State v. Johnston
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Gavin Johnston was charged with driving under the influence of alcohol after the result of a breath test taken by a breath analysis instrument called the Intoxilyzer 8000 showed Johnston had elevated blood alcohol levels. The district court granted Johnston's motion to suppress the results of the breath test pursuant to State v. Gieser because the Intoxilyzer 8000 had not been field tested within a week of Johnston's arrest. On appeal, the Supreme Court reversed the district court's ruling, holding (1) the reference in Gieser to weekly field testing of breath analysis instruments was dicta and should not have been relied upon as authority as to how often breath analysis instruments must be field certified; and (2) the Intoxilyzer 8000 was properly certified as required by Mont. Admin. R. 23.4.213, which states that breath analysis instruments shall be field certified for accuracy at least once every thirty-one days.
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August 2 2011
DA 11-0127
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 184
STATE OF MONTANA,
Plaintiff and Appellant,
v.
GAVIN JOHNSTON,
Defendant and Appellee.
APPEAL FROM:
District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC 10-30
Honorable E. Wayne Phillips, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Steve Bullock, Montana Attorney General; Matthew T. Cochenour,
Assistant Attorney General, Helena, Montana
Thomas P. Meissner; Fergus County Attorney, Lewistown, Montana
For Appellee:
Craig R. Buehler; Attorney at Law, Lewistown, Montana
Submitted on Briefs: July 13, 2011
Decided: August 2, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1
This is an appeal by the State of Montana pursuant to § 46-20-103, MCA, from the
District Court’s order suppressing the results of a breath test in a prosecution for driving
under the influence of alcohol. We reverse.
BACKGROUND
¶2
Gavin Johnston was arrested for driving under the influence of alcohol on April
23, 2010. Johnston provided a sample of his breath to test for alcohol concentration,
using a breath analysis instrument called the Intoxilyzer 8000. The result of that breath
test showed that Johnston had a blood alcohol concentration of .12. In May, 2010 the
State charged Johnston with driving under the influence of alcohol, fourth offense,
pursuant to § 61-8-401, MCA.
¶3
The Intoxilyzer 8000 device used to test Johnston’s breath had been inspected and
calibrated by the State Forensic Science Division on April 14, 2010, and had been field
tested by the Fergus County Sheriff’s Office on April 15, 2010. Johnston’s motion to
suppress was based upon the fact that the device had not been field tested by the Fergus
County Sheriff’s Office within a week of his April 23, 2010 arrest. Johnston’s motion
was based upon this Court’s decision in State v. Gieser, 2011 MT 2, 359 Mont. 95, 248
P.3d 300, in which this Court referred to a requirement in the Administrative Rules of
Montana that breath testing machines be field inspected and calibrated on a “weekly
basis.” Gieser, ¶ 11.
2
¶4
The District Court noted that the rule governing inspection of breath analysis
instruments like the Intoxilyzer 8000 had been amended in 2007 to require field
certification every 31 days. Admin. R. M. 24.4.213. Prior to the 2007 amendment the
rule required weekly field certification. The District Court determined that the reference
to weekly certification in Gieser was an error, but that district courts are required to
follow the decisions of this Court “whether or not they agree with them.” Accordingly,
based upon the reference in Gieser to weekly certification, the District Court granted
Johnston’s motion to suppress.
STANDARD OF REVIEW
¶5
This Court reviews a district court’s ruling on a motion to suppress to determine
whether the findings of fact were clearly erroneous, and whether the interpretation and
application of law were correct. State v. Hafner, 2010 MT 233, ¶ 12, 358 Mont. 137, 243
P.3d 435.
DISCUSSION
¶6
The State of Montana closely regulates breath analysis instruments used to
determine the alcohol concentration in a person charged with an alcohol-related driving
offense. State v. Delaney, 1999 MT 317, ¶ 8, 297 Mont. 263, 991 P.2d 461.
The
Forensic Science Division of the Montana Department of Justice has adopted rules for
insuring the accuracy of breath analysis instruments, as directed by §§ 61-8-405 and
-409, MCA. See e.g. Admin. R. M. 23.4.213.
¶7
The issue in this case is whether the Intoxilyzer 8000 used to test Johnston’s
breath had been properly field certified for accuracy. The undisputed facts show that the
3
device was properly certified as required by Admin. R. M. 23.4.213, as amended in 2007.
That rule requires that “[b]reath analysis instruments shall be field certified for accuracy
at least once every 31 days,” and the device used in this case had been field certified on
April 15, 8 days prior to the April 23 arrest.
¶8
Nothing in the Gieser opinion changed the administrative rule on field
certification of breath analysis instruments, nor was any change intended. The issue in
Gieser was not how often breath analysis instruments must be certified for accuracy, but
rather whether counsel was ineffective for failing to object to admission of evidence
obtained through an instrument that had not been properly certified. There was no
question that the instrument used to test Gieser’s breath was not properly certified. This
Court incorrectly recited that the administrative rules required weekly field certification.
Gieser, ¶ 11. That statement was error because the administrative rule had been changed
in 2007 to require field certification only every 31 days, as explained above.
That
statement was dicta because the applicable time frame for field certification was not an
issue in the case. The reference in Gieser to weekly field testing of breath analysis
instruments should not be cited or relied upon as authority as to how often breath analysis
instruments must be field certified. Mont. Petroleum Tank Release Comp. Bd. v. Empire
Fire & Marine Ins. Co., 2008 MT 195, ¶ 22, 344 Mont. 54, 185 P.3d 1021.
¶9
There was similar language noting a requirement for weekly field certification of
breath analysis instruments in State v. White, 2009 MT 26, 349 Mont. 109, 201 P.3d 808.
While White was decided in 2009, the breath test at issue had been undertaken in 2006.
Therefore, the pre-2007 version of the administrative rule requiring weekly field
4
certification was applicable in White and was correctly referenced in the opinion. There
is nothing in White that makes a weekly field certification requirement applicable to
Johnston’s breath test.
¶10
The District Court’s order suppressing the evidence is reversed and this case is
remanded to the District Court for further proceedings.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
5
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