*1 Hansen, Robert B. Atty. Gen., Bruce M. Hale, Gen., Atty. Asst. City, Salt Lake Utah, Jefferey State of Interest of Whitney Hammond, D. Uintah Atty., Co. OAKS, M. a minor. Vernal, for respondent. No. 14896. Supreme Court of Utah. ELLETT, Chief Justice: Nov. In the Juvenile Court defendant was con-
victed of driving a motor vehicle while un- der the influence of intoxicating liquor (Section 41-6-44, U.C.A.1953).1 He now appeals.
The arresting officer first noticed defend- ant driving a shortly vehicle before mid- night apparently at an high rate speed. pursued The officer for a dis- tance until he longer could no see him. Later he observed a parked at the road, side of the that was the same automo- bile previously he had Upon seen. contact- ing defendant, the officer noted the odor of an alcoholic beverage on his breath. Ac- cording officer, to the defendant’s face was flushed, eyes his were “kinda” good. was not Defendant was arrested a field sobriety test. Again, according to the offi- cer, defendant poorly did when directed to touch his nose with his finger and when he walked the white line. Defendant was tak- en police Vernal, station in Utah, where the arresting gave officer him a breathalyzer test.
The foregoing facts were adduced at the trial. The state then proceeded question Officer concerning Horton the manner in which he administered the breathalyzer test and to lay foundation for the introduction into evidence of Exhibits (Exhibit 1 and 2. concerned the administration of the indicated the results of the test.)
Defense counsel
object
did not
evidence concerning
the result of the
but in his brief
appeal, appellant
on
claims
McRae,
Robert M.
City,
Salt Lake
error in
for
that the officer had failed to fill in
Jefferey Oaks.
the blanks
on Exhibit
identifying by
55-10-105(2) provides
adjudica-
Sec.
crimé,
that an
except
involving
conviction of a
in cases
by juvenile
tion
court shall not be deemed a
traffic violations.
*2
can
and
fied technician
administer
ampoule
and
used
number
testify
findings.
The omission
was
then
Patrol officer
Highway
A
the test.
or of
stipu-
counsel
of the number of the machine
Defense
as a witness.
called
ampoule
and
on the test card would not make
repair
was
lated that he
expert
incompetent.
The ser-
testimony
machines.
analyze
machine had
even if the
testified that a certain
This would be true
geant
Further,
destroyed.
station over the
or
as to the
been located in
Vernal
were lost
however,
being
know if the
he did not
not
on the
years;
number
card,
March
1976. He
was
raised at trial
machine was there on
the matter
not
and,
therefore,
machine
as
he had checked
cannot be claimed
an
testified that
25, 1976,
fact,
In
May
appeal.3
on March 4 and
error on this
when the
# 2979
evidence,
both times.
counsel for
working properly
found it to be
tests were offered into
no
ma-
court to withhold the
was
other
Mr.
knowledge,
To his
there
Oaks asked
during
station
until after the cross-examination
ruling
in the Vernal
chine located
ad-
end of all the testimo-
The court
the witness. At the
dates.
aforementioned
moved to dismiss “on
ny,
into evidence.
counsel
mitted the exhibits
defense
to make a
content of .11
that the state failed
grounds
blood alcohol
2 indicated a
_no
reply
The court’s
was
evidence.”
percent.2
as follows:
from the
Aside
con-
the Court
When
THE COURT:
was sufficient
the evidence before
evidence,
you add to
the total
that
siders
evidence was
the verdict. Such
justify
man at
young
it
appearance
as follows:
tests, coupled with
physical
the time and
di-
the officer was
(1) The attention of
which,
I received in
way,
the tests
of the ex-
appellant
because
rected
evidence.
driv-
speed
appellant
at which
was
cessive
also
you
Did
receive
MR. MCRAE:
ing.
report
and referral?
flushed, his
The face of
was
(2)
appellant
Yes. Motion denied.
THE COURT:
and his
was
eyes were
is the find-
what
MR. MCRAE: And
poor.
ing of the Court?
perform
unable to
(3) Appellant was
guilty.
Found
THE COURT:
tests;
to-wit: he could not
sobriety
field
any objection
never
made
There was
coins,
line,
or touch
straight
pick up
walk a
tests;
by to the result shown
trial
difficulty.
finger
with his
without
his nose
hence,
of error
any question
there cannot be
appellant
that
(4) Two officers testified
appeal.4
on this
regard
raised
drinking.
had been
No
are
is affirmed.
costs
judgment
The
smoke screen about
The
awarded.
validity.
is without
breathalyzer machine
only
was the
one used
The machine
HALL, JJ.,
CROCKETT,
concur.
area,
it
whether the
and made no difference
MAUGHAN,
(dissenting).
Justice
on the test
its number
technician recorded
Court,
was
the Juvenile
so
it. Also the fact
In
card or did not
record
while
a motor vehicle
driving
on March 4
convicted of
the machine was accurate
intoxicating liquor
the influence of
May 25 leads to the fair conclusion
under
and on
41-6-44,
1953).1
ap-
(Section
He
quali-
24. A
U.C.A.
was
on March
that it
accurate
id.
U.C.A., 1953,
This section makes
41-6-44.2.
to drive a motor vehicle when the
unlawful
55-10-105(2)
adjudica-
provides that an
1. Sec.
body weight
or
alcoholic content
.10%
juvenile
by a
not be deemed a
tion
court shall
greater.
involving
crime, except in cases
of a
conviction
Hamilton,
County
et al.
Salt Lake
Sewer-
violations.
traffic
etc.,
age,
15 Utah 2d
The court in permitted point time, of officer Horton to and to qualifi- show the continue with his testimony. He testified cations of the technicians and others 24,1976.) The presently autumn. he had attended a breathalyzer school con- attended a ducted (The situated in the Vernal the Highway refresher course the test was officer guessed conducted March Patrol. on machine, previous He station, had admissible. testimony on expert bility of the test called as witnesses to [*] [*] [*] and to read its establish [*] subject [*] the is readily results, relia- ‡ one he stip- used. Defense counsel Variations of respect strictness with ulated the officer performed speci- had foundation testimony may often be ex- fied eight steps in administering the test. plained by the type of administered, nometer, reading can be from is obtained content of alcoholic blood as where the breath, calibrated in which has been analysis gauge of by an ascertained in percentage terms of alcohol than procedure is a more technical which blood. the blood itself analysis an step scientific an extra
former involves State,3 ob- In Lauderdale v. rationalization. critical to the results of served it is description: the test solution. thereby ple, the therefrom, phuric acid piece until lungs through pass bubbles breath amount then principle the alcoholic piston through one breath. low hue to that words, the same it. This air timeters of alveolar of its dichromate. a of the blood. amount blows State solution To measure [******] changes operate through into the machine original yellow v. Baker2 the machine traps greater will be the loss through the causing the solution to lose some in the alveolar of alcohol in a breath and determine of chemical solution constant standard he has is then air that has been blown extracts the sulphuric only it. The machine is This content the the a test the test amount of alcohol As provides the test alcohol By causing forced, machine, potassium dichromate ais machine emptied analyzes test 2100 to 1. the ratio between the ampoule containing ampoule containing the breath of is based color. last acid solution through mouth- breath from alcoholic solution, the alcohol, 52½ cubic to acetic by weight blood and breath sam- a the so as the test in potassium a sample has upon following a designed designed lungs In other light color the sul- content greater subject sample if a acid, any, cen- into of yel- and the of of in a less tions in the Another tained tend to make the ter of the tain have been met: which would be Furthermore, of must the courts have can be test that that eter incorrect. light going through of each of the that evidence. To ing proper proportions; manner.5 a the correct kind and the had (2) order drink within approximately a than .025 before the assure breathalyzer that produce nothing in the at admitted into aspect critical state adduce certain foundational per precisely three glass and that he In the the checked and falsely the result of the ampoules. cent of State glass following operator and in chemicals (1) time fifteen minutes in his each (4) of prima facie evidence that reliability of the milliliters, required reading *4 a importance That elevated admitted three milliliters be v. cause diffusion of 33V3 of potassium mouth at Baker4 it, had taken ampoule. (3) that conducting the test be evidence, the state test within a compounded If four a in per cent variance. employed and these on the of as a breathalyzer the volume the final proper level of alcohol. any into is requirements prior to tak- prerequisite the time of dichromate, the must the galvanom- test result no food or Imperfec- evidence, the working were charac- subject proper would result range were test; held con- con- was test the by of require- its of no The court in discussion (but through which breath evidence showed said the state’s the amount of ment passed), has sample the manufac- ampoules shipped from pho- were in be measured change color can a con- each batch had to a turer in batches and which are connected toelectric cells number, stamped on each which was balancing galva- trol galvanometer. By (1960). supra. P.2d 809 note 2. 56 Wash.2d 355 Alaska, pp. P.2d. 809-810 of 355 P.2d particular batch. admission every ampoule of evidence consti- received, spot Everytime a new batch prejudicial tuted error. ampoules at least six
check was made of ruled: that batch. The court WILKINS, J., concurs in the dissenting ampoules the sealed are MAUGHAN, The fact that opinion of J. the manufacturer
delivered machine for exclusive use in fact plus
such machine additional of is,
regular checking ampoules spot prima sufficient facie opinion,
in our
proof the chemicals in one am- are mixed
poule proper kind and proper proportion.6 reliability To assure the results of Calvin dba Johnson JOHNSON Collection evi- admitted into Agency, Appellant, Plaintiff and dence, there has been basic adherence to requirements the foundational of Baker in FIREBRAND, INC., al., et Defendants jurisdictions. many Frequently, there has Respondents. legislation assigning been state to the state toxicologist board of health or state No. 15056. duty training certifying the breatha- *5 Supreme Court of Utah. lyzer operators testing certifying periodically component chemicals and 16, Nov. machines.7 case,
In the instant failure of the
testing officer to record the number of the ampoules
machine and was not a mere tech-
nicality. impossible His action made require-
establish two of foundational necessary permit
ments the result of the evidence, viz., into checked and in
proper working order at the time of con-
ducting the and that the chemicals
employed were of the correct kind and com-
pounded in proper proportions. Under circumstances,
such the reliability of the established,
test result could not be
court admitting erred result into evi-
dence. the court ruled that Since defend-
ant’s conviction was based on the total find-
ings court, set forth and one of the
findings was the result of the breathalyzer
P.2d;
Miller,
at-p.
City
City
Tucson,
Ariz.App.
811 of 355
also see State v.
Court
15
N.D.,
Rines,
(1966);
Paul,
(1971);