State v. R. Counts, 2017 MT 13N

On Sept. 1, 2013, Ryan Counts was arrested for suspected DUI and submitted a breath sample on an Intoxilyzer 8000 showing a BAC of .201%.
Counts was convicted in Justice Court; he sought a de novo trial in District Court and moved to suppress the breath test results on Nov. 19, 2014.
At the suppression hearing, the sheriff produced the gas standard cylinder and testified it was the standard used for Counts’ test; no written documentation of which gas standard or its expiration was offered by the State.
Counts argued below that the State failed to establish which gas standard was used and whether it had expired, so the breath-test foundation was inadequate.
On Jan. 28, 2015 the District Court denied suppression; after a jury trial Counts was convicted of DUI per se and sentenced. Counts appealed, raising an additional argument that the Intoxilyzer was not properly field certified per the Senior Operator’s Manual and Administrative Rules.
The Supreme Court treated the appeal as a memorandum opinion, concluded Counts waived the new field‑certification argument because it was not raised below, and affirmed the denial of the suppression motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether State laid foundation for admitting breath-test results	State: sheriff’s testimony and production of gas standard suffice to establish foundation for the Intoxilyzer result	Counts: State failed to show which gas standard was used or whether it had expired, so foundation lacking	Court: District Court properly left credibility/weight to jury; foundation argument raised below was addressed and suppression denial not an abuse
Whether appellate argument that Intoxilyzer lacked proper field certification is reviewable	State: issue not preserved; should not be considered on appeal	Counts: argues field-certification defects (per Manual and Administrative Rules) render test inadmissible	Court: new field‑certification theory was not raised below and is waived; appellate court will not consider issues raised first on appeal

State v. Jenkins, 362 Mont. 481, 265 P.3d 643 (standard for abuse of discretion review)
State v. Frickey, 332 Mont. 255, 136 P.3d 558 (when discretion rests on legal question, review is for correct interpretation)
State v. Claassen, 367 Mont. 478, 291 P.3d 1176 (limits on expanding preserved issues on appeal; specificity required to preserve)
State v. Montgomery, 357 Mont. 348, 239 P.3d 929 (permitting supplementation of legal authority within scope of preserved theory)
State v. Martinez, 314 Mont. 434, 67 P.3d 207 (court will not address issues raised first on appeal; unfair to trial court)