*1 MONTANA, STATE OF CITY OF HELENA, Respondent, Plaintiff and ALFRED WEITZEL, RICHARD Appellant. Defendant No. 04-542. September Submitted on Briefs 2005. July 21, Decided 2006. 167. Appellant: Wendy Holton, Attorney Law,
For Helena. Respondent: McGrath, For Hon. Attorney General; Mike Carol Schmidt, Attorney E. General, Helena; Wood, Assistant Robert J. City Prosecutor, Helena.
JUSTICE WARNER Opinion delivered Court. (Weitzel) Richard Alfred Weitzel appeals Court, County, First Lewis and Clark Judicial District Se) (DUI Per concentration of .10 or more alcohol 406(a), We affirm. that his conviction of DUI Per Se must be reversed Weitzel claims present blood
because (BAC) concentration was .10 more while *2 BAC, to his as defined determine it not have admitted into both because fifty-one it administered minutes after was unreliable and because was driving. he stopped Cory evening of October Helena Police Officer On motorcycles thought that he were
Livesay (Livesay) observed two exceeding Livesay stopped limit. speed and beverage, an and alcoholic initially drinking, consuming later glossy. Weitzel denied but admitted tests, and Livesay one administered Weitzel beer. and turn one-leg stand the walk and unsatisfactorily performed also detected tests. A breath test at scene driving the influence Livesay alcohol. arrested Weitzel (DUI). center, Livesay waited fifteen minutes before At the detention test, using test. The
asking Weitzel submit a breath City (Intoxilyzer) regularly 5000 machine used fifty-one minutes after Weitzel was was administered purpose, Weitzel was stopped. The test indicated .129. Se, DUI, Speeding. and charged with Per Following in Helena Court of DUI Per Se jury A District Court Speeding, appealed Weitzel the District Court. trial, Speeding. Se and At the again convicted Weitzel of Per Drynan (Drynan) testified on cross-examination Officer Debora and she temperature body at nor his the time knew neither Weitzel’s breath for a that a BAC will rise Drynan was tested. also stomach can drinking, the amount of food in a period after what or when Weitzel and she did know absorption, affect alcohol that, once alcohol is introduced prior stop. She also testified ate liters of grams system, approximately .015 body every hour. be metabolized breath will the environment of Livesay nothing in terms of testified According affected the test results. test Weitzel’s condition with his observations Weitzel. of. 129 was consistent Livesay, BAC processing. minutes average time fifty-one said also also testified that the rate at which a metabolizes size, depend gender, body ate. alcohol can on whether stopped. did not know when Weitzel last ate before he was test, time Finally, Livesay agreed that, at the did know rising falling. BAC whether Weitzel’s was reviewing matter, a criminal this Court reviews a whether, concerning sufficiency of the evidence to determine after light reviewing prosecution, most favorable to the any rational trier of fact could have found the essential elements of the beyond crime Weigand, reasonable doubt. State v. Weitzel failed that his BAC was .10 greater while he was He first notes that the test occurred
fifty-one stop, minutes after the attempt the State made no extrapolate this his BAC while he minutes earlier. posits Weitzel that it is unknown whether BAC test, rising falling may the time of the and his BAC been lower while goes claim that BAC test result should not have
been admitted into margin evidence because the 10% of error weekly Also, allowed in the Intoxilyzer. calibration test of the *3 claims the Intoxilyzer the evidence of test should be excluded because the machine assumes a breath and his temperature was breath not measured. Additionally, complains that the
¶10 1, blood/breath ratio 2100 of and this ratio people. varies between Finally, Intoxalyzer evidence should have been excluded because the rate at which a metabolizes alcohol depends multiple eating, factors including and the State introduced regarding eating. information 61-8-406(1)(a), (2001), provided Section MCA as follows:
(1) provided It is unlawful and punishable as 722, 61-8-723, through any person and 61-8-731 61-8-734 for physical drive or be in actual of: control (a) a ways noncommercial vehicle of upon open this state public person’s concentration, to the while the as by analysis blood, breath, urine, the person’s shown of 0.10 more. identical, except The current statute is the unlawful BAC is now 61-8-406(1)(a),
0.08. See recently We addressed of whether the results of person’s a breath 50 minutes after Intoxalyzer test of
526 a person’s evidence of BAC at was arrested constituted McGowan, 6, 163, MT time he was State v. ¶ 841, McGowan, of P.3d we with courts ¶ ¶ necessary that it those States which have determined through retrograde extrapolation evidence what time was ¶ explicitly admissibility for the The allows breath In this proceedings. tests in DUI Per Se Section MCA. case, Intoxalyzer results of the the State was entitled introduce the as minutes later evidence that Weitzel a BAC of .10 or more. Weitzel was also entitled weaknesses, through which he did introduce evidence of machine’s argue of the State’s witnesses. He was thus able to cross-examination guilt, as to he did. there was a reasonable doubt However, go to the points we conclude that raised Weitzel evidence, See weight admissibility the test of the test results. Damon, State v. specific of whether (questions raised defendant III unreliable protocols rendered results Aleo-Sensor
conditions evidence). admissibility, weight, rather than went to 61-8-406(1)(a), MCA, requires analysis Section blood, breath, prosecution can establish urine before instance, City presented additional evidence of the statute. In this verify against its case Weitzel the tending to results. In evidence that presented the circumstantial beverage stopped he observed of an alcoholic when he clues glossy, satisfactorily indicating alcohol intoxication when Weitzel Further, having Weitzel admitted perform field tests. alcohol, test also detected ingested some breath testified without his breath. Officer presence that a BAC of .129 was consistent with his observations objection Weitzel. test, along Considering results presented conclude that the
with the other we Se. to convict Weitzel of DUI Per Affirmed. *4 GRAY, LEAPHART, MORRIS CHIEF JUSTICES JUSTICE RICE concur.
JUSTICE NELSON dissents. in I dissented State I for the same reasons dissent 24-45, 139 24-45, Mont. 2006 MT ¶¶ ¶¶ this simply 24-45. This is another of Court’s result-oriented ¶¶ by reading language reached statute that was omitted decisions only That this not Legislature. practice violates blackletter 1-2-101, cite,1 legions MCA-but of cases too numerous law-§ appears longer any deterrent effect. I dissent. COTTER
JUSTICE dissents. dissent, I in too for the reasons set forth the dissent in McGowan. I express write an additional concern. The DUI se separately per law, 61-8-406, MCA, liability is an absolute statute. Section 61-8- § 406(2), MCA. It not require any does its terms call evidence itself, intoxication other than the in order a conviction 61-8-404, MCA, be obtained. “other provide While does § competent bearing evidence” on the is not intoxication prohibited cases, in per such the DUI require se statute does not requires only evidence-it a numerical value. This difference between proof per level of in required DUI se cases is underscored provides § that a person may not be (the law) 61-8-401, convicted of a other without competent any evidence-in addition to a measured amount of alcohol-tending to establish that the person was under the influence while The Court seen fit has to insert into its in Opinion here and
McGowan, other “non-test tending result” evidence establish intoxicated, the driver was though per even se statute does not require If it police, prosecutors it. is the intent of the and the courts require level of proof cases, same DUI and DUI se then I per submit that the statutes be specify amended either that such required situation, each is as superfluous to eliminate liability stands, absolute se altogether. violations As it now language respective of the statutes does simply support the forced constructions we supplying. are reasons, For these additional I dissent. 1See, example, City Gonzales, 24, 8, Billings v. (“When
8, objectives statute, interpreting implement 128 P.3d we seek to achieve, sought legislative if the can be intent language statute, plain plain language determined from the controls. ... It is statute, simply judge blackletter that in the law construction office of therein, ascertain is in or in to omit and declare what terms substance contained MCA.”) what has (internal inserted or insert has been omitted. Section what omitted). citation