*1
Respondent,
v.
and
MONTANA,
Plaintiff
STATE OF
Appellant.
and
O’BRIAN,
Defendant
JEFFREY
KEVIN
No. 88-414.
Submitted on Briefs Dec.
1988.
Decided Feb.
1989.
Rehearing
April
Denied
John Ask & for defendant and Racicot, Gen., Johnson, Gen., Atty. Atty. Marc He- Paul D. Asst. lena, Floyd Brower, Atty., Hig- County Gerry and M. gins, Deputy Atty., Roundup, respondent. plaintiff Opinion
MR. delivered the JUSTICE GULBRANDSON Court. (O’Brian) Jeffrey appeals
Defendant Court, Judicial District sentence entered the Fourteenth *2 County. upon an Intoxilizer test ad- Based the results of O’Brian, beyond guilty him a ministered to District Court found vehicle with a per driving reasonable of a se of doubt violation greater than affirm. blood alcohol concentration 0.10. We upon appeal The the District Court sole issue raised whether admitting erred in the results of. an Intoxilizer 5000 blood allegedly administered concentration test when the test was compliance requirements Rules with Administrative Montana?
Shortly after officer Woodrow Weitzel 2:00 a.m. on requested stopped lights. failing O’Briari for to dim The officer insurance, produce which O’Brian O’Brian to his driver’s license and produced difficulty. officer, The detected without talking him. strong while with odor alcohol on O’Brian’s breath so- requested to field Consequently, the officer O’Brian take several tests, briety and the including Nystagmus the Horizontal Gaze test test, placed one-legged Following test. these the officer stand driving O’Brain under arrest for under the influence of (DUI) An jail. him Intoxilizer and drove to the Musselshell jail. 5000 test was administered at the Weitzeil, operator Intoxilizer instru- Officer a trained ment The a calibration administered the test. officer first conducted through by passing a solution check of the instrument simulator grams of 0.10 instrument. solution had a known concentration vapor to this per five to of alcohol 210 liters of seven months content registered an alcohol calibration check. Intoxilizer through ran the solution of 0.060. The officer an blank re- from it and then vapor instrument all clear traces It quested the instrument. that O’Brian blow into 2:32 0.207 at a.m. O’Brian’s blood alcohol concentration at check with morning. The another calibration officer conducted registered an alcohol same simulator solution. The solution through again run during check. An air blast of 0.062 the second again This tested. second then O’Brian was instrument and test, registered a alco- first blood minutes after the three subsequently charged amended hol content of O’Brian was 0.187. complaint operating with a motor vehicle with an alcohol concentra- 61-8-406, tion of 0.10 or more violation of MCA. § O’Brian charge was tried on this in Justice Court on November Following a trail guilt, and without determination of the Jus- tice of the Peace charge dismissed the criminal inn the amended complaint jurisdiction. errors, Among for lack of other the Justice of the Peace arraigned found that O’Brian had not been on the charge per plea amended of DUI se and had not entered a to this charge prior county appealed to trial. The then this dismissal to the County. Fourteenth Judicial District Court of Musselshell April On arraigned the District Court O’Brian on the DUI per charge proceeded trial, se then nonjury objec- with a over tion jeopardy of double speedy and lack of a trial the defense trial, counsel. At the conclusion of the the court held that the Intox- ilizer 5000 test was administered in substantial state statutes and the Administrative Rules of Montana. The court adjudged then guilt, solely defendant based the results of the Intoxilizer 5000 driving with a blood alcohol content of greater 0.10 or violation of MCA. The court ordered pay fine, pay complete $100 for and an alcohol treat- program, ment *3 permanent and to surrender his driver’s license. appeals this and sentence. Appellant contends that Officer Weitzeil failed to administer the Intoxilizer compliance 5000 test in requirements with the of the Ad- ministrative Rules of require Montana. The Rules a calibration check plus to fall within a or range minus one-tenth of the known alcohol concentration guarantee of a reference solution to the instru- accuracy prior Yet, ment’s case, to admission of the test. the this Intoxilizer 5000 the simulator solution at 0.060 and 0.062 just prior to testing appellant. the These do not come required plus within the range or minus one-tenth of the known 0.10 Consequently, appellant concentration of the solution. the contends the test was not administered in with the Ad- Montana, ministrative accuracy Rules of the of the test results were questionable, and the court in admitting thus erred the Intoxilizer 5000 test results into evidence. outset,
At the charged we note that a criminal defendant with driving under any pro the influence of is indeed entitled to State v. safeguards cedural in the Administrative Rules of Montana. McDonald (1985), 340, 215 St.Rep. Mont. 697 P.2d procedural 419. safeguards Those which are relevant to this alleges were violated are found case and which the defendant 23.4.135(2), (1987): ARM
(2) department any breath-testing examine and evaluate shall may ap- department approval. its instrument submitted for prove following if criteria: the instrument the instrument meets
(b) capable analyzing a suitable reference The instrument sample, equilibrated known a reference solution of such analysis temperature. such The results of content at a known by plus range must fall within or minus one-tenth defined or reference solution such other limits alcohol concentration department set . . . in- requires only
This Administrative Rule that the Intoxilizer 5000 capable analyzing a reference simulator solution strument be require plus range. or within a minus one-tenth The Rule does routinely although ran calibration check before each prior testing such a check of each defendant. had
The Intoxilizer instrument used on the defendant requirements Rules to its satisfied the of the Administrative Newhouse, Expert at the use. witness William a forensic scientist Missoula, Department Laboratory Montana of Justice’s Crime arrest the instrument at the time of defendant’s testified that use in the officeon June had been installed Sheriffs time, using At a similar solution that a calibration check in a read with a known resulted permissible range of ing. reading This well within the one-tenth Additionally, accuracy. officer who administered the test on the properly of the Intoxilizer 5000 defendant was trained the use training. with such We test and conducted accordance hold at trial was sufficient to indicate evidence adduced proper working 1987 and to condition of the instrument on Expert legal sufficiency witness ensure the of the admitted evidence. necessary prior check is not Newhouse testified that a calibration in every of an Intoxilizer 5000 breath test to ensure sufficiently Rather, periodic strument. checks would Octo instrument. On guarantee proper condition *4 Stewart, Crime Joe forensic scientist with the ber another instru Missoula, just periodic check of the Lab conducted such a level registered the alcohol ment at issue this case. The Intoxilizer concentration with known 0.10 alcohol of a new simulator solution a 0.096,,0.098, 0.0987, separate 0.098, respectively, after four at and calibration checks. Each of these checks indicated the instrument properly working calibrating within the instrument’s re- quired range accuracy. Newhouse thus concluded:
“Again, based on our laboratory records at the and on records, I you, can tell my familiarity based on with this instrument years instruments, over four 65 other that I can tell that [with] measuring instrument was blood alcohol content on breath test ac- curately May 1987.”
Further, testimony sufficiently explained at trial the reason for the low May calibration checks on 1987 and the lack of effect such readings low would appellant’s have had on the testified, breath tests. As Newhouse the low readings calibration and 0.062 on general 1987 were due to a decrease the alcohol concentration of the simulator solution because of its re- peated use over the period. four to five month The Crime Lab instructed all operating the Intoxilizer change 5000 to simulator solution prevent once a month to this decrease the solu- tion’s concentration, but the officers failed to do so. Conse- quently, many calibration May 26, checks such as the ones run on proved essentially worthless because of the unknown alcohol concentration of However, the simulator solution. these invalid cali- bration checks had bearing no validity on the of the defendant’s for, breath test by Newhouse, as stated “calibration checks are en- tirely independent of the breath tests.” The low thus were not faulty instrument, indicative of a gradu- but of a ally diminished alcohol content in the simulator solution. We there- fore hold that the District Court holding did not err in that the In- toxilizer 5000 test was administered in substantial the Administrative Rules of Montana.
The evidence introduced probable at trial indicated cause for the arrest, proper administration of the Intoxilizer test to proper instrument, condition of the and the excessive alcohol concentration in the defendant’s blood at the time of his ar- rest in 61-8-406, violation of MCA. The § Intoxilizer 5000 the alcohol concentration of O’Brian’s breath first at 0.207 and then at which when averaged nearly to 0.197 amounts to double the alcohol concentration driving allowed when upon an automobile public roads in Montana. This concentration indicated O’Brian had been operating his vehicle with an alcohol concentration of 0.10 or more in MCA, violation of statutory provision im- posing liability upon absolute proof defendant of such an *5 did err find-
excessive District Court thus concentration. The driving while ing guilty beyond doubt the defendant a reasonable imposing a sentence under the influence of alcohol and then accordance with MCA. Court affirmed.
The and sentence of the District are CHIEF MR. JUSTICES HARRI- MR. JUSTICE TURNAGE and SON, WEBER and McDONOUGH concur. SHEEHY, dissenting:
MR. JUSTICE the I our evi- dissent. This case should be dismissed under statutes dence of the breath tests inadmissible. were
Evidence of the results a breath test for alcohol concentration prepared and analysis report if admissible the breath verified 61-8-404(b)(i), by person performed MCA. the who the test. Section police report, being prepared The here who the not otherwise officer only by divinely verify report the equipped, could the use of calibra- intoxilyzer. is that check of The contention of the State we tion the the ignore can the the calibration check. Under stat- erratic result of report prepared admissibility, must not be ute officer, verified him. but procedure police verify to the breath The established for using a refer- suspect DUI is to a calibration check test of a conduct ence solution a known 0.10 alcohol concentration. majority that test of the simulator solu-
The admit results, testing produced just tion two 0.60 and to appellant an inaccu- appellant. The of the shown taken later, 0.187 racy, instance three minutes registering 0.202 one another, percent, although the intox- a variance of at least percent. supposed plus or minus 5 ilyzer is be to within accurate way knowing have no whether the We tested, accurately May because it is on O’Brian was when impossible the known concentration to determine from the record time, have verified alcohol simulator at which would away inaccuracy verifi- explain The tries to results. State testify sample by having cation its witness period a known in the of time from of the simulator had reduced recorded concentration concentration of 0.10 police officer’s log of this argument. 0.060. belies this are as follows: checks tests with Simulator Blood/Alcohol Date Results Results 4-16-87 .073 .227 .000 4-21-87 .078 5-9-87 .063 .158 5-17-87 .066 .175 5-17-87 None .164 5-17-87 None .170 5-25-87 .064 .219 5-26-87) .060 .207 5-26-87) O’Brian .062 .187 7-6-87 .084 .162 7-14-87 .081 .000 *6 7-20-87 .074 .084 8-12-87 .046 .048 8-15-87 .091 .235 9-9-87 .050 .195 9-19-87 .065 .169 9-19-87 .053 .063 9-19-87 .074 .133 logs conclusively correctly show if the were recording the solution, alcohol in concentration the simulator al- increased rather following cohol concentration than decreased fact, O’Brian test. In eight the check tests of the simulator solution days 17) showed no alcohol (May before O’Brian was tested in simulator solution. On May 26, for a check of the simulator had increased in no May alcohol concentration alcohol on on 26! In in the test checks of the simulator solution following July the months the O’Brian 6 the re- on 0.084, corded an of 0.022 in increase alcohol concentration or a 35.5 increase. percent August gave On an con- simulator alcohol percent centration result of an increase of 46.7 from the Thus, check explanation O’Brain test. wore State’s that as time on the alcohol the simulator in- solution decreased is belied. The toxilyzer following check tests show the O’Brian’s tests reference increasing decreasing simulator content. alcohol Either Intoxilyzer incorrectly recording was or the the check tests reference manufacturing performing alchemy, simulator solution was a feat of devouring alcohol at will. established O’Brian therefore accuracy performed a reasonable doubt as to of the tests him, very but a verification of his tests. substantial doubt as to the Laboratory personnel recognized problem
The State Crime entry An inspected October when the machine follows: inspector as written *DO NOT Inspection of Annual 186—19/.100 Calibration2/new THE CAL- THE RESULT OF WHEN USE THIS INSTRUMENT CHANGE BELOW IS OVER .110 OR IBRATION CHECK 0.90/ OF THE AT THE FIRST PER MONTH ONCE SOLUTIONS MONTH, LOG IN THE THE CHANGE THE DATE OF RECORD TO HEAT BOOK, THE SOLUTION ALLOWS AND ALWAYS ON. LIGHT COMES UNTIL THE READY important because of the verification tests through a breath being very measured minute amounts of 61-8-406, MCA, must be it person DUI under To convict a test. or more. in his breath is 0.10 concentration shown that the alcohol statute tests is defined “Alcohol concentration” for breath 61-8-407, MCA. per Section “grams of alcohol 210 liters breath.” definition, weight of alco- proportioning the weight/volume This is a air. against hol a volume of A gram of specific gravity of 0.789.
Absolute alcohol has a gramA of alcohol is occupy 1.26 cubic centimeters. will a volume of liters, equals 55.5 which against volume of 210 proportional a breath that one distended proportion is so gallons liquid volume. That very small amount can see that a variation of swings in the resultant will result wide the same volume of breath. top your upper may as the
A be considered cubic centimeter alco- To achieve a 0.10 finger distally root of the nail. little from the conviction, approximately Vs hol concentration sufficient *7 cubic centimeters top your finger, little or 0.126 volume of the man with a present gallons in of breath. alcohol must be born, so the amount yet be capacity gallons has lung of 55.5 must in breath qualify for a 0.10 of alcohol present amount of alveolar proportion to the be reduced scientists tiny is no doubt that amount. There lungs. It is a measure intoxilyzers which will as devised machines such have percent. plus range or minus within a alcohol content breath Machines, Sometimes your unlike automobile. are not admissibility evi- reason, go wrong. the statute things For that the machine’s requires dence of breath alcohol tests verification Here, lacking. verification is results. to dim he failed stopped in this case because was first must be He Roundup, Montana. morning lights at 2:00 truly prosecution with his amazed at what unfolded connection subsequently. by principal witness relied on the State was Wil- Newhouse, by liam from described State as a forensic scientist Laboratory. literally argumenta- the State Crime “Forensic” means tive. There is no is an such science forensics because forensic physics. art not a He background science. His educational is in regard has testified to determination of blood alcohol breath analysis testimony over 60 times in If his is an Montana courts. here example, testimony paid gun he is more of a than a scientist. His essentially correctly working is to the effect that when the simulator solution was first used and was cor- rectly by person inspected on October when it was Laboratory. Crime testimony disregard State His that we can the erratic results of the simulator solution because recording accurately. testimony, What is left in this how- out ever, content, is that without a reference simulator of known alcohol the tests taken of O’Brian on 26 have been verified person administering (b)(i), the test. Section 61-8-404 MCA. Under statute, therefore, the results of O’Brian’s test have should not been admitted into evidence.
I would reverse the conviction in this case.
MR. JUSTICE foregoing HUNT concurs with the dissent.