STATE of Idaho, Plaintiff-Respondent, v. Jeffrey W. CREA, Defendant-Appellant.
No. 18371.
Supreme Court of Idaho, Moscow, October 1990 Term.
March 1, 1991.
806 P.2d 445
From those findings the magistrate concluded that the maintenance award to Mrs. McNelis should be permanent rather than fixed in duration. The magistrate court‘s opinion clearly reflects that it was concerned about Mrs. McNelis’ medical history, which suggested to him that she probably will never be able to retrain herself because of her bouts with cancer, which have sapped her physical and emotional strength, and the effect they have had on her stamina and ability to complete a retraining course. Viewing the record as a whole, we hold that the magistrate‘s findings were adequately supported by the record in this case, and thus we affirm the magistrate‘s award of permanent alimony. Hentges v. Hentges, 115 Idaho 192, 195, 765 P.2d 1094, 1097 (1988) (“Where, as here, the reasons clearly appear from the record, a failure to state specific reasons [supporting an unequal community property distribution] may be disregarded on appeal.“).
The district court‘s decision is vacated, and the magistrate‘s decision is affirmed. Costs to appellant. No attorney fees allowed.
BISTLINE, JOHNSON, BOYLE and MCDEVITT, JJ., concur.
Jim Jones, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.
BOYLE, Justice.
In this criminal case involving a conditional plea of guilty and conviction of driving under the influence, we are called upon to determine whether the district court erred in denying defendant Jeffrey Crea‘s motion to suppress the results of an alcohol breath test.
Crea was arrested by officers of the Lewiston Police Department on December 29, 1988, and charged with driving under the influence in violation of
Crea filed a motion to suppress and a motion in limine to prevent admission of the results of the breath test into evidence at trial on the grounds that the Intoximeter is not scientifically accurate nor generally accepted as a testing device for detecting ethyl alcohol and blood alcohol content, and because the State of Idaho had previously deactivated the Taguchi sensor cell component part of the Intoximeter.1 An evidentiary hearing was held on Crea‘s motions in which extensive expert testimony was submitted.
Following the district court‘s denial of his motions, Crea entered a conditional plea of guilty pursuant to
I.
SCOPE OF JUDICIAL REVIEW
With respect to admission of evidence, the trial court has broad discretion and its judgment in the fact finding role will only be disturbed on appeal when there has been a clear abuse of discretion. State v. Giles, 115 Idaho 984, 772 P.2d 191 (1989); State v. Crook, 98 Idaho 383, 565 P.2d 576 (1977); State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971).
At the trial court level the trier of fact, in this case the district court judge, is the arbiter of conflicting evidence. Ran-kin v. Rankin, 107 Idaho 621, 691 P.2d 1236 (1984).
II.
INTOXIMETER 3000 APPROVED AS ALCOHOL TESTING INSTRUMENT
The Intoximeter 3000 is not a stranger to the appellate courts of this and other states, and has been the source of considerable appellate review. State v. Wilson, 116 Idaho 771, 780 P.2d 93 (1989); State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct. App.1987); State v. Nichols, 110 Idaho 823, 718 P.2d 1261 (Ct.App.1986); People v. Jones, 118 Misc.2d 687, 461 N.Y.S.2d 962 (1983).
In State v. Wilson, 116 Idaho 771, 780 P.2d 93 (1989), we held that the Intoximeter 3000 with the Taguchi cell deactivated was not required to be certified by the Department of Health and Welfare, and that it was approved by the Department for use as a direct testing instrument. In Wilson we held that any deficiencies in the accuracy of the measurement of ethyl alcohol that are occasioned by the lack of a Taguchi cell may be attacked by cross-examination or by independent evidence. 116 Idaho at 774, 780 P.2d at 96. The record before us clearly demonstrates that the effectiveness of the Intoximeter 3000 with a deactivated Taguchi sensor cell was subject to extensive cross-examination and independent evidence as contemplated in State v. Wilson. Our review of the record satisfies us that the district court properly considered the issues as being evidentiary in nature and Crea was permitted to attack any deficiencies in the accuracy of the Intoximeter through cross-examination and by the direct evidence of his expert witness.
In State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct.App.1987), the Court of Appeals observed that scientific acceptance of the Intoximeter 3000 is well established in Idaho and many other jurisdictions, including Alaska, Georgia, New Hampshire, New York, Tennessee, Wisconsin, Wyoming, and country-wide acceptance in England. Id., at 112 Idaho 375, 732 P.2d at 344; see also State v. Nichols, 110 Idaho 823, 718 P.2d 1261 (Ct.App.1986). We recognize and agree that the Intoximeter 3000 has gained scientific acceptance in Idaho as noted in State v. Wilson, and in numerous other jurisdictions as observed in State v. Hartwig, however, use of test results from the Intoximeter 3000 in the courts of this state remains subject to proper foundation and evidence being presented.
III.
TRIAL COURT‘S FINDINGS SUPPORTED BY THE EVIDENCE
In the hearing on Crea‘s motions, the district court considered extensive evidence from both parties as to the reliability and accuracy of the Intoximeter 3000 with a deactivated Taguchi sensor cell. The State presented the testimony of an expert from the Forensic Services Bureau of the Department of Law Enforcement in support of the Intoximeter‘s reliability and accuracy with the Taguchi cell disconnected. Crea presented the expert testimony of a chemistry professor from the University of
After considering all the evidence and testimony presented at the hearing, the district court denied Crea‘s motions and stated:
The evidence before the court after review and after going over the testimony is overwhelming. I conclude that the removal of the Taguchi cell does not affect the scientific reliability of the Intoximeter 3000. The results of that test will be admissible.
Although there are cases from other jurisdictions supporting Crea‘s legal position, People v. Jones, 118 Misc.2d 687, 461 N.Y.S.2d 962 (1983), the issue presented to us on appeal in the instant case is essentially an evidentiary question. Crea urges us to adopt the holding of People v. Jones and to require the more restrictive test for admissibility of scientifically derived evidence as pronounced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). As noted in People v. Jones, the New York courts have consistently employed the Frye v. United States criterion to determine the admissibility of scientifically derived evidence.2 The Frye criterion requires an analysis of whether the process is “sufficiently established to have gained general acceptance in the particular field in which it belongs?” 461 N.Y.S.2d at 967, citing 293 F. at 1014. We decline to adopt the Frye criterion as the basis for admission of scientifically derived evidence as relates to the issues presented in this appeal.
As such, we have reviewed the record before us to determine whether the district court erred in admitting the evidence, and whether there is substantial evidence to support its factual findings.
A. Admissibility of Testimony and Evidence
Crea asserts that the district court erred in admitting certain expert opinion evidence as to the scientific acceptance and reliability of the Intoximeter 3000. We disagree.
The Idaho Rules of Evidence allow admission of the evidence presented to the district court in the hearing on Crea‘s motions.
The admissibility of expert opinion testimony and the admission of scientific evidence are governed by the Idaho Rules of Evidence and the decisions of this Court. In IHC Hosp. v. Board of Commrs., 108 Idaho 136, 697 P.2d 1150 (1985), we held that a witness must be properly qualified as an expert prior to giving expert testimony. Whether a witness is sufficiently qualified as an expert is a matter largely within the sound discretion of the district court. Sidwell v. William Prym, Inc., 112 Idaho 76, 730 P.2d 996 (1986). The admissibility of expert opinion testimony is discretionary with the trial court and will not be abused absent a showing of an abuse of discretion. Id.
Our review of the record demonstrates that adequate foundation was laid to qualify the expert witnesses and their opinions were properly admitted into evidence by
Our review of the record demonstrates that the district court, in addition to hearing the testimony of the experts, inquired in an attempt to clarify his understanding of the evidence. After hearing and weighing the evidence the district court found that the evidence was “overwhelming” in support of the reliability and accuracy of the Intoximeter 3000 test results.
Our independent review of the record, although containing conflicting evidence, satisfies us that the district court‘s finding is supported by the record and that there is substantial competent evidence to support the factual findings. The district court‘s findings are not clearly erroneous and we accept those findings and conclusions.
The district court did not err in denying Crea‘s motion to suppress or his motion in limine. Accordingly, the judgment of conviction is affirmed. Costs to respondent.
BAKES, C.J., and JOHNSON and MCDEVITT, JJ. concur.
BISTLINE, Justice, dissenting.
Once again this Court is asked to evaluate the reliability of the Intoximeter 3000 with its Taguchi cell removed. The majority points to State v. Wilson, 116 Idaho 771, 780 P.2d 93 (1989), and State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct.App.1987), to support its view that the Intoximeter 3000 has gained scientific acceptance in Idaho. In a separate opinion in Wilson, I discussed some of the problems with using the Intoximeter 3000 without the Taguchi cell, and rather than repeat those points any interested reader is directed to that opinion. Wilson, 116 Idaho at 774, 780 P.2d at 96 (Bistline, J. dissenting). It is also worth noting that the breath test used in the Hartwig case was obtained by use of the Intoximeter 3000 before the Taguchi cell was removed; therefore, the Hartwig opinion is no longer relevant.
The importance of the removal of the Taguchi cell from the Intoximeter 3000 was well illustrated in People v. Jones, 118 Misc.2d 687, 461 N.Y.S.2d 962 (1983):
The Intoximeter 3000 is a breath-testing device which utilizes infrared energy and electrical current to detect the presence of ethyl alcohol (ethanol) in the breath of a driver.
. . . .
The device gives a reading of the amount of interfering substance in the subject‘s breath by comparing the amount of infrared energy striking the detector after the two beams pass through the chambers.
. . . .
At this point, it is impossible to conclude that the absorbing substance is ethyl alcohol, because in addition to ethyl alcohol, there are other substances which absorb radiation at 3.39 microns.
In order to enable the Intoximeter 3000 to give a specific reading for ethyl alcohol, another device is necessary. Thus, the Intoximeter 3000, in addition to its infrared analysis of breath based on the Beer-Lambert Law of Absorption, also contains a semi-conductor (a Taguchi sensor) by which it is able to distinguish ethyl alcohol from other substances which absorb infrared radiation in the area of 3.39 microns.
. . . .
If infrared analysis were the only process incorporated in the Intoximeter 3000, the results of the test would be inadmissable because the test would lack specificity in light of the numerous substances in addition to ethyl alcohol, which absorb infrared energy at the wavelength of 3.39 microns.
By removing the Taguchi cell from the Intoximeter 3000 the state has created seri-
BOYLE, Justice.