STATE of Idaho, Plaintiff-Respondent, v. George Joseph BESAW, Jr., Defendant-Appellant.
No. 39874.
Court of Appeals of Idaho.
June 21, 2013.
Review Denied Sept. 4, 2013.
306 P.3d 219
C. Docket No. 39049
Quintana contends the district court in this case also abused its discretion by imposing a unified sentence of fourteen years, with three years determinate, upon her guilty plea to grand theft. Specifically, she argues that although this district court properly took into account her mental health issues, it did not sufficiently consider other mitigating factors present in the case. She references the same mitigating factors (besides her mental health) discussed in regard to Case No. 39156 and contends that, because the district court did not mention those factors in imposing sentence, the court lent them insufficient consideration and, therefore, imposed an excessive sentence.
When imposing sentence, the district court indicated it reviewed the PSI report, and considered the objectives of sentencing. The district court was also aware of Quintana‘s actions in regard to the forged doctor‘s note, her initial failure to appear for sentencing in Case No. 39156, her continued disruptive behavior in jail, and the large number of residential burglaries, thefts from vehicles, and mail thefts she committed in the companion case. The State also pointed out at the sentencing hearing that after fleeing to New Mexico, Quintana called the investigating detective in the case, repeatedly arguing with the detective as to whether she could even be charged for stealing the credit card and using it without permission, telling the detective, “I‘m going to get away with this.” Quintana also told investigators that she and her co-defendant intended to “go out like Bonnie and Clyde if they got caught.” Ultimately, with this information in hand, the district court determined a one-year rider program would not impose the structure required and opted to imposed a three-year determinate sentence with eleven years indeterminate, indicating it would have imposed five years determinate if not for Quintana‘s mental health history. The court indicated the lengthy indeterminate portion was necessary in case Quintana continued her behavior, so she would not be able to create new victims. Given the nature of the crime, Quintana‘s background, and her continued exhibition of deceitfulness, Quintana fails to carry her burden to show this sentence is excessive under any reasonable view of the facts.
III.
CONCLUSION
Quintana has not shown the sentences imposed in either case were excessive under any reasonable view of the facts. In addition, the district court did not err in denying her Rule 35 motion for a reduction of her sentences in Case No. 39156. Quintana‘s judgments of conviction and sentences, and the district court‘s order denying her Rule 35 motion, are affirmed.
Judge GRATTON and Judge MELANSON concur.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.
LANSING, Judge.
George Joseph Besaw, Jr. appeals from his conviction of misdemeanor driving under the influence with an excessive alcohol concentration of .20 or above. Besaw contends that the magistrate court erred in its pretrial rulings concerning the admissibility of field sobriety tests and the breath alcohol concentration test. We affirm.
I.
BACKGROUND
In the early morning hours of January 16, 2011, an Idaho State Police trooper stopped a vehicle driven by Besaw for failing to signal and failing to maintain its lane of travel. As the trooper spoke with Besaw, he detected the odor of an alcoholic beverage coming from the vehicle and observed that Besaw‘s eyes were bloodshot. The trooper conducted sobriety tests and concluded that Besaw was intoxicated. Besaw was arrested for driving under the influence, and the trooper administered a breath alcohol concentration (BAC) test on a portable device, the Lifeloc-FC20. The test results indicated breath alcohol concentrations of .219 and .201.
Besaw was charged with misdemeanor driving under the influence with an excessive alcohol concentration of .20 or above,
II.
STANDARD OF REVIEW
On review of a decision of the district court, rendered in its appellate capacity, we examine the magistrate division record to determine whether there is substantial and competent evidence to support the magistrate‘s findings of fact and whether the magistrate‘s conclusions of law follow from those findings. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008).
III.
ANALYSIS
A. The Field Sobriety Tests
Three field sobriety tests were administered to Besaw: a horizontal gaze nystagmus or “HGN” test, a one-leg stand test, and a walk-and-turn test. By his pretrial motion concerning the admissibility of the tests, Besaw sought:
to prohibit the introduction of any field sobriety tests until the State lays a proper foundation to show: that such tests are reliable in establishing the effects of alcohol on the human body; that the tests were conducted in the correct fashion; that said tests were approved by the proper governmental agency. Defendant requests a Parkinson or I.R.E., Rule 702 hearing.
In his argument to the magistrate court, Besaw contended that Idaho appellate courts had not decided the admissibility of field sobriety test evidence under
The magistrate court disagreed. Based upon two Idaho Supreme Court opinions, State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991), and State v. Gleason, 123 Idaho 62, 844 P.2d 691 (1992), the court concluded that the Idaho Supreme Court had already decided that with a proper foundation showing the tester‘s expertise in conducting the test, HGN evidence was reliable and admissible under
1. HGN test
Besaw first asserts that the trooper‘s testimony about the HGN test ought not to have been admitted without further foundation to establish the reliability of that test as an indicator of intoxication. An explanation of his argument must begin with the Idaho Supreme Court‘s decision in Garrett. There the nature of HGN was explained:
“Nystagmus” is a term used to describe an involuntary jerking of the eyeball, a condition that may be aggravated by the effect of chemical depressants on the central nervous system. An inability of the eyes to maintain visual fixation as they are turned from side to side is known as “horizontal gaze nystagmus.”
Id. at 880-81, 811 P.2d at 490-91 (citations omitted). The Court then described the test as follows:
The test only requires the objective observations of the person administering the test. No further interpretation of results or procedures is required. If the subject‘s eyes do exhibit nystagmus, that is an indication that the subject may be under the influence of alcohol.
Garrett, 119 Idaho at 881, 811 P.2d at 491. The Court held, based upon authority from other jurisdictions, that the reliability of HGN evidence was “generally accepted in the scientific community” and thereby satisfied the standard for admission of scientific evidence under the standard of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which had long been followed in Idaho. The Supreme Court therefore held that the HGN evidence was admissible under
The Supreme Court again addressed the admissibility of HGN testimony in Gleason. The Court there abandoned use of the Frye standard to determine the admissibility of scientific evidence, instead directing that “the appropriate test for measuring the scientific reliability of evidence is
On appeal, Besaw contends that because the Idaho Supreme Court held in Garrett that HGN testimony was admissible under
The magistrate was correct. In Gleason, our Supreme Court held that HGN testimony is admissible as reliable under
2. Remaining field sobriety tests
Besaw also challenges the magistrate‘s admission of the remaining field sobriety tests administered to Besaw: the one-leg stand test and a walk-and-turn test. The magistrate held that Rule 702 did not apply to these tests because the Idaho Supreme Court in Garrett said that the tests were not scientific. Besaw claims error, basing his argument on Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999), where the United States Supreme Court said that the foundational requirements for scientific testimony laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-89 (1993), extend not just to scientific knowledge but also to technical and “other specialized” knowledge under the corresponding federal rule of evidence. Besaw presumes that the trooper‘s testimony regarding the one-leg stand test and the walk-and-turn test is based on technical or specialized knowledge, and therefore asserts that the magistrate‘s ruling was incomplete in failing to address whether this testimony was sufficiently reliable to be admissible under
Besaw is incorrect. A witness who testifies as an expert regarding one matter may also serve as a fact witness about other matters that do not require special expertise and therefore are not governed by Rule 702. The trooper‘s observations of Besaw‘s performance on the one-leg stand test and walk-and-turn test fall within the latter category. This was noted in Garrett, where the Court distinguished the HGN test from other field sobriety tests that called for observation of Garrett‘s balance. The Court stated, “[T]he HGN test is a different type of test from such sobriety tests as balancing on one leg or walking in a straight line because it relies upon science for its legitimacy rather than upon a fact based in common knowledge.” Garrett, 119 Idaho at 881, 811 P.2d at 491. Thus, the Garrett Court recognized that an officer‘s testimony that a defendant lost his balance while attempting to stand on one leg or walk a straight line is not governed by Rule 702 because it is not scientific, technical, or specialized in nature. Instead, it is fact testimony, which a jury can evaluate as indicative of intoxication or not, using its common knowledge. The magistrate court correctly declined to require an evidentiary foundation showing the scientific reliability of those field sobriety tests as a condition for admission of
B. The Lifeloc-FC20 Test
Besaw‘s remaining three issues relate to the “standard operating procedures” adopted by the Idaho State Police to set procedures and standards for breath testing equipment and administration of breath tests. Pursuant to
1. The fifteen-minute monitoring period
Besaw contends that his breath test was inadmissible because the trooper did not adequately monitor him for fifteen minutes before administering the test as required by Standard Operating Procedure 6.1 (11/1/10), which states:
Prior to evidentiary breath alcohol testing, the subject/individual should be monitored for at least fifteen (15) minutes. Any material which absorbs/adsorbs or traps alcohol should be removed from the mouth prior to the start of the 15 minute waiting period. During the monitoring period the subject/individual should not be allowed to smoke, drink, eat, or belch/burp/vomit/regurgitate.
The purpose of the monitoring period is “to rule out the possibility that alcohol or other substances have been introduced into the subject‘s mouth from the outside or by belching or regurgitation.” Bennett v. State, Dep‘t of Transp., 147 Idaho 141, 144, 206 P.3d 505, 508 (Ct.App.2009); State v. Carson, 133 Idaho 451, 453, 988 P.2d 225, 227 (Ct.App.1999). To satisfy the observation requirement, the level of surveillance “must be such as could reasonably be expected to accomplish” that purpose. Bennett, 147 Idaho at 144, 206 P.3d at 508. “This foundational standard ordinarily will be met if the officer stays in close physical proximity to the test subject so that the officer‘s senses of sight, smell and hearing can be employed.” State v. DeFranco, 143 Idaho 335, 338, 144 P.3d 40, 43 (Ct.App.2006). However, the monitoring officer is not required to stare fixedly at the subject. “So long as the officer is continually in [a] position to use his senses, not just sight, to determine that the defendant did not belch, burp or vomit during the [monitoring] period,” the observation complies with the rule. Bennett, 147 Idaho at 144, 206 P.3d at 508. However, if the officer‘s ability to supplement his visual observation of the subject with his other senses is substantially impaired by such factors as noise, the officer‘s own hearing impairment, or the officer‘s distance from or position facing away from the subject during the monitoring period, the monitoring requirement may not be satisfied. Carson, 133 Idaho at 453, 988 P.2d at 227.
When a decision on a motion addressing the admissibility of evidence is challenged, we defer to the trial court‘s findings of fact supported by substantial and competent evidence. State v. Reese, 132 Idaho 652, 653, 978 P.2d 212, 213 (1999). The power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Decker, 152 Idaho 142, 145, 267 P.3d 729, 732 (Ct.App.2011); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct.App.1999).
Based upon the trooper‘s testimony and a video of the encounter, the magistrate found that the trooper “stood approximately two to three feet away from the Defendant, facing him at all times so that he could observe him for fifteen (15) minutes before administering breath testing.” Besaw contended, however, that the trooper‘s vision and attention was fatally distracted when he looked toward and spoke to three individuals who approached him during the monitoring period. Addressing these concerns, the magistrate credited the trooper‘s testimony and found that “he did not take his focus off of the defendant and did not move away even though he was briefly distracted by a Lewiston police officer, again by a passenger in the defendant‘s vehicle, and finally by an individual arriving to pick up another passenger.” The magistrate further found that the trooper put “himself in a physical position that allowed him to utilize not only his sight but all his senses to accomplish the purposes of the monitoring period,” and concluded that the trooper‘s “attention was not impeded to such a degree that his various senses were diverted from the defendant.”
These findings are supported by the evidence. The trooper testified that during the monitoring period Besaw was seated in the backseat of the patrol car with the back door open, and the officer stood, bent over, watching him. The officer acknowledged that he spoke briefly with another officer, Besaw‘s passenger who emerged from Besaw‘s vehicle during the monitoring period, and the passenger‘s wife. However, the trooper also said his head was roughly two or three feet from Besaw‘s head as he conducted the observation, and that the trooper never turned his back or moved away during the observation period. The video camera that recorded the stop was not pointed toward Besaw or the officer during the monitoring period, but the audio portion confirms the trooper‘s testimony that he had only brief verbal exchanges with the three people who approached him. From this evidence, the magistrate court could reasonably find that the trooper‘s monitoring was such “as could reasonably be expected to accomplish the purpose of the requirement.” Bennett, 147 Idaho at 144, 206 P.3d at 508. This Court will not reweigh the evidence and substitute our judgment for that of the trial court. Substantial and competent evidence in the record supports the magistrate court‘s finding that the trooper adequately monitored Besaw for the requisite time period.
2. Performance verification
Besaw next contends that the magistrate erred in concluding that the “performance verification” of the Lifeloc FC20 instrument used to test his breath was properly conducted according to the standards in the SOPs and manual, and that the test results therefore were admissible at his trial pursuant to
There are three SOP provisions implicated by the issue presented:
5.1.3 A performance verification of the Alco-Sensor and Lifeloc FC20 instruments using a 0.08 or 0.20 performance verification solution must be performed within 24 hours, before or after an evidentiary test to be approved for evidentiary use. Multiple breath alcohol tests may be covered by a single performance verification. Reference 5.1.4.1 for clarification on the use of the 0.20 solution in this capacity.
....
5.1.4 A 0.20 performance verification should be run and results logged once per
calendar month and replaced with fresh solution approximately every 25 verifications or until it reaches its expiration date, whichever comes first. NOTE: The 0.20 performance verification was implemented for the sole purpose of supporting the instruments’ results for an 18-8004C charge. Failure to timely perform a 0.20 performance verification will not invalidate tests performed that yield results at other levels or in charges other than 18-8004C.
5.1.4.1 The 0.20 performance verification satisfies the requirement for performance verification within 24 hours, before or after an evidentiary test at any level. The 0.20 performance verification solution should not be used routinely for this purpose.
Here, it is uncontested that the officer conducted a performance evaluation on the Lifeloc machine used in this case within twenty-four hours after Besaw‘s test using a .08 solution and that the samples fell within the acceptable range. It is also uncontested that a successful .20 performance verification was done within a month of Besaw‘s test. Besaw contends, however, that because his test returned BAC samples of .219 and .201 and he was charged with excessive driving under the influence with a BAC of .20 or more, the SOPs required that the performance verification in his case had to be performed with a .20 solution. The magistrate rejected this contention, holding that the plain language of the rules allowed either solution level to be used for the twenty-four-hour verification. On intermediate appeal, the district court agreed with the magistrate. Besaw continues with his claim of error in this appeal.
The interpretation of an administrative rule is an issue of law over which we exercise free review, Mason v. Donnelly Club, 135 Idaho 581, 586, 21 P.3d 903, 908 (2001), and we interpret the ISP‘s standard operating procedures as we would administrative rules. Wheeler v. Idaho Transp. Dep‘t, 148 Idaho 378, 384, 223 P.3d 761, 767 (Ct.App.2009). When interpreting a rule, we will construe it as a whole to give effect to the intent of the promulgating entity. See George W. Watkins Family v. Messenger, 118 Idaho 537, 539-40, 797 P.2d 1385, 1387-88 (1990), abrogated on other grounds by Verska v. Saint Alphonsus Reg‘l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011); Zener v. Velde, 135 Idaho 352, 355, 17 P.3d 296, 299 (Ct.App.2000). Interpretation of a rule should begin, therefore, with an examination of its literal words. Mason, 135 Idaho at 586, 21 P.3d at 908. The language of the rule should be given its plain, obvious, and rational meaning. Id.
Here, we agree with the magistrate‘s determination. The plain language of SOP 5.1.3 allows a twenty-four-hour verification to be performed with either a 0.08 or a 0.20 performance verification solution. SOP 5.1.4.1 confirms that either a 0.08 or a 0.20 performance verification solution may be used for the twenty-four-hour verification because it recognizes that the monthly “0.20 performance verification satisfies the requirement for performance verification within 24 hours before or after an evidentiary test at any level,” but also states that the “0.20 performance verification solution should not be used routinely for this purpose.” The “note” to rule SOP 5.1.4 which states that the “0.20 performance verification was implemented for the sole purpose of supporting the instruments’ results for an 18-8004C charge” does not change this directive as it refers to the rule‘s recommendation that a “0.20 performance verification should be run and results logged once per calendar month.”
In summary, the SOP provisions simply do not require a .20 solution performance verification within 24 hours in order to support prosecution of an
3. Whether the ISP has abdicated its duty to adopt standards to ensure the reliability of BAC test results
Besaw‘s final claim is that his breath tests should not have been admitted into evidence because he has demonstrated “a lack of standards in breath testing as required by
With respect to the ISP‘s responsibility to adopt standards that will ensure test accuracy, Besaw refers to this Court‘s comments in State v. Bell, 115 Idaho 36, 764 P.2d 113 (Ct.App.1988), discussing a prior version of
The Legislature has enacted a statutory scheme which allows an expedient method for admitting a blood-alcohol test result into evidence without the need for some expert testimony.
....
When this proposed statute was presented to the Legislature the statement of purpose accompanying the legislation explained that expert witness testimony was an unnecessary burden on the state. Such testimony, if used merely to establish a foundation, provided superfluous verification of a test procedure which the Legislature believed to produce an “extremely reliable” result.
Inherent in this statutory scheme ... is an awareness by the Legislature of the need for uniform test procedures. An “extremely reliable” test result can only be the product of a test procedure which from previous use is known to be capable of producing an accurate result. This benefit is best provided by strict adherence to a uniform procedure.
.... The adoption of the particular test procedure merely recognizes the validity and reliability of that particular accepted test. It must still be established at trial that those procedures which ensure the reliability and in turn the accuracy of the test have been met. Absent such a showing, the expedient scheme adopted by the Legislature fails to guarantee the admission of reliable evidence.
Bell, 115 Idaho at 39, 764 P.2d at 116.
As the foundation for his argument that the ISP has not complied with its statutory duty to adopt breath testing standards, Besaw relies upon the dissenting opinion in Wheeler, 148 Idaho 378, 223 P.3d 761. That dissent criticized the majority‘s interpretation of the word “should” in the ISP‘s breath testing standards as prescribing something that is optional rather than mandatory because, when so interpreted, the standards would not comply with the ISP‘s statutory responsibility to prescribe “requirements” for evidentiary testing and calibration of testing equipment under
As the legislative statements of purpose indicate, this statutory scheme is intended to streamline trials and reduce the costs of prosecution while at the same time assuring the accuracy of the tests. It can meet this objective and can accord with due process and demands of fundamental fairness only if there actually exist promulgated standards for administration of BAC tests that ensure accurate and reliable test results. In other words, the quid pro quo for the convenience and economy of admitting test results pursuant to
I.C. § 18-8004(4) is that the ISP must promulgate ascertainable standards that, if complied with, will yield accurate BAC testing.
Id. at 387, 223 P.3d at 770. Besaw asserts that after Wheeler, the ISP has continued to change a number of former “must” testing requirements to “should” recommendations within the SOPs, not because the procedures are inessential to test accuracy but to eliminate hurdles to admissibility of the test results.
To support his argument, Besaw relies upon a number of emails to, from, and between ISP employees, various county prosecutors, and other persons, most of whom are affiliated with law enforcement or prosecuto
It is problematical for Besaw‘s argument that the analysis from Wheeler upon which he relies was in a dissent. By definition, it did not command agreement from a majority of this Court. Specifically, the majority opinion did not adopt the dissent‘s view that nonmandatory standards would be tantamount to no standards at all. It is the majority opinion in Wheeler that constitutes precedent to which this Court must adhere under principles of stare decisis. See State v. Grant, 154 Idaho 281, 287, 297 P.3d 244, 250 (2013); State v. Forbes, 152 Idaho 849, 852-53, 275 P.3d 864, 867-68 (2012); State v. Card, 121 Idaho 425, 440-44, 825 P.2d 1081, 1096-1100 (1991) (McDevitt, J. concurring).
Although Besaw has exposed some troubling information about the manner in which the SOPs for breath testing have been developed or amended, we are not persuaded that he has demonstrated that the SOP procedures are incapable of yielding accurate tests. Besaw contends that the SOPs are so strewn with “weasel words” and “wiggle room” that they lack scientific basis and permit testing procedures that will not yield accurate tests, but there is no evidence in the record to support that conclusion. To be sure, the emails and memos to and from ISP personnel are disturbing, for some comments and suggestions lacked any apparent regard for the way proposed changes could affect the validity of the tests. As Besaw alleges, some participants seemed to view the ISP‘s task as being to thwart all possible defense challenges to the admission of breath tests rather than to adopt standards that will maximize the accuracy of tests upon which individuals may be convicted of serious crimes and deprived of their liberty. Further, it appears that there was a conscious avoidance of any opportunity for suggestions or critiques from persons outside the law enforcement community.5 While we do not endorse or condone such an approach to the ISP‘s statutorily-assigned duty to define breath testing procedures and standards, we cannot say that the emails in and of themselves, or any other evidence in the record, establishes that the test procedures actually authorized by the SOPs and applied in Besaw‘s case are incapable of producing reliable tests.6 Therefore, we find no error in the magistrate court‘s denial of Besaw‘s motion to exclude the test results from evidence.
IV.
CONCLUSION
Besaw has not demonstrated error by the magistrate court in denying his pretrial motions for the exclusion of evidence. Therefore, the district court‘s appellate decision
Judge GRATTON and Judge MELANSON concur.