State v. Wilson

BISTLINE, Justice,

dissenting.

The sole issue on appeal as stated by the State is this:

Did the continued use of the Intoximeter 3000 after the deactivation of the Taguchi cell and the continued monthly, calibration check and certification of the Intoximeter 3000, but not a subsequent written certification from the Depart-, ment of Health and Welfare similar to that issued February 27, 1981, comply with Idaho Code § 18-8004(4) and Rule. 2-7150.04 of the Health and Welfare Rules Governing the Performance of Forensic Alcohol Examinations?

The State also filed with its brief a compilation of appendices which included the district court’s written decision:

“FINDINGS OF FACT

“I.

“Defendant at the time of his arrest on March 12, 1987, submitted to an evidentiary test of alcohol concentration at the request of the arresting officer. The arrest-. ing officer conducted or performed said evidentiary test using the Intoximeter 3000, a direct breath testing device. Such *775testing was conducted at the Lewiston Police Department.

“II.

“By memorandum dated November 4, 1981, Dr. Darrell W. Brock with the State of Idaho Department of Health & Welfare Bureau of Laboratories issued written certification and approval of the Intoximeter 3000, which certification and approval authorized use of the Intoximeter 3000 in a specified configuration as a direct breath testing device in accordance with Title 2, Chapter 7, Rule 2-7150.04 of the Rules and Regulations of the Department of Health & Welfare.

“III.

“The Intoximeter 3000 in its original configuration had two measuring components. The principle measuring component was the infrared detector which was primarily designed to quantify the amount of ethyl alcohol in the breath on the basis of grams of alcohol per 210 liters of breath. The second measuring component was the Taguchi Cell, which measures and detects the presence of acetone. If acetone was present, the Intoximeter 3000 then subtracted the contribution of acetone from the infrared reading to give a revised reading.

“In addition, if the Taguchi Cell detected acetone the machine would give an indication that acetone had been detected, which would require a number of steps to be taken, including ‘purging’ the machine with several samples that had not been contaminated with acetone.

“IV.

“In the summer of 1984 the State of Idaho Department of Health & Welfare made a decision to disconnect and deactivate the Taguchi Cell. Such deactivation of the Taguchi Cell on all Intoximeter 3000 machines used by Plaintiff in the State of Idaho was effected on or about April, 1985.

“V.

“The State of Idaho Department of Health & Welfare has issued no other or further written certification of the Intoximeter 3000 at the Lewiston Police Department since November 4, 1981.1

“VI.

“The technical configuration of the Intoximeter 3000 has been changed since April 1985, by the deactivation of the Taguchi Cell by Plaintiff State of Idaho.

“VII.

“The State contends that monthly tests to determine that the machine is measuring ethyl alcohol within certain tolerances constitutes certification and approval. The Court finds that such monthly tests and the reports produced as a result thereof are not intended by the Department of Health & Welfare to constitute certification and approval pursuant to the statute and the rules of the Department of Health & Welfare. Those monthly tests are intended as a calibration to determine how closely the machine is reading known quantities of ethyl alcohol, and are not intended as a certification or approval.

“VIII.

“When the Intoximeter 3000 at the Lewiston Police Department was originally certified for use on February 27, 1981, a certification was issued certifying and approving its use. That on November 4, 1981, a memorandum was issued to the Department of Health & Welfare which provided that the configuration specified by the supervisor of Blood and Alcohol Testing of the Forensic Section of the Department of Health & Welfare shall be the approved Direct Breath Testing Device. No such *776certification and approval has been issued after the Department of Health & Welfare changed the configuration of the Intoximeter 3000 by detaching the Taguchi Cell.

“IX.

“That with the Taguchi Cell detached, the Intoximeter 3000 no longer corrects the reading of the infrared detector when acetone is present. This can clearly lead to results being inaccurate when a person is tested who has acetone in his system. In addition, the Intoximeter 300Q is no longer ‘purged’ after a subject who has acetone is tested since there is no way to determine whether or not the infrared detector has measured acetone.

“X.

“Since the technical configuration of the Intoximeter 3000 has been altered, and since no written certification has been issued with respect to the Intoximeter 3000 as so modified, the Intoximeter 3000 is not now, nor was it at the time of Defendant’s arrest, a direct breath testing instrument certified by the Department of Health & Welfare, Bureau of Laboratories. Since the Intoximeter 3000 is and was not at the time of Defendant’s arrest such a certified direct breath testing instrument, the breath tests conducted on Defendant were taken and conducted in violation of Title 2. Chapter 7, Rule 2-7150.04 of the Rules and Regulations of the Idaho Department of Health & Welfare.

“XI.

“Plaintiff’s counsel having stipulated in argument, the Court finds that Lewiston Police Department and its premises was not at the time of Defendant’s arrest an approved or certified direct breath alcohol testing laboratory.

“XII.

“Each and every allegation contained in Defendant’s Second Motion to Suppress and Motion in- Limine, and in the Affidavit of Douglas L. Mushlitz submitted in support thereof, filed in this action is supported by proper and sufficient evidence and is true.

“CONCLUSIONS OF LAW

“I.

“Idaho Code § 18-8004 requires evidentiary tests for alcohol concentration to be performed by a laboratory operated or approved by the Idaho Department of Health & Welfare, and further requires analysis of breath for the purpose of determining alcohol concentration to be performed in accordance under provisions of approval and certification standards to be set by the defendant.

“II.

“Title 2, Chapter 7, Rule 1-7150.04 of the Rules and Regulations of the Department of Health & Welfare mandates that only direct breath testing instruments approved by the Department of Health & Welfare, Bureau of Laboratories shall be used.

“HI.

“The Intoximeter 3000 having been physically and technically altered or modified by deactivation or removal of the Taguchi Cell, the instrument now constitutes a different technical and testing configuration than in November 1981. No certification of the Intoximeter 3000 having been issued since November 4, 1981, and the instrument having been altered and modified since April 1985, the Intoximeter 3000 in the present configuration as utilized by the Department of Health & Welfare was not at the time of Defendant’s arrest and is not presently a certified and approved direct breath testing instrument.

“IV.

“Suppression and limiting the introduction of evidence which was not obtained in accordance with the statute and the Rules of the Department of Health & Welfare are appropriate remedies as the testing was conducted in violation of specific statutory provisions and in violation of the Rules and *777Regulations of the Idaho Department of Health & Welfare.

“V.

“Issuance of an Order in Limine is also an appropriate remedy. Without the necessary certification and approval, the Intoximeter 3000 in its present configuration bears no primary indicia of scientific reliability. Removal or deactivation of the Taguchi Cell seriously affects the accuracy and reliability of the test results procured by use of the Intoximeter 3000 in its present configuration.

“NOW, THEREFORE, BASED UPON THE FOREGOING FINDINGS AND CONCLUSION AND BASED UPON EVIDENCE RECEIVED UPON HEARING, THE COURT ENTERS THE FOLLOWING ORDERS:

“1. Plaintiff is prohibited from introducing, referring to, or producing any testimony or evidence with respect to the conduct or performance of any breath tests using the Intoximeter 3000 which was effected on or with regards the defendant at or near the time of his arrest and the results of said tests; FURTHER, such testimony and evidence is hereby SUPPRESSED.

“2. The Plaintiff filed a Motion for Reconsideration. The Motion for Reconsideration is hereby DENIED.

“DATED this 24th day of February, 1988.

/s/ E.B. Ponack

E.B. Ponack — District

Judge”

The State asserts in its brief that:

The district court correctly found that no certification similar to that initially issued when the Intoximeter 3000 was first selected as a direct breath testing device was issued after deactivation of the Taguchi cell. But, the state submits that the court’s conclusion that such certification was required by the applicable statutes and rules is a legal conclusion which is in error.

As just pointed out, neither Idaho Code § 18-8004(4) nor Rule 2-7150.04 requires certification of the breath testing device. Certification of the laboratory and approval of the direct breath testing device is what was required. The state respectfully submits that the state established that the Lewiston Police Department Laboratory was certified by Health and Welfare (R., pp. 112-115) and that the Intoximeter 3000 with the Taguchi cell deactivated was approved by Health and Welfare. Therefore, the intoximeter 3000 used for testing Wilson’s breath did conform with the statutes and rules governing direct breath testing devices.

Additionally, in its brief the State calls our attention to State v. Flood, 523 So.2d 1180 (D.C. of App.Fla.1988). The district judge in Wilson’s case did not have the benefit of Flood, which had not at that time been decided. The certification versus approval issue here involved and decided by Judge Ponack was also involved in Flood. It appears that Judge Ponack and the Florida court are of the same view:

The state asserts that recertification was not required by the Florida Statutes because ‘[tjhere is no stated requirement in any Florida Statute that breath testing machines must be “recertified,” or even, for that matter, “certified.” ’ The state is technically correct in its assertion as to ‘certification’ and the appellees agree. However, section 316.1932(l)(a), Florida Statutes (1985), provides in part:

(l)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in S.877.111 or controlled substances, if he is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances.

*778(Emphasis supplied.) The statute further provides:

An analysis of a person’s breath, in order to be considered valid under the provisions of this section, must have been performed substantially according to methods approved by the Department of Health and Rehabilitative Services. For this purpose, the department is authorized to approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid.

§ 316.1932(l)(b)l (emphasis supplied). Consequently, the issue of approval of these machines is left to HRS per Florida statutory authority.

Florida Administrative Code Rule 10D-42.022 provides for HRS approval of chemical breath testing methods for determining blood alcohol content for evidentiary purposes. The 1-3000 is listed as an approved chemical breath-testing instrument. See Fla.Admin. Code R.10D-42.024(9). According to the state, there is no rule requiring a machine to be recertified each time a modification is made. Appellees counter:

The state’s argument that re-eertification is not required by statute or rule is a shallow argument in that it is admitted by all parties that recertification or re-approval is not mentioned. What is mentioned is approval, and that’s exactly what Defendants are arguing to this Honorable Court. The Defendants have examined the machine that was used in their cases and allege that it is not the machine that is on the approved list and is, therefor [sic], not an approved machine pursuant to Section 316.1931, Florida Statutes.

The appellees, as did the trial court, rely on Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (Pa.1986). In McGinnis, the defendant was arrested for operating a motor vehicle while driving under the influence of alcohol. A Breathalyzer test was administered, and the defendant attempted to have the results of the test suppressed, arguing that the test was conducted on a machine not approved by the Department of Health. The machine had been modified prior to use. The Supreme Court of Pennsylvania reversed the judgment of sentence and discharged the defendant, finding that while the unmodified machine was an approved testing device, it was uncontroverted that the modified machine was not approved by the Department of Health.

Under the rationale of McGinnis, the trial court, confronted with conflicting evidence, could properly determine as a factual matter that the chemical breath tests were inadmissible because the substantially modified 1-3000 machine was not approved by HRS.

State v. Flood, 523 So.2d 1180, 1181-82 (Fla.App. 5 Dist.1988). Here, in Wilson’s case the district court in a thorough, all-encompassing written findings of fact likewise concluded that the Intoximeter 3000 following modification was not thereafter recertified.

The Florida court in Flood also observed that “presumptions are rebuttable, and a defendant may in any proceeding attack the reliability of the testing procedures.” 523 So.2d at 1182. The issue on appeal there, as here, narrowed down to ascertaining whether there “was, therefore, substantial competent evidence to support the county court’s conclusion that the 1-3000 recognized further testing.”

THE LEWISTON POLICE DEPARTMENT WAS NOT A LABORATORY APPROVED FOR FORENSIC ALCOHOL TESTING.

Part III of Justice Johnson’s opinion concludes that the trial court in making its findings of fact and conclusions of law “should not have continued to rely on the stipulation ... that the Lewiston Police Department was not an approved or certified ... testing laboratory.” His conclusion is arrived at by reason of a State’s motion for reconsideration which “advised *779the trial court that it (the State) had been mistaken and that the Lewiston Police Department was (had been at times pertinent) an approved laboratory.”

The problem with such an approach and conclusion is two-fold. First, Idaho case law does recognize that stipulations may be entered into by mistake. But, because stipulations are solemnly entered into, case law also recognizes that they may not be simply disregarded, but the practice requires that a party wishing to be relieved of a stipulation must be ready to show not just that the stipulation was mistakenly entered into but, that it was an excusable mistake, and not the product of lack of reasonable diligence. Second, it must prove that in fact a mistake was made.

Here, there can be no doubting that the trial judge was not presented with a motion to set aside the stipulation, nor with any supporting affidavits showing that the mistake was inadvertent and occurred notwithstanding due diligence on the part of the State. Loughrey v. Weitzel, 94 Idaho 833, 498 P.2d 1306 (1972), “The denial by the district court of her (Emma Weitzel) motion to set aside the stipulation and reopen the case was a matter within the sound judicial discretion of that court.” Emma Weitzel was a pro se litigant who as such had sitpulated to a dismissal of her appeal from probate court to district court. The state of Idaho, in contrast, is the largest governmental body in Idaho, and here was acting by a prosecuting attorney aided by the Department of Law Enforcement, Department of Health and Welfare, and a substantial corporation (CalDetect, the manufacturer and purveyor of intoximeters), and on appeal, at least, the well-staffed office of the Attorney General for the state of Idaho.2

In Call v. Marler, 89 Idaho 120, 403 P.2d 588 (1965), the parties orally at trial reached a stipulation, which the trial court repeated, to them: “THE COURT: The record will show that you gentlemen have stipulated that W.W. Dillard and Essie Dillard have been residents of California dur-

ing the terms — times in question in the cross complaint.” Call, 89 Idaho at 127, 403 P.2d at 591. The report of that case provides no indication that any motion was made to be relieved of that stipulation. The stipulation was contrary to a pretrial conference order, but the stipulation prevailed and was held to modify the order. 89 Idaho at 127, 403 P.2d at 591. This Court took the time to note, however, that “a court may in its sound discretion relieve against a stipulation entered into mistake or misunderstanding of fact or entered into inadvertently, inadvisedly, or improvidently where under all the circumstances its enforcement would work an injustice.” 89 Idaho at 127, 403 P.2d at 591. Again, as here, there was not such motion filed. As here, too, there was not in Call v. Marler any showing of excusable mistake.

In State v. Enking, 59 Idaho 321, 82 P.2d 649 (1938) this Court, where relief from a stipulation had been moved for in the trial court, which was denied, held insufficient the supporting grounds that the movants were not aware of the fact that the appointment of Idaho Fruit and Vegetable Advertising Commissioners was made before the act creating that commission became effective. Here “the State” in one of its component parts, Mr. Groff, head of Health and Welfare Bureau of Laboratories, was aware of the list of approved labs, which list was in his office.

In a more recent case, where the parties stipulated to a change of venue from Lemhi to Bonneville County, the trial court on motion relieved one party from the stipulation and transferred venue back to Lemhi County, consolidating the case with others and saving costs. This Court affirmed. Thompson v. Turner, 98 Idaho 110, 558 P.2d 1071 (1977).

In Singleton v. Pichon, 102 Idaho 588, 635 P.2d 254 (1981), Justice Shepard writing for a unanimous Court, noted very tersely, “The stipulation agreeing to submit the matter to this Court for its decision without trial and upon the then existing record is clear and without equivocation. *780The trial court’s refusal to relieve counsel (and his client) of that stipulation was within the exercise of its discretion and we find no abuse of that discretion.” 102 Idaho at 589, 635 P.2d 254.

The State in this case, in all of its component parts, even had it moved to be relieved of its stipulation, would be hard pressed indeed to exhibit any justification for its mistake. The best that I can make of the State’s position is that it, in the person of its prosecutor, simply failed to make inquiry of the most knowledgeable person in charge, in Boise, Richard Groff. It is only necessary to display two paragraphs of the affidavit of the prosecuting officer handling the case:

4. That in preparation for the argument and briefing on defendant’s second Motion to Suppress, the State contacted representatives of the Lewiston Police Department and Robert J. Martin of the Idaho State Department of Health and Welfare Forensic Laboratory in Coeur d’Alene, who is responsible for the calibration and certification of the Intoximeter 3000 located at the Lewiston Police Department, and inquired of both whether the Lewiston Police Department was a laboratory under Idaho Code Section 18-8004(4).

5. The State was informed at that time that to the best of these sources’ knowledge, the Lewiston Police Department was not a laboratory.

R., Vol. II, 109. Only after receiving the adverse oral ruling on October 27, 1987, which Justice Johnson mentions, did the State make what was at all times the easy effort to contact a readily available source, in fact, a veritable fountain of information. From that same affidavit:

7. That after the court’s ruling granting defendant’s second Motion to Suppress dated October 27, 1987, the State contacted Richard Groff, Supervising Criminalist for the Bureau of Laboratories of the Department of Health and Welfare, who informed your affiant that he had in his possession, what is attached hereto and marked as EXHIBIT “A”, a list showing the Lewiston Police Department to be a certified laboratory for breath testing only.

R., Vol. II, 109. That affidavit is dated October 30, 1987, hence within three short days of obtaining the adverse ruling, and the affiant had no trouble in getting the list sent to him in Lewiston. No explanation was ever tendered for not having obtained the list in time for the suppression hearing.

The trial judge who presided has been at the practice of law for over forty years. It is not surprising that he also knows that stipulations once made are controlling until, on motion, a party is relieved therefrom. Surely no one will suggest that a fair and impartial judge would ignore the State’s failure to move for relief. The judge, if deeming himself part of “the State” might have advised “the State” of the need to have the stipulation set aside. In a criminal action, the trial court cannot take sides.

Moreover, the Lewiston Police Department is not on the list of approved forensic alcohol laboratories. There are only nine forensic alcohol laboratories, which consist of six major hospitals in the state, and state-operated labs in Boise, Pocatello, and Coeur d’Alene. See Exhibit A to the affidavit of the prosecutor, copy of which is attached hereto as Appendix A.

Of more importance note from the exhibit that in all of the “SITES CERTIFIED FOR BREATH ONLY,” there are no “Laboratory Supervisors” as such are indicated as to the forensic alcohol laboratories, but rather there are just plain “supervisors,” all of whom are either county sheriffs or police chiefs, other than Mountain Home which has an officer-in-charge. The State presented no evidence that any of those forty or more sheriffs are lab technicians.

Note also that Bob Martin is the supervisor of the state-operated laboratory at Coeur d’Alene. He is also one and the same as Robert J. Martin, referred to in the prosecutor’s affidavit, paragraphs (4) and (5) of which appear above. He, Bob Martin (aa Robert J. Martin), full well knew what *781he was about when he told “the State”3 that the Lewiston Police Department was not a laboratory. Mr. Martin is also notably reported as being a laboratory supervisor, in charge of the Coeur d’Alene office, whose duties included being responsible for the calibration and certification of the Intoximeter located at the Lewiston Police Department.

Richard Groff, the possessor of Exhibit A, actually stated nothing whatever in connection with this facet of the case. At best, he is reputed as having told the prosecutor that he “had in his possession ... a list showing the Lewiston Police Department to be a certified laboratory for breath testing only.”

Clearly the trial court was correct in ignoring the State’s suggestion that he hold a second hearing on this issue at which new evidence could be introduced. One trial of an issue is ordinarily enough. Absent a well grounded motion to be relieved of the stipulation, the trial court was not in error in proceeding to enter his thorough, thoughtful, and well-worded set of findings of fact and conclusions of law. It would be error on the part of an appellate court to interfere under the circumstances here presented.

Moreover, it is suggested that there is no reason why this Court should treat this case differently from any other. The State, it is likely true, dislikes losing. But here it has earned its loss, and as all practitioners learn, there is much to be learned in losing. As we were informed at oral argument, when the State took this appeal from the interlocutory order of suppression, it had no obligation to do so — purely a matter of choice by the deputy attorney general who filed the notice. We were advised that no stipulation was obtained from the defense to waive the right to a speedy trial while this narrow issue was pursued. Many are the defendants who have been convicted of DUI on the testimony of observing witnesses, including law enforcement officers. As stated, a calculated choice was made in Boise, albeit perhaps at the prosecutor’s request being of no moment. On the state of the record, the decision to appeal from the suppression order was made, instead of going on to trial, was questionable. A majority of this Court may be seen by the trial bench and bar as coming to the rescue of the State, if the trial court ruling is overturned.

THE BASIC ISSUE AT STAKE HERE IS WHETHER THE INTOXIMETER AS MODIFIED IS RELIABLE — NOT WHETHER IT HAS BEEN APPROVED.

JUSTICE JOHNSON: Just to wrap up this dialogue which is puzzling to me because what I hear you arguing for is that we should, by our decisions, supplant the authority that was given to the Department of Health and Welfare to determine the approval of the instrument to be used for breath testing and allow the district courts of this state to become the final authority on what is the approved equipment. Now, if I have mischaracterized your argument, I hope you’ll correct me.

MR. CLARK: Well, I think that the issue is that the court, as far as admissibility of evidence, is always the final authority; and whether or not the Department of Health and Welfare or any other agency has properly followed its delegated responsibility from the Legislature, as far as whether the evidence is going to be admitted, and whether they have acted properly pursuant to their authority, is generally a question ultimately for a court, and ultimately for this Court. I think the issue, as I perceive it right now, is larger than the narrow issue before Judge Ponack. I think that there is an alternate grounds here that this Court should consider also in deciding this, and that is whether or not the Lewiston Police Department was an approved laboratory, because the regulations and the statute *782both require that the Lewiston Police Department be an approved laboratory. The Officer Stewart — the only officer that testified at the time of the hearing testified that he wasn’t aware any place in the Lewiston Police Department was designated by the Department of Health and Welfare as a forensic laboratory. The court in its findings said, based on stipulation of the state in open court, that the court finds the Lewiston Police Department and its premises was not at the time of the defendant’s arrest an approved or certified breath alcohol testing laboratory. Now the regulations of the Department of Health and Welfare said that a list had to be sent out to various agencies to say which was approved or what wasn’t approved. In the affidavit of the state, it’s clerk’s record 109, says that in preparation for the argument on our motion that the state contacted representatives of the Lewiston Police Department, Robert J. Martin of the Idaho Department of H & W and the forensic laboratory in Coeur d’Alene who is responsible for the calibration and certification of this machine that was located at the Lewiston Police Department, and inquired of both whether the Lewiston was an approved facility and the state was informed at that time that to the best of these sources’ knowledge the Lewiston Police Department was not a laboratory.

JUSTICE JOHNSON: Mr. Clark, I need to follow-up on one procedural matter. After the trial court’s initial decision in this matter, the state presented the list of approved laboratories and then there were further hearings, or a hearing at least, and then as I read the record, the trial court issued its findings in which it said plaintiff’s counsel having stipulated in argument, the court finds that Lewiston Police Department and its premises was not at the time of the defendant’s arrest an approved or certified direct breath alcohol testing laboratory. Do you read then the procedural record to indicate that in effect he rejected the offer of that list since it had been filed before those findings were issued, as I read the record.

MR. CLARK: If it was filed before the findings were issued, I think you would be right. I am not — again I would have to check the record to verify the sequence in which things were done. I know that Mr. Groff’s affidavit was filed sometime after the findings and I am not sure about that. He also had the direct testimony of Officer Stewart, the breath testing specialist, with respect to that issue also.4

Mr. Clark was eminently correct in fielding both questions from the bench during oral argument. Many are the cases this Court has heard wherein an enterprising young attorney whose grandfather was a Supreme Court Justice, successfully took many, if not most, of the State’s large agencies and departments to task for not staying within their delegated authority, or for violating their own self-promulgated rules and regulations.

A most bothersome aspect to this case, and undoubtedly a concern of the trial court, is the unusual and questionable manner in which “the State” purported to re-certify or reapprove the Intoximeters after deactivation of the Taguchi Cells. The trial *783court refrained from commenting, but there is no reason why it should go unmentioned.

The court’s findings set out the history of the certification and approval procedures taken when the Intoximeter 3000 were purchased and put into service. Specifically therein noted is the memorandum of Dr. Darrell Brock, which did so. The findings point to “the State’s” decision to deactivate the Taguchi cell, following which there was no further specific approval or certification, although the State continued to utilize the intoximeters. Findings IX and X relate how the modified instrument is inaccurate, and why.

The untold story not set out in the findings is as follows: When the decision was made by Rick Groff to eliminate the bothersome Taguchi Cell, he wrote to the manufacturer under date of June 28, 1984, his feelings, his problem, his understanding, and sending a proposed letter which he wanted Cal Detect, Inc. to send to him, attached hereto as Appendix B and Appendix C. The manufacturer obliged Mr. Groff, and wrote the letter on its stationery, the President signing the same, a copy of which is attached hereto as Appendix D.

This procedure of telling the manufacturer what to write to Health and Welfare is unacceptable. The manufacturer does not say that it has done any testing which allows it to write the letter which goes into Mr. Groff’s file. Nor is there any showing that Mr. Groff or anyone for the state of Idaho has done any such testing.

It all comes back to the assertion found in the State’s brief, page 16, “Mr. Groff, manager of the Forensic Section of the Idaho Department of Health and Welfare’s Bureau of Laboratories, testified that the management of the bureau felt that certification of the Intoximeter 3000 after deactivation of the Taguchi Cell was not required.” R., 162-164. That “testimony” was not testimony given in Judge Ponack’s court — which raises another interesting issue which Justice Johnson’s opinion does not discuss. The so-called testimony was given in another case before another judge. It was transcribed, however, and a copy of the transcription was filed in the record in Wilson’s case, being attached as an exhibit to the prosecutor’s affidavit filed in support of the prosecutor’s motion for reconsideration. The motion itself had best be exposed in its entirety:

COMES NOW, David E. Dokken, Deputy Prosecuting Attorney for Nez Perce County, Idaho, and moves the above-entitled Court for an order to reconsider it’s order on defendant’s second Motion to Suppress filed on February 29, 1988.

Said motion is made and based upon the grounds that new evidence has come to light as evidenced by the State’s Affidavit in support of this motion in which the State feels would have substantial bearing on the Judge’s initial ruling in this case, as follows:

1. That as indicated by the affidavit attached to the State’s first Motion for Reconsideration, the Lewiston City Police Department is a certified laboratory.

2. That Richard Groff, Supervising Criminalist for the Bureau of Laboratories of the Department of Health and Welfare would testify that the deactivation of the Taguchi Cell would not modify the technical configuration of the Intoximeter 3000.

3. That Richard Groff would testify that for all times relevant to the instant case, the Intoximeter 3000 was the approved direct breath testing device in the State of Idaho.

The State further requests oral argument and the opportunity to present more briefing and evidence on this defendant’s second Motion to Suppress.

R., 137-138. It is readily observed that the prosecutor desired a second opportunity to prove the case which he did not put on at the hearing on the suppression motion. Desire, however, is not a street car which can take one anywhere in trying law suits. Mr. Groff had not testified in this case. He “would” testify if the court below had been willing to disregard all established rules, and let the State have a second opportunity. The trial bar will surely be at a loss to understand why it is a majority of members the Idaho Supreme Court are all *784unwilling to inquire as to the proceedings which took place.

At a hearing on March 29, 1988, with counsel present, the trial court took up the motion for reconsideration and expressed itself as to the filed and tendered transcript of Mr. Groff’s testimony:

THE COURT: I just want to make a few observations.

Mr. Dokken, perhaps you can answer what is the reluctance of the Department to recertify?

MR. DOKKEN: The Intoximeter 3000?

THE COURT: Yes.

MR. DOKKEN: Well, Your Honor, in this situation, my understanding is that as Mr. Groff testified, they truly believe that the configuration • contemplated in that memo did — wasn’t changed.

THE COURT: But they're just standing on their belief that they’re right?

MR. DOKKEN: Well, they feel their grounds of authority in this situation to approve the Intoximeter 3000 extends to what they understand their own approval to mean. And in that situation, their approval meant whether it had a keyboard or didn’t it. Since they didn’t take a keyboard away, they didn’t feel they needed to reapprove it.

THE COURT: Very well. Referring first to the transcript of the testimony of Mr. Groff, you would be asking the Court to take the testimony of another witness in another case before another judge without the benefit of cross-examination.

R., 58.

Reluctantly I am brought to the conclusion that Part II of the majority opinion may be premised largely on sheer ipse dixit wherein it is stated on page 4, “In 1985, the supervising criminalist of forensic section of the bureau of laboratories of the Department directed that the Taguchi cell on each Intoximeter in service in Idaho be deactivated.” Although there follows a seven line paragraph which may purport to justify the naked declaration, and conceding that I may be somewhat remiss in my abilities at comprehending technical matters, this supposedly explanatory paragraph only heightens my concern. In particular I refer to the statement that, “The Department has approved the Intoximeter with the Taguchi cell deactivated” which statement does not refer the reader to a supporting source.

The best which I presently can make of this circumstance is ipse dixit supported by ipse dixit. Justice Johnson makes no reference to post-deactivation of the Taguchi cell testing. He may have in mind the transcript of Mr. Groff’s testimony given in another case, but it would be inappropriate for this Court to utilize it when we know that the district court did not, and why the district court did not. That Groff transcript, I am sorry to say, appears to be the only source to which Justice Johnson must have turned. That I set out a portion of the transcript of the Groff testimony is not to be taken as my endorsement of the majority’s improper use thereof.5 Having persued it a number of times, I see it is as simply Mr. Groff’s pronouncement that the Department of Health and Welfare has free reign to do, and it approves of its handiwork. The trial bench and bar, and any interested reader — all are entitled to know from whence this approval stemmed:

“Q Now, at the time that the department made a decision to — a formal decision to deactivate the Taguchi cell, did you discuss this deactivation procedure with the manufacturer?

“A Yes, we did.

“Q Was this a strictly formal memo-to-memo type situation or were there informal contacts and conversations?

“A There was quite a bit of informal contact. Necessarily, there had to be.

“Q And before the Taguchi cell was deactivated in the State of Idaho, did you *785request instructions or concurrents from the manufacturer?

“A Yes.

“Q And did you receive concurrency in terms of that modification?

“A On two different occasions we have.

“Q All right. Now, we have already admitted into evidence, I believe, it’s Defendant’s 3 which is the memorandum from Cal Detec?

“A That’s right.

“Q This would be a letter dated in July of 1984?

“THE COURT: I’ve got 5 is from—

“MR. LAMBERT: Mr. Hudson?

“THE COURT: I have that as 5.

“MR. MUSHLITZ: 3 is that one (indicating).

“BY MR. LAMBERT:

“Q As to Defendant’s 5, the letter from Mr. Hudson of Cal Detec, do you personally know Mr. Hudson?

“A Yes.

“Q Well, first of all, what is his function with the company Cal Detec?

“A He’s no longer employed by them. But the Department of Health and Welfare?

“THE WITNESS: You’re asking me the question?

“THE COURT: Yes.

“THE WITNESS: Yes.

“MR. MUSHLITZ: Your Honor, I would mention that he has previously testified that it was approved in the configurations with the Taguchi cell in operation, identified that approval as that exhibit, and said there hasn’t been anything subsequent.

“THE COURT: I heard his testimony. Now, you heard counsel’s last comments.

“THE WITNESS: Yes, I did.

“THE COURT: You responded earlier, I believe, to counsel by saying that there had been no approval of any new configuration; is that correct?

“THE WITNESS: Had we re-approved it and I said yes. He asked me that and I said no.

“THE COURT: That you had not re-approved changing configuration?

“THE WITNESS: Correct.

“THE COURT: Now, in fact, that particular response is consistent with your response that at this point in time, Mr. Hudson was the one who developed the prototype of the Intoximeter 3000 as president of Cal Detec, and he was still president of that corporation.

“Q Did you solicit from Cal Detec a procedure or an approval?

“A Yes, I did.

“Q And does that memo adequately reflect the correspondence between yourself and Mr. Hudson at that time?

“A At that time, yes, it does.

“Q Based upon that and your own test, the policy decision to deactivate the Taguchi cell was made?

“A Yes.

“Q Subsequent to that time, have you received any other correspondence—

“THE COURT: Excuse me. While we’re right there, let me just ask one quick question. The decision to deactivate the Taguchi resulted in having a new machine, arguably anyhow. Now, it’s a different thing that’s come about. Let’s refer to that deactivated — the Intoximeter 3000 without the Taguchi cell being activated, was that instrument in that state approved by the Idaho Department of Health and Welfare approved the use of the Intoximeter without the Taguchi cell being activated; correct? I’ll say it again. Is your statement to the effect that the Health and Welfare department did not approve a changing configuration? Is that statement consistent with your statement that health and welfare did, in fact, approve the use of the Intoximeter 3000 without the Taguchi cell being activated?

“THE WITNESS: Yes, it is; but I have to explain, your Honor.

“THE COURT: Let me just ask you. Is that because configuration has nothing to *786do with whether or not the taguchi cell is activated or deactivated?

“THE WITNESS: It has to do with our — if the basis for our approval. We approve an instrument, the Intoximeter 3000. Configuration we talked about in this memo does not talk about electronic, internal electronic operation of an instrument.

“THE COURT: Again, answer my question.

“THE WITNESS: Okay.

“THE COURT: The configuration of the Intoximeter 3000 is the same with the taguchi activated or the Taguchi cell deactivated; correct?

“THE WITNESS: As I’m referring to it in this, yes.

“THE COURT: All right. We admit that once you deactivate the Taguchi cell, however, it’s, in fact, a different machine?

“THE WITNESS: Yes.

“THE COURT: However, with reference to the different machine, the Idaho Department of Health and Welfare, as I understand it, did, in fact, approve that new machine? When I say “new machine,” I mean the Intoximeter 3000 without the Taguchi cell; is that correct?

“THE WITNESS: I have to say that we didn’t feel that re-approval was necessary.

“THE COURT: Did health and welfare approve the use of the Intoximeter 3000 without the Taguchi cell being activated?

“THE WITNESS: Well, yes, of course we did.

“THE COURT: That’s what I’m trying to find out. You just told me a second ago that you didn’t feel it was necessary?

“THE WITNESS: Well, I guess you’re asking me yes or no questions; and I just can’t amplify. I’m sorry. And I think we’re talking in different terms.

“THE COURT: Let’s try to work that out. First of all, we’re in agreement that the term ‘configuration’ does not or is not affected by whether or not the taguchi cell is activated or deactivated. Configuration means a choice of options, for instance, like a keyboard; is that correct?

“THE WITNESS: Yes.

“THE COURT: Now, there came a time when there was some discussion about whether or not the Intoximeter 3000 should be used without the Taguchi cell in operation; is that correct?

“THE WITNESS: Correct.

“THE COURT: A decision was made by the Idaho Department of Health and Welfare to deactivate the Taguchi cell from the Intoximeter 3000; is that correct?

“THE WITNESS: That’s correct.

“THE COURT: You were then using an Intoximeter 3000 without a Taguchi cell being activated. I want to know if that particular instrument, if the use of that instrument was approved by the Department of Health and Welfare? And if you can’t answer it “yes” or “no,” answer it in any way you’d like.

“THE WITNESS: Okay. Yes, it was approved by Health and Welfare; but it’s not a simple yes or no question. Its original approval, as I’ve talked about, was not based on some specific electronic exact arrangement. That’s changed several times over past years. What we did is to approve, in fact, to my knowledge, the exact configuration that was approved. The options that were approved is not written down, anyway. I would have to guess what those are. But what we did is to approve a device for breath testing in Idaho which both the law requires us to and our own rules and regulations require us to, and we felt like and feel like we’ve approved that instrument. We can make changes in it as long as the instrument is still approved by us at our option. We have done that. I’m answering, yes, we have made changes and they were approved because we feel like they were really not a part of our approval process. We approved it as a device, the Intoximeter 3000, for use in Idaho. The manufacturer has made numerous changes in it, and we’ve made one ourselves.

“THE COURT: And so the change that we have in the Intoximeter 3000 that was *787used in this case was the elimination of an active Taguchi cell; correct?

“THE WITNESS: That’s one of the changes.

“THE COURT: And that was approved by Health and Welfare?

“THE WITNESS: Yes.

“THE COURT: You did not approve the elimination of the infrared detection unit from the Intoximeter 3000? As I understand it, the Intoximeter 3000 has two aspects to it, an infrared detection unit; is that correct?

“THE WITNESS: That’s correct.

“THE COURT: And a test for acetone and I think that’s what we call the Taguchi cell; is that right?

“THE WITNESS: Yes.

“THE COURT: Did health and welfare at the time and place in question and that is when?

“MR. LAMBERT: April 18, 1985.

“THE COURT: April 18, 1985, approve the Intoximeter 3000 without the Taguchi cell being activated?

“MR. MUSHLITZ: Could we clarify? Are you requesting whether or not they formally approved it in writing or whether or not there was some discussion?

“THE COURT: Was its use approved? Let me ask it this way. Was its use approved by the Idaho Department of Health and Welfare?

“THE WITNESS: Yes, it was. We made the changes, initiated the memo. Yes, it was.

“THE COURT: All right. Now, that particular change that you approved was discussed by various people including yourself and the Idaho Department of Health and Welfare; is that correct?

“THE WITNESS: That’s correct.

“THE COURT: Did the supervisor of blood and breath alcohol testing of the forensic section approve the use of the Intoximeter 3000 without the Taguchi cell being activated?

“THE WITNESS: Yes, he did. He wrote — I don’t know if any of them are here today, but he wrote several memos in that regard; and he was actively involved in making those changes on the instrument.

“THE COURT: And, in fact, did the Department of Health and Welfare develop a procedure by which that change would be accomplished?

“THE WITNESS: Yes.

“THE COURT: And to your knowledge, was that procedure adopted in this particular case with reference to 1401?

“THE WITNESS: It was done statewide; so I’m sure it was, your Honor, although I was not directory involved.

“THE COURT: You may proceed.

“MR. LAMBERT: Your Honor, I have no other questions at this time; and I would reserve the right to re-call Mr. Groff at a future time.

“THE COURT: Thank you. You may proceed.

“MR. MUSHLITZ: May I approach the bench?

“THE COURT: Yes.”

)IX A

Revised: January 1987

1987 FORENSIC ALCOHOL LABORATORIES

LABS CERTIFIED FOR BLOOD. BREATH. AND URINE

Boise Forensic Lab Supervisor — Rick Groff Methods used: Gas Chromatography and/or Smith-Widmark

Pocatello Forensic Lab Supervisor — Don Wyckoff Methods used: (Same)

Coeur d’Alene Forensic Lab Supervisor — Bob Martin Methods used: (Same)

LABS CERTIFIED FOR BLOOD AND URINE

Bannock Memorial — Pocatello Laboratory Supervisor Methods used: Enzyme

Bingham Memorial — Blackfoot Laboratory Supervisor Methods used: Enzyme

*788Magic Valley Regional Medical Center — Twin Falls

Laboratory Supervisor

Methods used: Enzyme

St. Alphonsus — Boise Riverview — Idaho Falls Pocatello Regional Medical Center Laboratory Supervisor Laboratory Supervisor Laboratory Supervisor Methods used: Enzyme Methods used: Enzyme Methods used: Enzyme

SITES CERTIFIED FOR BREATH ONLY Ada County/Boise Police Dept. Supervisor — Sheriff Methods used: Intoximeter 3000 & Intoxilyzer 5000

Adams CSO/Council P.D.

Arco P.D.

Bannock County/Pocatello P.D.

Benewah CSO/St. Maries P.D.

Bingham County/Blaekfoot P.D.

Blaine CSO/Hailey P.D.

Boise County

Bonner County/Sandpoint P.D.

Bonneville County/Idaho Falls P.D.

Boundary County/Bonners Ferry P.D.

Buhl Police Dept.

Canyon County/Caldwell P.D.

Caribou County/Soda Springs P.D.

Cassia County/Burley P.D.

Clark County/Dubois

Clearwater County/Orofino P.D.

Coeur d’Alene Police Dept.

Custer County

Elmore County/Mt. Home P.D.

Fort Hall Police Dept.

Franklin County/Preston P.D.

Freemont County/St. Anthony P.D.

Gem County/Emmett P.D.

Gooding County/Gooding P.D.

Grangeville Police Dept.

Horseshoe Bend P.D.

Idaho County/Kooskia P.D.

Jefferson County/Rigby P.D.

Jerome County/Jerome P.D.

Kellogg Police Dept.

Ketchum P.D./Blaine County

Kootenai County

Latah County/Moscow P.D.

Lewis County/Nez Perce P.D.

Lewiston Police Dept.

McCall Police Dept.

Minidoka County/Rupert P.D.

MHAFB/Mountain Home

Nampa Police Dept.

Oneida County

Owyhee County

Payette County/Payette P.D.

Power County/American Falls P.D.

Rathdrum Police Dept.

Rexburg P.D./Madison County

Salmon P.D./Lemhi County

Shelley Police Dept.

Shoshone County/Wallace P.D.

Shoshone P.D./Lincoln County

Teton County

Twin Falls County

Valley County/Cascade P.D.

Weiser Police Dept.

Supervisor — Sheriff

Supervisor — Chief

Supervisor — Sheriff

Supervisor — Sheriff Supervisor-Sheriff

Supervisor-Sheriff

Supervisor-Sheriff 0Supervisor-Chief

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Officer in charge

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Supervisor-Sheriff

Supervisor-Chief

Methods used: Aleo-Sensor III only