No
No. 98-480
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 317
297 Mont. 263
991 P.2d 461
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROBERT DELANEY,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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Wendy Holton, Attorney at Law, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin,
Assistant Attorney General; Helena, Montana
Mike McGrath, Lewis and Clark County Attorney; Mike Menahan,
Deputy Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: September 2, 1999
Decided: December 20, 1999
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
1. ¶ Robert Delaney (Delaney) appeals from the judgment entered by the First Judicial
District Court, Lewis and Clark County, on a jury verdict finding him guilty of the
offense of driving under the influence of alcohol (DUI). We affirm.
2. ¶ The issue on appeal is whether the District Court abused its discretion in denying
Delaney’s motion in limine and admitting evidence of the results of his breath test.
BACKGROUND
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3. ¶ Delaney was arrested on February 28, 1997, and subsequently charged with third
offense DUI. At the time of his arrest, Delaney’s breath was tested on an Intoxilizer
5000 machine (Intoxilizer) which measured his breath alcohol concentration at .168.
A jury in Lewis and Clark County Justice Court found Delaney guilty and he
appealed the conviction to the District Court. The District Court scheduled a jury
trial for March 4, 1998.
4. ¶ On the morning of trial, Delaney moved in limine to exclude the results of the
Intoxilizer test, asserting that the State of Montana (State) could not provide
adequate foundation regarding the Intoxilizer’s annual certification to allow
admission of the test results into evidence. The District Court denied the motion and
the test results were admitted into evidence at trial.
5. ¶ The jury found Delaney guilty of DUI and the District Court sentenced him and
entered judgment. Delaney appeals.
STANDARD OF REVIEW
6. ¶ A district court’s decision regarding a motion in limine is an evidentiary ruling.
See State v. Fenton, 1998 MT 99, ¶ 11, 288 Mont. 415, ¶ 11, 958 P.2d 68, ¶ 11.
"The determination of whether evidence is relevant and admissible is left to the
sound discretion of the trial judge and will not be overturned absent a showing of
abuse of discretion." Fenton, ¶ 11 (citations omitted).
DISCUSSION
7. ¶ Did the District Court abuse its discretion in denying Delaney’s motion in limine
and admitting evidence of the results of his breath test?
8. ¶ The State closely regulates the breath analysis instruments used in determining the
breath alcohol concentration of a person charged with an alcohol-related driving
offense through the Administrative Rules of Montana (ARM). State v. Woods
(1995), 272 Mont. 220, 222, 900 P.2d 320, 322. A person charged with such an
offense is entitled to the procedural safeguards contained in the ARM. Woods, 272
Mont. at 222, 900 P.2d at 322. Consequently, in order for the results of a
defendant’s breath test to be admitted into evidence in a criminal trial, the State
must lay a proper foundation by establishing that the instrument used for the test
complied with the ARM requirements. Woods, 272 Mont. at 223, 900 P.2d at 322.
9. ¶ Section 23.4.214, ARM, the provision at issue in this case, requires that all breath
analysis equipment be sent to the State division of forensic science annually for a
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laboratory certification. Several times during pretrial discovery, Delaney requested
the State to provide documentation that the Intoxilizer used to test his breath had
been properly certified as required by § 23.4.214, ARM, and the State produced a
copy of the laboratory certification form in response to each request.
10. ¶ On the morning of trial, Delaney moved in limine to exclude the results of his
breath test, asserting that the annual certification form was inadmissible hearsay
which could not be used to lay the necessary foundation for admission of his breath
test results. During brief arguments on Delaney’s motion, the State contended it was
not required to have the annual certification form admitted into evidence in order to
lay the foundation for admitting the breath test and, as a result, it did not matter that
the document was hearsay. According to the State, it only needed to establish to the
satisfaction of the court that the certification had been performed. The District Court
agreed, denied Delaney’s motion and admitted Delaney’s Intoxilizer breath test
results into evidence. Delaney asserts the District Court abused its discretion.
11. ¶ As stated above, the State must lay a foundation for admission of breath test
results in a DUI trial by establishing, inter alia, that the ARM requirement for
annual certification of the Intoxilizer machine used for the test has been met.
Delaney asserts that, to lay this foundation, the State must introduce--and have
admitted into evidence at trial--proof that the annual certification has been
performed. He further asserts that the annual certification form is hearsay and,
consequently, it is admissible only if it meets one of the exceptions to the hearsay
rule. According to Delaney, the State informed him prior to trial that it would
attempt to introduce the certification form under Rule 803(6), M.R.Evid., which is
the business records exception to the hearsay rule. He argues that the certification
form is not admissible under this exception, however, because Rule 803(6) requires
that the custodian of the records to be admitted must testify at trial and the State did
not call Philip Lively (Lively), the person who performs the annual certifications on
the Intoxilizers and is the custodian of those records, as a witness. He also argues
that the certification form is not admissible as a State crime laboratory report under
Rule 803(6) because the State did not give him written notice of its intent to offer
the form as such as required by the Rule.
12. ¶ In response, the State contends it is not required to have a foundational document
such as the annual certification form admitted into evidence at trial, as long as it
produces the document and establishes to the court’s satisfaction that the annual
certification required by the ARM occurred. Thus, the State contends it was not
required to meet the Rule 803(6) hearsay exception by calling Lively to testify as
the custodian of the certification records.
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13. ¶ Delaney relies on Woods in support of his contention that the State must have
foundational evidence admitted at trial. In that case, we held that the district court
abused its discretion in admitting breath test evidence when the prosecution did not
lay proper foundation by establishing that the instrument used for the test complied
with the ARM. Woods, 272 Mont. at 223, 900 P.2d at 322. Unlike the present case,
however, the prosecution in Woods advanced no evidence whatsoever that the
breath test instrument complied with the ARM. Woods, 272 Mont. at 223, 900 P.2d
at 322. Because no foundational evidence was offered in Woods, we were not
presented with the issue before us here--namely, whether the foundational evidence
of compliance with the ARM must be admitted into evidence. As a result, Woods is
inapplicable.
14. ¶ The determination of whether adequate foundation exists for the admissibility of
evidence is within the sound discretion of the district court. State v. Weeks (1995),
270 Mont. 63, 75, 891 P.2d 477, 484 (citations omitted). In the present case, the
question of whether adequate foundation existed for admission of the Intoxilizer
results depended on a determination of whether the Intoxilizer used to test
Delaney’s breath had undergone annual certification at the State crime laboratory as
required by § 23.4.214, ARM. This determination was to be made by the District
Court in accordance with Rule 104(a), M.R.Evid., which provides that
[p]reliminary questions concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be determined by the
court. In making its determination it is not bound by the rules of evidence except
those with respect to privileges.
The final sentence of this Rule appears to authorize a district court to examine any
proffered evidence, regardless of its admissibility, in determining the admissibility
of challenged evidence.
15. ¶ While we have not previously addressed this portion of Rule 104(a), we observe
that it is identical to Rule 104(a) of the Federal Rules of Evidence. Under such
circumstances, interpretations of the federal rule are persuasive in interpreting our
Montana rule. See U.S. Fidelity and Guar. Co. v. Rodgers (1994), 267 Mont. 178,
182, 882 P.2d 1037, 1039; Heltborg v. Modern Machinery (1990), 244 Mont. 24, 29-
30, 795 P.2d 954, 957. Federal courts interpreting Rule 104(a) of the Federal Rules
of Evidence have held that, in determining whether adequate foundation exists for
the admission of evidence, the plain language of the Rule authorizes a trial court to
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consider any evidence "includ[ing] hearsay and other evidence normally
inadmissible at trial." United States v. Franco (7th Cir. 1989), 874 F.2d 1136, 1139
(citing Bourjaily v. United States (1987), 483 U.S. 171, 178-79, 107 S.Ct. 2775,
2780, 97 L.Ed.2d 144, 154-55); see also United States v. Campbell (5th Cir. 1996),
73 F.3d 44, 48; United States v. Merritt (10th Cir. 1982), 695 F.2d 1263, 1269-70.
16. ¶ We conclude that Rule 104(a), M.R.Evid., authorized the District Court to
consider the annual certification form in determining whether an adequate
foundation existed for admission of the Intoxilizer results without regard to whether
the form itself was hearsay. Consequently, and contrary to Delaney’s assertion, the
State was not required to call Lively, as the custodian of the annual certification
records, to testify. We conclude that the District Court did not abuse its discretion in
denying Delaney’s motion in limine on this basis.
17. ¶ Delaney also argues that allowing the State to establish foundation for the
Intoxilizer result through a hearsay document without Lively’s testimony violates
his constitutional right to confront and cross-examine the witness. In support of his
argument, he relies on our recent holding that the hearsay exception in Rule 803(8),
M.R.Evid., which allows admission of a state crime laboratory report into evidence
without the testimony of the compiler of the report is unconstitutional because it
violates the defendant’s right to confrontation. See State v. Clark, 1998 MT 221, ¶
25, 290 Mont. 479, ¶ 25, 964 P.2d 766, ¶ 25. Delaney contends that the State offered
the annual certification form as a state crime laboratory report pursuant to language
in Rule 803(6), M.R.Evid., which is identical to the portion of Rule 803(8) held
unconstitutional in Clark, and, as a result, his right to confrontation was violated in
the same manner as the defendant’s in that case.
18. ¶ The evidence offered under the state crime laboratory report hearsay exception in
Clark was a report of the chemical analysis of alleged drugs taken from the
defendant when he was arrested. The chemical analysis was a critical part of the
substantive evidence offered by the prosecution to prove the defendant committed
the offense of criminal possession of dangerous drugs. Clark, ¶ 24. Thus, failing to
call the compiler of the chemical analysis report violated the defendant’s right to
confront his accusers. Clark, ¶ 25. Here, however, the annual certification form was
not substantive evidence used to prove the charged DUI offense. It merely provided
the foundation required for the admission of other substantive evidence. The
information in the annual certification form was not accusatory in the same manner
as the chemical analysis in Clark and, as a result, that case is distinguishable.
19. ¶ Furthermore, contrary to Delaney’s contention, the State did not offer the
Intoxilizer’s annual certification form for admission into evidence as a state crime
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laboratory report. Indeed, the State has maintained throughout these proceedings
that it was not required to have the certification form admitted into evidence to
establish the necessary foundation for the Intoxilizer results. Therefore, because the
certification form was not offered or admitted under the state crime laboratory
hearsay exception, Clark is inapplicable here. We conclude that Delaney has not
established a violation of his right to confrontation.
20. ¶ We hold that the District Court did not abuse its discretion in denying Delaney’s
motion in limine and admitting evidence of the results of his breath test.
21. ¶ Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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