47
***
{¶ 42} We find that the state established that it substantially complied with Ohio Adm.
Code 3701-53-04(B). Contrary to appellant's argument, the state is not required to prove that
a dry gas test was performed before and after every separate sample. Instead, a dry gas
control must only be conducted before and after each subject is tested. The evidence
established that a dry gas control was performed before and after Dugan's breath test.
{¶ 43} The state's sole assignment of error is sustained. The trial court's decision
suppressing Dugan's Intoxilyzer 8000 BAC test results is reversed. This cause is remanded
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for further proceedings consistent with this opinion.
S. POWELL, P.J., concurs.
RINGLAND, J., concurs separately.
RINGLAND, J., concurring separately.
{¶ 44} Based on the specific issues presented to us in this case I concur, particularly
with the interpretation of State v. Vega, 12 Ohio St.3d 185 (1984). However, I realize that
Vega, decided in 1984, may need to be revisited, and I urge the Ohio Supreme Court to do
so.
{¶ 45} The commonly accepted interpretation of the Vega opinion is that once a
breathalyzer machine is approved or deemed reliable by the Ohio Department of Health
(ODH), courts are prohibited from receiving evidence disputing the reliability of the machine.
R.C. 4511.19(D) permits courts to admit evidence on the concentration of alcohol in the
defendant's breath, but that this bodily substance shall be analyzed in accordance with
methods approved by the ODH. R.C. 4511.19(D) has therefore been interpreted to allow
courts to receive evidence regarding the specific testing procedure and qualifications of the
operator, but requires that courts accept the general reliability of ODH approved machines.
{¶ 46} The Intoxilyzer is the only scientific machine or process that does not require a
judicial finding of reliability through expert evidence. Normally, once such finding is made
through direct and cross-examination of experts, the court's finding may be taken notice of by
courts under its jurisdiction per Evid.R. 205. The Ohio legislature has seen fit to usurp this
judicial process by delegating this judicial power to the executive branch, i.e., the ODH. This
provision of R.C. 4511.19(D) avoids the evidence-taking process of experts through direct
and cross-examination, judicial fact finding and eventual judicial notice as set forth under the
Rules of Evidence and as provided for under the Modern Courts Amendment to Article IV of
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Butler CA2012-04-081
the Ohio Constitution. This is contrary to the courts' gatekeeping responsibility as set forth in
Daubert and its Ohio progeny. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786 (1993). E.g., Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998); State v.
Williams, 12th Dist. No. CA2007-04-087, 2008 Ohio 3729. Therefore, this usurpation may be
constitutionally suspect. However, these issues were not raised below and hopefully will be
resolved in another time and in another case.
{¶ 47} Constitutional issues aside, I am aware that courts have struggled with the
interpretation of Vega. E.g., State v. Miller, 11th Dist. No. 2012-P-0032, 2012-Ohio-5585;
State v. Reid, et al, Circleville M.C. Nos. TRC1100716, TRC1007193, and TRC1005965
(June 2, 2011). Courts have opined that much has changed since 1984. Per se violations of
R.C. 4511.19 were added, often making the Intoxilyzer test the only evidence supporting a
conviction. Different Intoxilyzer machines with arguably more complicated processes have
subsequently been approved by the ODH. The United States and Ohio Supreme Courts, as
discussed above, have become more sensitive to the courts' gatekeeping responsibilities.
The Ohio Supreme Court has taken notice and ruled on the legislature's encroachment on
courts' authority. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. Finally, few
safeguards are available to the litigant should the current available process for determining
reliability that is utilized by the ODH be flawed or suspect. Huey, The OACDL Challenges the
Intoxilyzer 8000 and the Department of Health Responds: Is this what they mean by Putting
Lipstick on a Pig? The OACDL Vindicator (Summer 2012) 9. These events signal a need for
the Ohio Supreme Court to resolve these issues and confusion.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.
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