I N THE SUPREME COURT O THE STATE OF M N A A
F O T N
JEFFREY K E V I N O ' B R I A N ,
D e f e n d a n t and A p p e l l a n t ,
VS.
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t .
APPEAL FROM: The D i s t r i c t C o u r t o f t h e F o u r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M u s s e l s h e l l ,
The H o n o r a b l e Roy C . R o d e g h i e r o , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
John L. P r a t t ; Ask & P r a t t , Roundup, Montana
For Respondent:
H o n o r a b l e Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
P a u l D . J o h n s o n , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a , Montana
F l o y d Brower, M u s s e l s h e l l County A t t o r n e y , Roundup, Montana
G e r r y M . H i g g i n s , Deputy County A t t o r n e y , Roundup, Montana
S u b m i t t e d on B r i e f s : December 29,
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<<, Decided: February 2 3 , 1989
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Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Defendant Jeffrey 0' Brian (0'Brian) appeals from the
judgment and sentence entered bv the Fourteenth Judicial
District Court, Musselshell County. Based upon the results
of an Intoxilizer test administered to OtBrian, the District
Court found him guilty beyond a reasonable doubt of a per se
violation of driving a vehicle with a blood alcohol
concentration greater than 0.10. We affirm.
The sole issue raised upon appeal is whether the
District Court erred in admitting the results of an
Intoxilizer 5000 blood alcohol concentration test when the
test was allegedly not administered in compliance with
requirements of the Administrative Rules of Montana?
Shortly after 2:00 a.m. on May 26, 1987, officer
Woodrow Weitzeil stopped O'Brian for failing to dim his
lights. The officer requested OtBrian to produce his
driverts license and insurance, which 0'Brian prod-uced
without difficulty. The officer, however, detected the
strong odor of alcohol on O'Rrian's breath while talking with
him. Consequently, the officer requested O'Brian to take
several field sobriety tests, including the Horizontal Gaze
Nystagmus test and the one-legged stand test. Following
these tests, the officer placed O'Brian under arrest for
driving under the influence of alcohol (DUI) and drove him to
the Musselshell County jail. An fntoxilizer SO00 test was
administered at the jail.
Officer Weitzeil, a trained operator of the Intoxilizer
5000 instrument, administered the test. The officer first
conducted a calibration check of the instrument by passing a
simulator solution through the instrument. The solution had
a known concentration of 0.10 grams of alcohol per 210 liters
of vapor five to seven months prior to this calibration
check. The Intoxilizer 5000 registered an alcohol content in
the solution of 0.060. The officer ran an air blank through
the instrument to clear all traces of alcohol vapor from it
and then requested that O'Brian blow into the instrument. It
registered OIBrian's blood alcohol concentration at 0.207 at
2:32 a.m. that morning. The officer conducted another
calibration check with the same simulator solution. The
solution registered an alcohol content of 0.062 during the
second check. An air blast was again run through the
instrument and then O'Brian was again tested. This second
test of O'Brian, three minutes after the first test,
registered a blood alcohol content of 0.187. O'Brian was
subsequently charged by amended complaint with operating a
motor vehicle with an alcohol concentration of 0.10 or more
in violation of 5 61-8-406, MCA.
O'Brian was tried on this charge in Justice Court on
November 13, 1987. Following a trial and without a
determination of guilt, the Justice of the Peace dismissed
the criminal charge in the amended complaint for lack of
jurisdiction. Among other errors, the Justice of the Peace
found that O'Brian had not been arraigned on the amended
charge of DUI per se and had not entered a plea to this
charge prior to trial. The county then appealed thi-s
dismissal to the Fourteenth Judicial District Court of
Musselshell County.
On April 7, 1988, the District Court arraigned O'Brian
on the DUI per se charge and then proceeded with a nonjury
trial, over objections of double jeopardy and lack of a
speedy trial. by the defense counsel. At the conc3usion of
the trial, the court held that the Intoxilizer 5 0 0 0 test was
administered in substantial compliance with State statutes
and the Administrative Rules of Montana. The court then
ad judged the defendant guilty, based solely upon the results
of the Intoxilizer 5 0 0 0 test, of driving with a blood alcohol
content of 0 . 1 0 or greater in violation of S 6 1 - 8 - 4 0 6 , MCA.
The court ordered O'Brian to pay a $ 1 0 0 fine, to pay for and
complete an alcohol treatment program, and to surrender his
permanent driver's license. O'Brian appeals from this
judgment and sentence.
Appellant contends that officer Weitzeil failed to
administer the Intoxilizer 5 0 0 0 test in compliance with the
requirements of the Administrative Rules of Montana. The
Rules require a calibration check to fall within a plus or
minus one-tenth range of the known alcohol concentration of a
reference solution to guarantee the instrument's accuracy
prior to admission of the test Yet, in this case, the
Intoxilizer 5 0 0 0 registered the simulator solution at 0.061,
and 0 . 0 6 2 just prior to the testing of appellant. These
readings do not come within the required plus or minus
one-tenth range of the known 0 . 1 0 alcohol concentration of
the solution. Consequently, the appellant contends the test
was not administered in compliance with the Administrative
Rules of Montana, the accuracy of the test results were
questionable, and the court thus erred in admitting the
Intoxilizer 5 0 0 0 test results into evidence.
At the outset, we note that a criminal defendant
charged with driving under the influence of alcohol is indeed
entitled to any procedural safeguards in the Administrative
Rules of Montana. State 77. McDonald (Mont. 1 9 8 5 ) , 6 9 7 P.2d
1338, 1331., 42 St.Rep. 414, 419. Those procedural safeguards
which are relevant to this case and which the defendant
alleges were violated are found in § 23.4.135(2), ARM ( 1 9 8 7 1 :
(2) The department shall examine and
evaluate any breath-testing instrument
submitted for its approval. The
department may approve the instrument if
the instrument meets the followinq
criteria:
(b) The instrument is capable of
analyzing a suitable reference sample,
such as air equilibrated with a
reference solution of known alcohol
content at a known temperature. The
results of such analysis must fall
within a range defined by plus or minus
one-tenth of the alcohol concentration
of the reference solut.ion or such other
limits set by the department. ..
This Administrative Rule requires only that the Tntoxilizer
5000 instrument be capable of analyzing a reference simulator
solution within a plus or minus one-tenth range. The Rule
does not require a calibration check before each test,
although. officers routinely ran such a check prior t.0 the
testing of each defendant.
The Intoxilizer 5000 instrument used on the defendant
had satisfied the requirements of the Administrative Rules
prior to its use. Expert witness William Newhouse, a
forensic scientist at the Montana Department of ;Tusticels
Crime Laboratory in Missoula, testified that the instrument
in use at the time of defendant's arrest had been instal-led
in the Musselshell Countv sheriff Is office on June 17, 1986.
At that time, a calibrat'on check using a simulator solution
with a known alcohol concentration of 0.10, resulted in a
0.102 reading. This reading was well within the permissi-hle
one-tenth range of accuracy. Additionally, the officer whc
administered the test on the defendant was properly trained
in the use of the Intoxilizer 5000 test and conducted the
test in accordance with such training. F e hold that the
J
evidence adduced at trial was sufficient to indicate the
proper working condition of the instrument on May 26, 1987
and to ensure the legal sufficiency of the admitted evidence.
Expert witness Newhouse testified that a calibration check is
not necessary prior to every breath test to ensure the
accuracy of an Intoxilizer 5000 instrument. Rather, periodic
calibration checks would sufficiently guarantee the proper
working condition of the instrument. On October 8, 1987, Joe
Stewart, another forensic scientist with the Crime Lab in
Missoula, conducted just such a periodic check of the
instrument at issue in this case. The Intoxilizer registered
the alcohol level of a new simulator solution with a known
0.10 alcohol concentration at 0.098, 0.096, 0.098, and
0.0987, respectively, after four separate calibration checks.
Each of these checks indicated the instrument was properly
working and calibrating within the instrument's required
range of accuracy. Newhouse thus concluded:
Again, based on our records at the
laboratory and the log records, I can
tell you, based on my familiarity with
this instrument over four years and
[with] 65 other instruments, that I can
tell that instrument was measuring blood
alcohol concentrations on breath tests
accurately on May 26, 1987.
Further, the testimony at trial sufficiently explained
the reason for the low calibration checks on May 26, 1987 and
the lack of efFect such low readings would have had on the
accuracy of the appellant's breath tests. A.s Newhouse
testified, the low calibration readings of 0.060 and 0.067 on
May 26, 1987 were due to a general decrease in the alcohol
concentration of the simulator solution because of its
repeated use over the prior four to five month period. The
Crime Lab instructed all officers operating the Intoxilizer
5000 to change the simulator solution once a month to prevent
this decrease in the solution's alcohol concentration, but
the officers failed to do so. Consequently, many calibration
checks such as the ones run on May 26, 1987 proved
essentially worthless because of the unknown alcohol
concentration of the simulator solution. However, these
invalid calibration checks had no bearing on the validity of
the defendant's breath tests for, as stated by Newhouse,
"calibration checks are entirely independent of the breath
tests. " The low calibration readings thus were not
indicative of a faulty instrument, but only of a gradually
diminished alcohol content in the simulator solution. We
therefore hold that the District Court did not err in holding
that the Intoxilizer 5000 test was administered in
substantial compliance with the Administrative Rules of
Montana.
The evidence introduced at trial indicated probable
cause for the arrest, the proper administration of the
Intoxilizer test to O'Brian, the proper working condition of
the instrument, and the excessive alcohol concentration in
the defendant's blood at the time of his arrest in violation
of 61-8-406, MCA. The Intoxilizer 5000 registered the
alcohol concentration of OIBrian's breath first at 0.207 and
then at 0.187, which when averaged to 0.197 amounts to nearlv
double the alcohol concentration allowed when driving an
automobile upon the public roads in Montana. Thj-s
concentration indicated O'Rrian had been operating his
vehicle with an alcohol concentration of 0.10 or more in
violation of 5 61-8-406, MCA, a statutory provision imposing
absolute liability upon a defendant upon proof of such an
excessive concentration. The District Court thus did not err
in finding the defendant guilty beyond a reasonable doubt of
driving while under the influence of alcohol and in then
imposing a sentence in accordance with S 61-8-722, MCA.
The judgment and sentence o
afFirmed.
We concur:
Mr. Justice John C. Sheehy, dissenting:
I dissent. This cause should be dismissed because under
our statutes the evidence of the breath tests were
inadmissible.
Evidence of the results of a breath test for alcohol
concentration is admissible if the breath analysis report was
prepared and verified by the person who performed the test.
Section 61-8-404(b)(i), MCA. The police officer here who
prepared the report, being not otherwise divinely equipped,
could verify the report only by use of the calibration check
of the intoxilyzer. The contention of the State is that we
can ignore the erratic results of the calibration check.
Under the statute for admissibility, however, the report must
not only be prepared by the officer, but verified by him.
The procedure established for police officers to verify
the breath test of a DUI suspect is to conduct a calibration
check using a reference solution vrith a known 0.10 alcohol
concentration.
The majority admit that the intoxilyzer test of the
similator solution produced two results, 0.60 and 0.62, just
prior to the testing of the appellant. The readings taken of
the appellant show an inaccuracy, registering 0.202 in one
instance and three minutes later, 0.187 in another, a
variance of at least 7.5 percent, although the intoxilyzer is
supposed to be accurate to within plus or minus 5 percent.
We have no way of knowing whether the intoxilyzer was
working accurately on May 26, 1987, when OtBrien was tested,
because it is impossible to determine from the record the
known concentration of the alcohol simulator at the time,
which would have verified his test results. The State tries
to explain away the ;-nacc~rac;~ t.he verification sample by
of
having its witness testify that the alcohol content of the
simulator had reduced in the period of time from a known
concentration of 0.10 to the recorded concentration on May
26, 1987 of 0.060. The log belies this argument. The log of
this police officer s tests with the registered calibration
checks are as follows:
Date Simulator Results Blood/Alcohol
Results
.073
.078
.063
.066
None
None
.064
.060
.062
.084
.081
.074
.046
.091
.050
.065
.053
.074
The logs shows conclusively that if the intoxilyzer were
correctly recording the alcohol concentration in the
simulator solution, the alcohol concentration increased
rather than decreased following the OfBrian test. In fact,
the check tests of the simulator solution eight days before
OfBrian was tested (May 17) showed - alcohol - -
no in the
simulator solution. On May 26, for a check of OfRrian, the
simulator had increased in alcohol concentration from - no
alcohol on May 17 to 0.060 in May 26! In the test checks of
the simulator solution in the months following the O'Rrian
test, on July 6 the intoxilyzer recorded 0.084, an increase
of 0.022 in alcohol concentration or a 35.5 percent -
increase.
On August 15, the simulator gave an alcohol concentration
result of 0.091, an increase of 46.7 percent from the O'Brian
check test. Thus, the State's explanation that as time wore
on the alcohol in the simulator solution decreased is belied.
The intoxilyzer check tests following O'Brian's tests show
the reference simulator increasing and decreasing in alcohol
content. Either the intoxilyzer was incorrectly recording
the check tests or the reference simulator solution was
performing a feat of alchemy, manufacturing and devouring
alcohol at will. O'Brian therefore established not only a
reasonable doubt as to the accuracy of the tests performed
upon him, but a very substantial doubt as to the verification
of his tests.
The State Crime Laboratory personnel recognized the
problem when the machine was inspected on October 8, 1987.
An entry was written by the inspector in the log as follows:
Annual Inspection of Calibration2/new 186-19/.100
*DO NOT USE THIS INSTRUMENT WHEN THE RESULT OF THE
C~IRRATION CHECK IS OVER .I10 OR BELOW 0.90.
CHANGE SOLUTIONS ONCE PER MONTH AT THE FIRST OF THE
MONTH, RECORD THEDATEOF THAT CHANGE IN THE LOG
BOOK, AND ALWAYS ALLOW THE SOLUTION - HEATUNTIL
TO -
THE READY LIGHT COMES -
.NO
The accuracy of the verification tests is important
because of the very minute amounts of alcohol being measured
through a breath test. To convict a person of DUI under S
61-8-406, MCA, it must be shown that the alcohol
concentration in his breath is 0.10 or more. "Alcohol
concentration" for breath tests is defined by statute as
"grams of alcohol per 210 liters of breath." Section
61-8-407, MCA. This is a weight/volume definition,
proportioning the weight of alcohol against a volume of air.
Absolute alcohol has a specific gravity of 0.789. A
gram of alcohol will occupy a volume of 2.26 cubic
centimeters. A gram of alcohol is proportional against a
breath volume of 2 1 0 liters, which equals 55.5 gallons of
liquid volume. That proportion is so distended that one can
see that a variation of a very small amount in alcohol
content will result in wide swings in the resultant alcohol
concentration in the same volume of breath.
A cubic centimeter may be considered as the upper top of
your little finger distally from the root of the nail. To
achieve a 0.10 alcohol concentration sufficient for
conviction, approximately 1 / 8 of the volume of the top of
your little finger, or 0 . 1 2 6 cubic centimeters of alcohol
must be present in 5 5 . 5 gall.ons of breath. The man with a
lung capacity of 5 5 . 5 gallons has yet to be born, and so the
amount of alcohol to qualify for a 0 . 1 0 alcohol concentration
in breath must be reduced in that proportion to the amount of
alveolar air present in the lungs. It is a tiny amount.
There is no doubt that scientists have devised machines such
as intoxilyzers which will measure breath alcohol content
within a range of plus or minus 1 0 percent. Machines,
however, are not unlike your automobile. Sometimes things go
wrong. For that reason, the statute on admissibility of
evidence of breath alcohol tests requires verification of the
machine's results. Here, verification is lacking.
O'Brien was first stopped in this case because he failed
to dim his lights at 2 : 0 0 in the morning in Roundup, Montana.
He must be truly amazed at what unfolded in connection with
his prosecution subsequently. The principal witness relied
on by the State was William Newhouse, described by the State
as a forensic scientist from the State Crime Laboratory.
"Forensic" literally means argumentative. There is no such
science as forensics because a forensic is an art and not a
science. His educational background is in physics. He has
testified in regard to determination of blood alcohol- by
breath analysis over 60 times in Montana courts. If his
testimony here is an example, he is more of a paid gun than a
scientist. His testimony essentially is to the effect that
the intoxilyzer was working correctly when the simulator
solution was first used and was working correctly on October
8, 1987, when it was inspected by a person from the State
Crime Laboratory. His testimony is that we can disregard the
erratic results of the simulator solution because the
intoxilyzer was recording accurately. What is left out in
this testimony, however, is that without a reference
simulator of known alcohol content, the tests taken of
O'Brian on May 26 have not been verified & the person
the test. Section 61-8-404 (b)(i), MCA. Under
administering - -
the statute, therefore, the results of OIBrianlstest should
not have been admitted into evidence.
T would reverse the conviction in this case.
, Justice
,
i
I concur witn the foregoing dissent.