IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37509
STATE OF IDAHO, ) 2011 Opinion No. 56
)
Plaintiff-Respondent, ) Filed: September 12, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
BYRON HEALY, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Ron Schilling, District Judge; Hon. Debra A. Orr,
Magistrate.
District court’s intermediate appellate decision affirming judgment of conviction
for driving under the influence, affirmed.
Mark J. Mimura, Canyon County Public Defender; Casey H. Swensen, Deputy
County Public Defender, Caldwell, for appellant. Casey H. Swensen argued.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent. Lori A. Fleming argued.
________________________________________________
GUTIERREZ, Judge
Byron Healy appeals from the district court’s intermediate appellate decision affirming
his judgment of conviction for driving under the influence. Specifically, Healy challenges the
admission of his breath test results at trial. For the reasons set forth below, we affirm.
I.
BACKGROUND
On November 3, 2007, a police officer stopped Healy for speeding and failing to
maintain in his lane of travel. The officer noticed Healy’s speech was slow and slurred, his eyes
were bloodshot and glossy, and the smell of alcohol was coming from his vehicle. Healy
admitted to the officer that he had consumed seven or eight drinks that evening. The officer
performed standard field sobriety tests on Healy, which he failed, and the officer placed Healy
under arrest. After Healy was transported to the jail, the arresting officer administered a breath
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test using the Intoxilyzer 5000EN. The test results showed an alcohol concentration of .16, .18,
and .15.
The State charged Healy with driving under the influence, Idaho Code § 18-8004. At
trial, Healy objected to the admission of his breath test results, asserting the State failed to lay
adequate foundation to establish their reliability. After an offer of proof through the testimony of
a breath testing specialist, the magistrate overruled Healy’s objection and admitted the breath test
results into evidence. The jury found Healy guilty of driving under the influence. Healy
appealed and the district court affirmed his conviction. Healy appeals the district court’s
intermediate appellate decision.
II.
STANDARD OF REVIEW
On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d
758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We
examine the magistrate 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. Id. If those findings are so supported and the conclusions follow
therefrom and if the district court affirmed the magistrate’s decision, we affirm the district
court’s decision as a matter of procedure. Id.
The decision whether to admit evidence at trial is generally within the province of the
trial court. A trial court’s determination that evidence is supported by a proper foundation is
reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct.
App. 1999). Therefore, a trial court’s determination as to the admission of evidence at trial will
only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121
Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992).
III.
DISCUSSION
Healy asserts the district court erred in holding the magistrate was within its discretion
when the magistrate held that the proper foundation had been laid to admit the Intoxilyzer
5000EN results. In order to have the results of a breath test admitted as evidence at trial, the
State must proceed in one of two ways. First, it may establish that the administrative procedures,
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which ensure the reliability of that test, have been met. State v. Mazzuca, 132 Idaho 868, 869,
979 P.2d 1226, 1227 (Ct. App. 1999); State v. Utz, 125 Idaho 127, 129, 867 P.2d 1001, 1003 (Ct.
App. 1993). Under I.C. § 18-8004(4) 1, the State can meet this foundational requirement by
showing a state agency approved the equipment and an officer operated the equipment and
administered the test in conformity with applicable standards. State v. Nickerson, 132 Idaho 406,
411, 973 P.2d 758, 763 (Ct. App. 1999).
If the State cannot show conformity with the applicable test procedures, it does not
automatically require the exclusion of the test results governed by I.C. § 18-8004(4). State v.
Charan, 132 Idaho 341, 343, 971 P.2d 1165, 1167 (Ct. App. 1998). Rather, the State, as a
second option, may call an expert witness to establish the reliability of the test, thereby making
test results admissible. Id. To illustrate, in Charan, the defendant showed that the procedures
for administering a breath test with the Intoxilyzer 5000 had not been met because the officer did
not observe the defendant for the required fifteen minutes prior to giving the test. The defendant
moved to exclude the test results on that basis. However, the district court admitted the results
by relying on the testimony of an officer who qualified as an expert based on his experience with
both giving breath tests and training other officers on the breath test equipment. The expert
testified that even though the procedures for using the machine may not have been followed
exactly, the test result for the Intoxilyzer 5000 was reliable for two reasons. First, the fifteen-
minute waiting period was a procedure implemented for an older model of breathalyzer to ensure
that nothing entered the subject’s mouth prior to the test. Because the older model could not
detect the presence of recently introduced mouth alcohol, the waiting period was necessary to
1
Idaho Code § 18-8004(4) states in relevant part:
Analysis of blood, urine or breath for the purpose of determining the alcohol
concentration shall be performed by a laboratory operated by the Idaho state police or by
a laboratory approved by the Idaho state police under the provisions of approval and
certification standards to be set by that department, or by any other method approved by
the Idaho state police. Notwithstanding any other provision of law or rule of court, the
results of any test for alcohol concentration and records relating to calibration, approval,
certification or quality control performed by a laboratory operated or approved by the
Idaho state police or by any other method approved by the Idaho state police shall be
admissible in any proceeding in this state without the necessity of producing a witness to
establish the reliability of the testing procedure for examination.
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receive test results that were neither skewed nor invalid. Second, the Intoxilyzer 5000 had a
“negative slope indicator” that would detect any mouth alcohol in the subject and would reject
the breath samples as invalid if that were the case. Because the equipment did not reject the
breath sample, the expert was of the opinion that the result was reliable. Based on this
testimony, the district court admitted the test results into evidence at trial because an adequate
foundation was laid showing the test’s reliability even if the officer did not comply with the
observation procedures as directed in the manual. Charan appealed and this Court also
concluded that reliance on the uncontroverted testimony of the expert provided a sufficient
foundation for admission of the evidence. Id. at 341-43, 971 P.2d at 1165-67.
Healy argues that the breath test results should not have been admitted at trial because the
State failed to lay a foundation for reliability either by showing compliance with administrative
procedures or through the testimony of the breath testing specialist. The State argues, among
other things, that the breath testing specialist laid the foundation for the test results’ reliability,
pointing out that his testimony established the machine was working properly “based on the fact
Healy was able to complete his breath test.” The State relies on Charan as authority for this
argument.
We begin by addressing the State’s argument and clarifying the authority in Charan.
Charan does not stand for the proposition that an expert can merely testify that, because a
breathalyzer did not reject test results, or rather allowed the test to continue, it worked properly
and the test results are reliable. Testimony that “the test results were reliable because the
machine worked” is not, by itself, enough to lay an adequate foundation for the admissibility of
the evidence. Instead, the Charan court was able to rely on testimony regarding why the
unfollowed procedures were in place, why the unfollowed procedures did not affect the test
results of the Intoxilyzer 5000 because of the additional safeguard of the negative slope
indicator, and the lack of any other procedural defects in the use of the Intoxilyzer 5000 or the
test administration. Thus, in order to meet the standard in Charan and allow breath test results
into evidence when there is not strict compliance with the administrative procedures, the State
needs to not only present an expert to testify, but that expert must also testify as to why
procedural defects did not affect the reliability of test results in the particular case at issue.
Here, it is uncontroverted that there were procedural defects. At the time Healy was
arrested, the standard operating procedures for the Intoxilyzer 5000 calibration checks provided:
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“The 0.08 solution should be changed approximately every 100 calibration checks or every
month whichever comes first.” It also stated: “Whenever the 0.08 solution is changed, a four-
sample calibration check using the 0.20 solution must be run. A total of four 0.20 calibration
check results are required, whether via the breath hose, simulator port, or a combination of the
two.” At trial, the State’s breath testing specialist testified that the above procedures were not
followed with regard to the Intoxilyzer 5000EN 2 that was used on Healy. He testified that
Healy’s breath test was the 105th test that was run since the last time the 0.08 solution had been
changed, and that when he ran the solution, he ran only a two-sample calibration check using the
0.20 solution rather than a four-sample check as was required. The specialist emphasized that
these procedures are not mandatory, in the sense that the failure to follow them exactly does not
affect the validity of the test. We agree that the directive to change the 0.08 solution every 100
calibration checks or every month was a procedure that provided some latitude and that Healy’s
test, as the 105th since the previous change, fell reasonably within that allowance. Nevertheless,
the requirement to do the four-sample calibration checks of the 0.20 solution does not provide
the same leeway and the failure to follow that requirement necessitated the testimony of an
expert that other safeguards in the Intoxilyzer 5000EN were still able to ensure the reliability of
its results.
In this regard, the specialist testified that there were other safeguards to ensure the
Intoxilyzer 5000EN was providing reliable results. First, he testified that although the 0.08
solution had not yet been changed, the procedures also required the solution be used within its
expiration date and the solution in use in the equipment when Healy took the breath test did not
expire for another nine months. Second, the specialist testified the procedures require that the
0.08 solution fall within an acceptable concentration range somewhere between 0.07 and 0.09.
The solution used in Healy’s breath test showed a concentration value of 0.78, well within the
acceptable range. Finally, the specialist testified that based on his experience with the breath test
equipment, the failure to run the four calibration checks on the .0.20 solution would not affect
2
Although the Idaho State Police has not issued standard operating procedures for the
Intoxilyzer 5000EN, specific training for operation of the 5000EN model is not necessary
because it is merely an upgraded version of the Intoxilyzer 5000, rather than a new model. See
Masterson v. Idaho Dept. of Transportation, 150 Idaho 126, 129, 244 P.3d 625, 628 (Ct. App.
2010).
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the test results in this case. Considering the additional safeguards ensuring that the 0.08 solution
was valid and the specialist’s relevant experience, we conclude the proper foundation was laid
for admitting the test results at trial, even though the calibration procedures for the Intoxilyzer
were not precisely followed.
To the extent Healy argues the specialist’s testimony could not form the basis for the
State’s foundation because he was “never certified as an expert” at trial, this argument is without
merit. Although the specialist who testified was never officially labeled as an “expert,” he had
experience as a breath testing specialist and was “certified and re-certified by the POST
Academy to do maintenance, calibration and also training on the Intoxilyzer.” He was also
familiar with the mechanics and administrative procedures regarding the calibration of the
Intoxilyzer 5000EN. Given his training, experience, and knowledge, the specialist was an expert
who provided an adequate foundation for the admission of Healy’s breath test results at trial. See
Charan, 132 Idaho at 342 & n.2, 971 P.2d at 1166 & n.2 (holding that the qualifications of a
breath testing specialist as an expert to testify about the operation of the Intoxilyzer 5000 would
not be questioned on appeal).
IV.
CONCLUSION
The district court correctly ruled that the testimony of the breath testing specialist
provided an adequate foundation for Healy’s breath test results to be admitted as evidence at
trial. Accordingly, we affirm the district court’s intermediate appellate decision affirming
Healy’s judgment of conviction for driving under the influence.
Chief Judge GRATTON and Judge MELANSON CONCUR.
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