State of Utah v. Kinne

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State v. Kinne Case No. 20000891-CA



State of Utah,
Plaintiff and Appellant,


Thomas C. Kinne,
Defendant and Appellee.

(Not For Official Publication)

Case No. 20000891-CA

(December 6, 2001)

2001 UT App 373



Second District, Ogden Department
The Honorable W. Brent West

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellant
Glen W. Neeley, Ogden, for Appellee


Before Judges Jackson, Davis, and Thorne.

JACKSON, Associate Presiding Judge:

The State appeals the denial of its Motion to Reconsider, which was treated as a motion for a new trial under Rule 24 of the Utah Rules of Criminal Procedure. See State v. Johnson, 782 P.2d 533 (Utah Ct. App. 1989). We review the trial court's decision for "abuse of discretion. Any legal determinations made by the [district] court as a basis for its denial of a new trial motion are reviewed for correctness." State v. Loose, 2000 UT 11,¶8, 994 P.2d 1237.

The State challenges the district court's legal conclusion that a proper foundation for the admission of breath test results requires evidence of the accuracy and reliability of the testing instrumentality, which in this case included an intoxilyzer and a portable breath test. However, we have clearly stated that "proof of proper maintenance of a breathalyzer machine and competence of the person administering the test [are] prerequisites for admission of test results." Williams v. Schwendiman, 740 P.2d 1354, 1357 (Utah Ct. App. 1987). The State
provided no such proof. Thus, the district court correctly excluded "all of that evidence."(2)

The State also challenges the trial court's ruling that the remaining evidence "did not rise to the level of probable cause" to believe that Kinne was "under the influence of alcohol . . . to a degree that render[ed him] incapable of safely operating a vehicle." Utah Code Ann. § 41-6-44(2)(a)(ii) (Supp. 1999). We review this conclusion for correctness, "affording a measure of discretion to the trial court." State v. Wright, 1999 UT App 86,¶6, 977 P.2d 505. Having excluded all breath test results, the court was "left with" and weighed the following evidence: (1) Kinne was stopped for speeding; (2) he had slow and slurred speech; (3) he admitted to having two beers; (4) the smell of alcohol emanated from his person; and (5) he performed three inconclusive field sobriety tests.(3) The court determined that "this [evidence] did not rise to the level of probable cause . . . even giving [the State] all of the possible benefits of this particular situation." We agree, and conclude that the State failed to provide sufficient evidence to establish probable cause to believe that Kinne violated section 41-6-44(2)(a)(ii). Thus, the district court did not err in its legal conclusions, and did not abuse its discretion in denying the State's Motion to Reconsider.


Norman H. Jackson, Associate Presiding Judge



James Z. Davis, Judge

William A. Thorne, Jr., Judge


1. ¶  This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 20000891-CA issued on November 8, 2001.

2. The State contends that even if the trial court's conclusion regarding the foundational requirements for breath test results was correct, the trial court should have granted a continuance to allow the State to meet those requirements. However, "[a] trial court's decision to either grant or deny a continuance is clearly within its discretion. 'Therefore, we will not disturb such decisions absent a clear abuse of discretion.'" State v. Tolano, 2001 UT App 37,¶5, 19 P.3d 400 (citations omitted). Nothing in the record indicates the court exceeded its discretion by not granting a continuance, especially where the State did not request one.

3. The officer testified that Kinne performed a horizontal gaze nystagmus (HGN) test, a nine-step walk-and-turn test, and a one-legged stand test. Regarding the HGN test, the officer testified that Kinne exhibited four clues, but failed to testify as to what four clues he observed. Regarding the walk-and-turn test, the officer testified that Kinne exhibited six clues: he did not keep his balance while the officer instructed him on the test, missed heel to toe twice, stopped walking once, turned with the wrong foot when he walked ten steps instead of nine, and stepped off the line he was supposed to be walking on. However, the officer also testified that there was no line for Kinne to walk, and the weather was "snowy." Regarding the one-legged stand test, Kinne only exhibited one clue; he swayed. The officer failed to testify as to whether Kinne passed or failed any of these tests.