State v. Webb

[Cite as State v. Webb, 2013-Ohio-541.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2012-P-0052
- vs - :
IAN R. WEBB, :
Defendant-Appellee. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2011 TRC 12784.
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).
Nate N. Malek, 29025 Bolingbrook Road, Cleveland, OH 44124 (For Defendant-
Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, the state of Ohio, appeals from the judgment of the Portage
County Municipal Court, Ravenna Division, granting the motion to suppress the results
of the Intoxilyzer 8000 breath test of appellee, Ian R. Webb. At issue is whether the
state is required to first produce evidence of a breath test machine’s general reliability
as a precondition for admitting breath test results. For the reasons discussed below, we
reverse the decision of the trial court and remand the matter for further proceedings.
{¶2} On October 1, 2011, appellee was stopped for speeding. The officer
noticed an odor of alcohol on appellee’s breath as he spoke. The officer initiated field
sobriety tests, which appellee failed. Appellee was subsequently arrested for operating
a vehicle while intoxicated (“OVI”), in violation of R.C 4511.19(A)(1)(a), and cited for
speeding, in violation of 4511.21(B)(3). Appellee was taken to the station where a
breath test revealed his blood-alcohol concentration was .128. Appellee was later cited
for OVI, in violation of R.C. 4511.19(A)(1)(d).
{¶3} Appellee filed a motion to suppress and a supplement to his motion
seeking to exclude the results of his breath tests based upon the general unreliability of
the breath-testing instrumentation, the Intoxilyzer 8000. The matter came on for
hearing. At the hearing, the state, relying on State v. Vega, 12 Ohio St.3d 185 (1984),
maintained appellee could not challenge the general scientific reliability of the Intoxilyzer
8000. The state asserted Vega upheld the statutory presumption of reliability accorded
the breath test machines, including the Intoxilyzer 8000. In light of this precedent, the
state refused to produce any witnesses regarding the general reliability of the device.
{¶4} Because the state declined to go forward, the court granted appellee’s
motion. In support of its decision, the court relied on its recent decision in State v.
Johnson, Portage M.C. No. R2011TRC4090. In Johnson, the court required the state
to produce evidence of the general reliability of the Intoxilyzer 8000. When the state
declined to go forward, pursuant to the Ohio Supreme Court’s decision in Vega, the
court granted the defendant’s motion to suppress. After entering its final order, the trial
court stayed the proceedings and this appeal followed.
{¶5} The state asserts the following assignment of error for our consideration:
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{¶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} Under this assignment of error, the state asserts it is not required to
produce expert witnesses to convince the municipal court of the general scientific
reliability of the Intoxilyzer 8000 as a precondition for admissibility. The state observes
the General Assembly delegated this issue to the Ohio Director of Health under R.C.
3702.143 and R.C. 4511.19(D). Pursuant to this legislative scheme, once the Director
approves a device, it is presumptively admissible and a prosecutor is not required to
produce evidence of the machine’s general reliability. The state underscores this
delegation was upheld by the Supreme Court of Ohio in Vega, supra. The state
consequently maintains the court below erred in requiring it to produce evidence of the
Intoxilyzer 8000’s general reliability as a precursor to admitting the machine’s results.
According to the state, the trial court’s decision stands in violation of both statutory and
governing case law and therefore the judgment granting appellee’s motion must be
reversed and the matter remanded.
{¶8} In response, appellee asserts the decision to admit or exclude evidence is
a matter solely committed to the judiciary through the rules of evidence and the Ohio
Constitution. Moreover, appellee notes, R.C. 4911.19(D)(1)(b) specifically affords a trial
judge the discretion to admit or exclude evidence related to the concentration of alcohol
in a defendant’s breath1. Appellee further contends that Vega is inapplicable to this
case because current evidentiary procedures require courts to assess the reliability of
1. That section provides, in relevant part: “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 the chemical
analysis of the substance withdrawn within three hours of the time of violation.” (Emphasis added.)
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scientific evidence as a prerequisite to admissibility. See Evid.R. 702; Daubert v. Merrill
Dow Parmaceuticals, 509 U.S. 579 (1993). Given these points, appellee contends it is
inappropriate and contrary to established rules of evidence as well as statutory and
decisional law for a court to take judicial notice of a breath testing device’s reliability.
{¶9} With respect to appellee’s assertions, we first note that he did not advance
the foregoing arguments in his motion to the trial court. Rather, appellee’s
supplemental motion to suppress simply alleged the Intoxilyzer is “inaccurate and
unreliable as a breath testing mechanism.” Additionally, the trial court, in its judgment
entry, did not specifically utilize the legal positions advanced by appellee as
justifications for its decision. Rather, the trial court simply “upheld” its previous ruling in
Johnson, supra, as a basis for sustaining appellee’s motion. And, although the Johnson
ruling was premised generally upon the judge’s role as gatekeeper, it did not specifically
employ appellee’s particular legal rationale to support its decision to sustain Johnson’s
motion.
{¶10} With these points in mind, the legal theories asserted in appellee’s
response brief must be construed as additional foundations for affirming the trial court’s
ruling. The arguments shall therefore be considered as tantamount to cross
assignments of error pursuant to R.C. 2505.22. The arguments shall be addressed in a
consolidated fashion.
{¶11} Appellee contends the trial court’s role as gatekeeper requires the court to
adjudicate the reliability and ultimate admissibility of breath machine results. And, in
appellee’s view, the state cannot rely upon the Director of Health’s approval of a breath
test machine to usurp the judiciary’s role. Appellee further claims the ruling in Vega is
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inapplicable to this case because it does not prohibit a pretrial evidentiary hearing under
Evid.R. 104 to determine the relevancy and reliability of the evidence to determine
admissibility. Such a hearing, in appellee’s view, is required of Evid.R. 702 and all
scientific evidence post-Daubert.
{¶12} In Vega, the Supreme Court of Ohio acknowledged the deference that
must be accorded to the legislature’s delegation. The court emphasized:
{¶13} “[The judiciary must recognize] the necessity 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.” Id. at 188-189, quoting State v. Brockway, 2 Ohio App.3d
227, 232 (1981).
{¶14} In Vega, the court clearly endorsed the legislative delegation of R.C.
3701.143, and the rebuttable presumption of reliability. Moreover, and perhaps more
substantively significant, Vega specifically states that 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. Because the delegation and the rebuttable presumption do
not infringe upon the trial court’s ability to admit or exclude evidence, we find appellant’s
argument unpersuasive.
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{¶15} Moreover, Ohio Appellate Districts have addressed the specific issue
raised by appellee, i.e., whether the state is required to present expert testimony
regarding the reliability of breath testing instruments before their results are admissible.
In Dayton v. Futrell, 2d Dist. No. CA 8615, 1984 Ohio App. LEXIS 11631 (Oct. 26,
1984), the Second District answered this question in the negative, stating:
{¶16} The [Supreme Court in Vega] held that the reliability and
admissibility of [breath] tests * * * has been legislatively determined
and that the accused may not make a general attack upon the
reliability and validity of the breath testing instrument. The judiciary
must take notice that such tests, properly conducted, are reliable
irrespective of disagreements among experts and that the results of
such tests are admissible. Accordingly, judicial notice of this factor
dispenses with the necessity for expert testimony by the state in
chief for the efficiency of the intoxilyzer machine. Id. at *3-*4.
(Emphasis added.)
{¶17} More recently, the Tenth District, in State v. Luke, 10th Dist. No. 05FP-
371, 2006-Ohio-2306, rejected appellee’s argument. In Luke, the defendant filed a
motion to suppress the results of his BAC Datamaster breath test. In its entry granting
the defendant’s motion to suppress, the trial court explained that it was suppressing the
test result “pursuant to the court’s ‘gatekeeper’ function, pursuant to Daubert [, supra.]”
In holding that the trial court erred in applying Daubert in the context of the defendant’s
motion to suppress, the Tenth District stated:
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{¶18} [T]he General Assembly has legislatively provided for the
admission into evidence of alcohol test results, including breath
tests, from tests conducted upon those accused of violating R.C.
4511.19, so long as such tests were conducted in accordance with
procedures adopted by the Director of the Ohio Department of
Health.
{¶19} This legislative mandate for admissibility obviates the need for trial
courts to determine admissibility based upon reliability of the
processes and methods underlying the use of breath testing
machines. It follows, then, that because the Daubert inquiry
involves only determinations as to the reliability of the principles
and methods upon which a particular scientific test result is based,
the legislative mandate recognized in Vega forestalls the need for
any Daubert analysis in cases such as the present one. That is why
we agree with the holding of the Fifth Appellate District that,
pursuant to Vega, “an attack on the accuracy and credibility of
breath test devices in general is prohibited. Therefore, there is no
need to determine the reliability of the machine under a Daubert * *
* standard.” State v. Birkhold, 5th Dist. No. 01CA104, 2002-Ohio-
2464, ¶19. Luke, supra, at ¶23-24. (Emphasis added.)
{¶20} As discussed above, appellee’s argument that the Intoxilyzer 8000 is
unreliable was an attack on the general reliability of a director-approved breath-testing
instrument, which is prohibited by Vega. Given the general pronouncements in Vega as
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well as the ruling in Luke, we maintain a Daubert hearing is unnecessary as it pertains
to the general reliability of the Intoxilyzer 8000.
{¶21} For the above reasons, we decline to endorse the arguments asserted
under appellee’s cross-assignments of error.
{¶22} Turning to the state’s argument, the lower court sustained appellee’s
motion premised upon the state’s failure to produce evidence of the Intoxilyzer 8000’s
general reliability. Under Vega, once suitable methods for breath analysis are
established by the Director of Health, pursuant to the legislative directive, a statutory
presumption of reliability then attaches to the approved testing devices. “Administrative
rules enacted pursuant to a specific grant of legislative authority are to be given the
force and effect of law.” Doyle v. Ohio Bureau of Motor Vehicles, 51 Ohio St.3d 46(1990), paragraph one of the syllabus. Further, once the Director of Health has
promulgated regulations for breath testing instruments, they are to be given the force
and effect of law. State v. Yoder, 66 Ohio St.3d 515, 519, citing Doyle, supra. Thus,
Ohio Adm.Code 3701-52-02, which approved the Intoxilyzer 8000 as an evidential
breath testing instrument, has the force and effect of law.
{¶23} In the matter below, appellee filed a motion in limine, which was eventually
treated as a motion to suppress, which challenged the general reliability of the
Intoxilyzer 8000. Although the motion lacked any clear specificity as to what legal or
factual bases appellee was challenging, the court granted the motion because the state
failed to produce any evidence demonstrating the test results were reliable.
{¶24} First of all, as discussed above, Vega prohibits a “general attack on the
reliability * * * of a breath instrument.” (Emphasis added.) This holding, however,
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allows for a specific challenge to the reliability of the Intoxilyzer 8000. Here, appellee
generally asserted the Intoxilyzer 8000 is unreliable and inaccurate. He thus did not
present a specific challenge to the Intoxilyzer 8000, but rather, made a general attack.
{¶25} A motion to suppress must state its legal and factual basis with sufficient
particularity to put the prosecutor and the trial court on notice of the issues to be
decided. State v. Perl, 11th Dist. No. 2006-L-082, 2006-Ohio-6100, ¶15. In State v.
Shindler, 70 Ohio St.3d 54 (1994), syllabus, the Supreme Court of Ohio found that the
defendant’s motion to suppress was sufficient when it “stated with particularity the
statutes, regulations and constitutional amendments she alleged were violated, set forth
some underlying factual basis to warrant a hearing, and gave the prosecutor and court
sufficient notice of the basis of her challenge.” Here, appellee’s motion in limine
provided no legal or factual grounds in support of her challenge. Thus, the state had no
notice of any alleged specific defects of the Intoxilyzer 8000, making it virtually
impossible for the prosecutor to defend the motion.
{¶26} Notwithstanding this inherent defect and despite Vega’s ruling that an
accused may not make a general attack on the reliability of a breath-testing instrument,
the court sustained the motion. Neither party disputes the Intoxilyzer 8000 was used in
this case. And since the legislature determined that the Intoxilyzer 8000 is reliable, it
must be presumed the device is reliable. See State v. Yoder, 66 Ohio St.3d 515, 518
(“[I]n promulgating the regulation, it must be presumed that the Director of Health acted
upon adequate investigation * * *. We must defer to the department’s authority and we
may not substitute our judgment for that of the Director of Health.”) Given these points,
the state did not have the burden to produce evidence of the machine’s reliability as a
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predicate for presenting appellee’s breath-test results. To the contrary, because the
instrument is presumed to be a reliable breath-testing instrument, appellee had the
burden to produce evidence that the Intoxilyzer 8000 is not reliable.
{¶27} It is necessary to underscore that, even though a general attack on the
reliability of the Intoxilyzer 8000 is prohibited, the statutory presumption is nevertheless
rebuttable. The court in Vega stated that a defendant may still “‘notwithstanding the
presumption, [establish if he can, that ] he was not under the influence of alcohol at the
time of his arrest, or that there was something wrong with the test and the results were
erroneous.’” Id. at 189, quoting Erwin Defense of Drunk Driving Cases (3 Ed.1971) 26-
9, Section 26.03. Thus, upon filing a particularized motion to suppress that triggers the
statutory presumption, appellee is still entitled to go forward with evidence that the
machine is unreliable.
{¶28} With respect to a judgment granting a motion to suppress, an appellate
court reviews a court’s application of the law de novo. See e.g. State v. Holnapy, 194
Ohio App.3d 444, 2011-Ohio-2995, ¶28 (11th Dist.) By requiring the state to go forward
with evidence of the machine’s reliability, the trial court disregarded the legal prohibition
on general, unparticularized challenges in motions to suppress as well as the legislative
presumption of reliability concerning the Intoxilyzer 8000. The trial court therefore
erred, as a matter of law, in requiring the state to make this initial showing.
{¶29} We therefore conclude the trial court erred in requiring the state to
produce evidence of the Intoxilyzer 8000’s reliability and in granting appellee’s motion to
suppress; further, pursuant to these erroneous rulings, the trial court erred in excluding
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the results of appellee’s breath test with no evidence to overcome the presumptive
reliability of the Intoxilyzer 8000’s results.
{¶30} In light of Vega as well as the validity of the legislative presumption, once
the prosecution has demonstrated an approved breath-testing device was used, a
defendant may make specific challenges to the reliability of his or her breath test
results. In this case, it is undisputed that the Intoxilyzer 8000 is an approved device.
On remand, therefore, appellee is entitled, but has the burden of production, to
specifically challenge the results of his breath test.
{¶31} The state’s second assignment of error is well-taken.
{¶32} For the reasons discussed in this opinion, the judgment of the Portage
County Municipal Court, Ravenna Division, is reversed and the matter is remanded for
further proceedings.
TIMOTHY P. CANNON, P.J., concurs,
THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.
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THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.
{¶33} 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.
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{¶34} 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.
{¶35} 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.)
{¶36} 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 * * *.”
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Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107 (1971); State v. Suchevits,
138 Ohio App.3d 99, 102 (11th Dist. 1999).
{¶37} 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. 181 Ohio App.3d 519, 2009-Ohio-1191, ¶45 (5th Dist.); State v. Riley, 6th Dist. No.
WD-03-076, 2007-Ohio-879, ¶27 (expert testimony must be deemed reliable before it is
deemed admissible.); Saad v. Shimano American Corp., 2000 U.S. Dist. LEXIS 10974,
*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).
{¶38} Moreover, the determination of evidential reliability necessarily implicates
the defendant’s substantive due process rights.
{¶39} “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
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available.” State v. Small, 162 Ohio App.3d. 375, 2005-Ohio-3813, ¶11 (10th Dist.),
quoting Gutzwiller v. Fenik, 860 F. 2d. 1317, 1328 (6th Cir. 1989).
{¶40} 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, 463 U.S. 880, 931, fn. 10 (1983).
{¶41} 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, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary
(8 Ed.Rev.2004) 11.
{¶42} 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
to Vega and its progeny. Vega, 12 Ohio St.3d 185 (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.
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{¶43} 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.
{¶44} 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, 12 Ohio St. 3d 185, 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.
{¶45} 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
assertion that there was an abuse of discretion by the director in approving the breath
testing device at issue. Vega at 187, fn. 2. 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.
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{¶46} 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.) Vega at 186, quoting Westerville v. Cunningham, 15
Ohio St.2d 121, 128(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).
{¶47} 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, 1990 Ohio App. LEXIS 1339, *8 (April 5, 1990); Neil v. Hamilton
County, 87 Ohio App.3d 670; Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69, 70
(10th Dist. 1988).
{¶48} 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
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
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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.
{¶49} 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, 2010-Ohio-1900 at ¶67.
{¶50} 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.
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