IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. AYALA

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

FRANCISCO J. AYALA, APPELLANT.

Filed April 14, 2015. No. A-14-386.

Appeal from the District Court for Scotts Bluff County: RANDALL J. LIPPSTREU, Judge, on 

appeal thereto from the County Court for Scotts Bluff County, KRISTEN D. MICKEY, Judge. 

Judgment of District Court affirmed.

Bell Island, of Island & Huff, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

BISHOP, Judge.

Francisco J. Ayala was convicted of driving under the influence (DUI), over .15. Ayala 

challenges the admissibility of his blood test, arguing that the person who tested his blood did not 

have the proper Class A permit. The question before us is whether a Class A permit for “automated 

headspace gas chromatography,” complies with 177 Neb. Admin. Code, ch. 1, § 006.04 (2009), 

which lists that one of the approved methods for a Class A permit is “gas chromatography.” We 

find that a Class A permit for automated headspace gas chromatography is a proper permit pursuant 

to § 006.04, and thus the admission of Ayala’s blood test into evidence was not an abuse of 

discretion. We therefore affirm.

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BACKGROUND

Ayala was arrested for DUI and taken to Regional West Medical Center in Scottsbluff, 

Nebraska, for a blood test. The blood sample was tested by Amy Langan, a forensic scientist with 

the Nebraska Health and Human Services Laboratory. Langan held a Class A permit authorizing 

her to perform “Automated Headspace Gas Chromatography.”

Ayala was charged with “DWI (Blood) over .15, 1st offense,” a Class W misdemeanor. 

Ayala filed a motion in limine seeking to exclude the blood test result because he alleged the blood 

was tested by a person who did not have a proper Class A permit pursuant to Title 177. At a hearing 

on the motion in limine, Ayala argued that Title 177 lists “gas chromatography” as an approved 

method for Class A permits, but forensic scientist Langan’s Class A permit states her approved 

method as “automated headspace gas chromatography”; therefore, he argues that Langan did not 

have an authorized permit under Title 177. After reviewing the evidence, the court stated “the fact 

that the permit says gas chromatography after two adjectives describing the nature of the gas 

chromatography in this court’s mind does not violate the Title 177, and specifically Section 

006.004” and to rule otherwise would be “an ultra technical and unnecessarily strict reading of 

[T]itle 177.” The county court overruled Ayala’s motion in limine.

At trial, Langan’s Class A permit came into evidence over Ayala’s objections as to 

foundation and relevance. Ayala’s blood test result of .21 grams of alcohol per 100 milliliters of 

blood came into evidence over Ayala’s objection as to foundation. Ayala was convicted by a jury 

and the county court accepted the jury’s verdict.

Ayala appealed to the district court. The district court determined that the additional words 

“automated headspace” on Langan’s Class A permit were insignificant, and “[a]ny variation 

between Title 177 and Langan’s Class A permit was insufficient to invalidate Langan’s valid 

Class A permit.” The district court therefore affirmed Ayala’s conviction.

Ayala now appeals to this court.

ASSIGNMENTS OF ERROR

Ayala assigns that the county court erred in finding that the blood test was admissible when 

the person who tested the blood did not have the proper Class A permit.

STANDARD OF REVIEW

An appellate court reviews the trial court’s conclusions with regard to evidentiary 

foundation for an abuse of discretion. State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013).

ANALYSIS

Currently, Neb. Rev. Stat. § 60-6,201 (Reissue 2010) requires that a chemical test be 

performed in accordance with the procedures approved by the Department of Health and Human 

Services Regulation and Licensure and by an individual possessing a valid permit issued by that 

department for such purpose. There are four foundational elements the State must establish for 

admissibility of a chemical test in a DUI prosecution: (1) that the testing device was working 

properly at the time of the testing, (2) that the person administering the test was qualified and held 

a valid permit, (3) that the test was properly conducted under the methods stated by the Department 

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of Health and Human Services Regulation and Licensure, and (4) that all other statutes were 

satisfied. State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008) (emphasis added). In the instant 

case, Ayala argues that his blood test was inadmissible because Langan did not hold a proper 

Class A permit.

A Class A Permit is “a permit to perform a chemical test to analyze a subject’s blood for 

alcohol content by an approved laboratory method.” 177 Neb. Admin. Code, ch. 1, § 001.08A 

(2009). The Nebraska Department of Health and Human Services issues the permit, which shall 

state the class of permit, and approved method. 177 Neb. Admin. Code, ch. 1, § 003.01 (2009). 

The list of approved methods for Class A permits are (1) Gas Chromatography, (2) Enzymatic 

Alcohol Dehydrogenase, and (3) Radiative Energy Attenuation. 177 Neb. Admin. Code, ch. 1, 

§ 006.04 (2009).

Langan has a Class A permit from the Nebraska Department of Health and Human Services 

authorizing her to analyze blood samples using “Automated Headspace Gas Chromatography.”

Langan testified that she used the gas chromatography method to analyze Ayala’s blood, and that 

the specific technique she used was “automated headspace.” She explained that “automated 

headspace” describes how to get the sample from the headspace vials onto the gas chromatograph, 

but that the instrument used to test Ayala’s blood was a gas chromatograph.

Based on our plain reading of Title 177, we agree with the county court’s finding that the 

words “automated headspace” are merely descriptive of the nature of the gas chromatography used 

by Langan and does not violate 177 Neb. Admin. Code, ch. 1, § 006.04. Because Langan held a 

proper Class A permit, the admission of Ayala’s blood test into evidence was not an abuse of 

discretion.

CONCLUSION

For the reasons stated above, we find that Langan held a proper Class A permit and thus 

the admission of Ayala’s blood test into evidence was not an abuse of discretion. Accordingly, we 

affirm the decision of the district court, which affirmed the county court.

AFFIRMED.

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