State v. NicholsState v. Nichols
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This appeal presents three issues: (1) Does the repeal of a penal statute, when accompanied by enactment of a modified statute, terminate a pending prosecution under the old statute? (2) Does the speedy trial provision of
The pertinent facts are undisputed. Nichols was arrested on April 14, 1982, and charged with driving under the influence in violation of
At common law, the repeal of a penal statute terminated any prosecution that had not reached a final judgment, unless the Legislature provided a saving clause in the repealing act. 1A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 23.36 (4th ed. 1985). The purpose of the common law rule was to avoid punishing a defendant for conduct no longer deemed culpable. Sekt v. Justice’s Court of San Rafael Township, 26 Cal.2d 297, 159 P.2d 17 (1945). This rule has been recognized in Idaho. See Moore v. Village of Ashton, 36 Idaho 485, 211 P. 1082 (1922).
In the present case, Nichols argues that the common law rule should be applied because the Legislature provided no saving clause in either of the 1983 repealing acts. He further contends that this alleged oversight could not be remedied by Idaho’s general saving statute,
As noted, the Legislature did not simply repeal
The carry-forward theory has been summarized as follows:
[WJhen an existing statute is reenacted by a later statute in substantially the same terms, a repeal by implication takes *826 place only for those provisions which are omitted from reenactment. The unchanged provisions which are repeated in the new enactment are construed as having been continuously in force. [Footnotes omitted.]
SINGER, supra, § 23.38, at 406. This theory treats a repeal accompanied by enactment of a new statute as the functional equivalent of an amendment to the old statute. There is no interruption of the rights and liabilities flowing from those provisions which are substantially retained in the new statute. E.g., In re Welfare of Fredericksen, 25 Wash.App. 726, 610 P.2d 371 (1980). The Idaho Supreme Court has endorsed this theory. See Ellenwood v. Cramer, 75 Idaho 338, 272 P.2d 702 (1954).
In the case at hand we acknowledge, as we must, that the statutory scheme enacted in 1983 was profoundly different in many respects from
But there also were fundamental points of similarity. Both the new statute and its predecessor made it unlawful to operate, or to be in actual physical control of, a motor vehicle on a public road or on other property open to public use, while under the influence of alcohol. Under both statutes, guilt could be proven by a valid test showing a blood-alcohol level of .10% or higher — such as Nichols’ test result of .16%. Under the new statute such evidence, if found to be accurate, would establish guilt per se. Under the old statute such evidence, if found to be accurate, triggered a presumption of intoxication leading to a determination of guilt, unless rebutted by other evidence. In either event, a valid test showing a blood-alcohol level of .10% or higher would be sufficient to sustain a conviction.
We hold, as far as this case is concerned, that the essential elements of the crime and the permissible methods of proof under the old statute were substantially retained in the new version of
This exception also is supported by the legislative intent theory. When a repeal is accompanied by substantial reenactment of the statute, “it will be presumed that the legislature did not intend that there should be a remission of crimes not reduced to final judgment.” State v. Armstrong, 238 Kan. 559, 712 P.2d 1258, 1263 (1986). The Idaho Supreme Court has recognized this theory, applying it to a case where a defendant convicted for a second time of driving under the influence attempted unsuccessfully to vacate his first conviction because the statute had been repealed and reenacted in the meantime. State v. Webb, 76 Idaho 162, 279 P.2d 634 (1955). The Court noted, “[I]t is evident that there was no intent to wipe clean the slates of those convicted during the effectiveness of the former statute.” Id. at 167, 279 P.2d at 637, quoting State v. Patterson, 220 S.C. 269, 66 S.E.2d 875, 876 (1951).
Here, the Legislature’s intent to preserve the culpability of driving while intoxicated is not merely presumed; it has been expressed by the Legislature itself. The first section of the bill enacting the new version of
We next consider Nichols’ contention that he was denied a speedy trial under
The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:
2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the indictment or information is filed with the court.
It is undisputed that Nichols was tried more than six months after the original complaint was filed against him. However, that fact is of no consequence under
Finally, we turn to Nichols’ argument that his blood-alcohol level was determined by a method other than a “chemical test” authorized by
Any person who operates a motor vehicle or motorcycle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine or saliva for the purpose of determining the alcoholic content of his blood____
[Emphasis added.]
At that time
Nichols’ blood-alcohol level was determined by analyzing his breath sample with an instrument known as the “Intoximeter 3000.” At trial, the state’s forensic expert testified that this machine ascertains the alcohol content of a substance by exposing it to infrared light energy and measuring the rate at which the energy is absorbed by the alcohol. Nichols objected to admitting the Intoximeter result into evidence, arguing that the machine employed principles of physics and did not perform a “chemical” test as contemplated by statute. We disagree.
There is no bright line marking a boundary where physics ends and chemistry begins. Indeed, much of what we commonly call “chemistry” can be explained by apply *828 ing laws of “physics” to the interactions of energy and matter on a molecular or atomic scale. Neither does the term “chemical test” impart a narrow meaning. It may refer to a test conducted with chemicals, but we think it also embraces any test that determines the chemical composition of a given substance. That is precisely what the Intoximeter 3000 does. It ascertains an individual’s blood-alcohol content by measuring the extent to which his breath is composed of alcohol.
We conclude that the result obtained from the Intoximeter 3000 in this case was the product of a “chemical test” within the meaning of
The district court’s decision on appeal, upholding the judgment of conviction entered in the magistrate division, is affirmed.
WALTERS, C.J., and HUNTLEY, J. Pro Tem., concur.
Notes
. At times not pertinent here, the Legislature subsequently made additional changes in
. In 1983
The repeal of any law creating a criminal offense does not constitute a bar to the indictment and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment and punishment is expressly declared in the repealing act. [Emphasis added.] In 1984, this statute was amended by changing the word “indictment” to “prosecution,” arguably broadening the saving provision to include misdemeanors as well as felonies. The amending bill contained an emergency clause purporting to make it effective “from and after July 1, 1983.” 1984 Idaho Sess.Laws ch. 24, § 2, p. 46. The state has argued that this amendment madesection 67-513 applicable retroactively to the instant case. The state also has urged that the amendment merely “clarified” the original intent of the statute. For reasons set forth in today‘s opinion, we find it unnecessary to rule on either of these arguments.
. After
Conrad
was decided, ■ and after the present case had gone to judgment,
. In 1983,