DA 13-0641

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 287

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

CASEY JAMES POITRAS,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause Nos. DC 13-252 and DC 12-0412

Honorable Edward P. McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Wade Zolynski, Chief Appellate Defender, Chad R. Vanisko, Assistant 

Appellate Defender, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Bureau 

Chief, Appellate Services Bureau, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy

County Attorney, Missoula, Montana

Submitted on Briefs: September 2, 2015

 Decided: October 6, 2015

Filed:

__________________________________________

Clerk

October 6 2015

Case Number: DA 13-0641
2

Justice Laurie McKinnon delivered the Opinion of the Court. 

¶1 Casey James Poitras appeals from an order of the Fourth Judicial District Court, 

Missoula County, denying Poitras’s motion to suppress the results of his breath test. 

Poitras was arrested for suspicion of driving under the influence of alcohol and provided 

a breath sample on an Intoxilyzer 8000. In Justice Court, Poitras moved to bar the 

admission of the results of his breath sample on the basis that insufficient foundation 

existed to conclude that the instrument and the instrument operator were properly 

recertified pursuant to various sections of the Administrative Rules of Montana. The 

Justice Court granted Poitras’s motion to suppress over the State’s objection, and the 

State appealed the ruling to District Court. The District Court reversed, concluding that 

sufficient foundation existed to admit the results of Poitras’s breath test under the 

administrative rules. On appeal to this Court, Poitras challenges the District Court’s 

conclusion that sufficient foundation existed to admit the breath test results. We affirm 

the decision of the District Court. 

¶2 We address the following issue on appeal: whether the District Court abused its 

discretion by concluding that sufficient foundation existed to admit the results of 

Poitras’s breath test. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On May 19, 2012, Poitras was arrested for suspicion of driving under the influence 

of alcohol or drugs (DUI) in violation of § 61-8-401, MCA. As part of the DUI 
3

investigation, Poitras submitted to a breath test on an Intoxilyzer 8000. The Intoxilyzer 

registered a blood alcohol concentration of 0.149 percent. 

¶4 Poitras moved to bar the admission of the results of his breath test in Justice 

Court.

1

 Poitras’s challenge to the introduction of the evidence centered on whether 

Missoula County’s two senior operators, Officers Glenville Kedie (Senior Operator 

Kedie) and Jace Dicken (Senior Operator Dicken), who are tasked with recertifying all of 

the Intoxilyzers and Intoxilyzer operators in Missoula County, were themselves properly 

recertified as senior operators in accordance with the Administrative Rules of Montana. 

The State provided documentation showing that Senior Operator Kedie and Senior 

Operator Dicken had successfully completed their recertification examinations on 

January 12, 2012, and January 18, 2012, respectively, and were issued new recertification 

permits on January 31, 2012. However, the State did not provide documentation or 

testimony specifying when either of the two senior operators had taken their 

recertification examinations in the preceding years. Poitras argued that the State needed 

to introduce this evidence in order to show that Senior Operators Kedie and Dicken were 

properly recertified within 365 days prior to their recertification examinations in January 

2012. Consequently, Poitras asserted that the State failed to demonstrate that Senior

Operator Kedie and Senior Operator Dicken were qualified to recertify Intoxilyzers and

Intoxilyzer operators, and, in turn, all of Missoula County’s Intoxilyzers and Intoxilyzer 

operators were not properly certified when Poitras submitted to a breath test, including

 

1 The Justice Court is not a court of record. 
4

the Intoxilyzer 8000 used to take Poitras’s breath sample and the operator who 

administered the breath test. The Justice Court agreed with Poitras and granted his

motion to suppress over the State’s objection. The State appealed the Justice Court’s 

ruling to District Court.

¶5 The District Court reversed the Justice Court. The District Court concluded that 

Senior Operator Kedie’s and Senior Operator Dicken’s most recent recertification permits

constituted sufficient foundation to conclude that they were properly certified senior 

operators under the Administrative Rules of Montana when Poitras submitted to a breath 

test. The court explained that, “because the Senior Operators in this case can document 

when they took their recertification examinations and that they were issued new 

recertification permits approximately four months before the Defendant was administered 

the breath test at issue in this case,” the State provided adequate foundation to show that 

the two senior operators were properly recertified and to introduce the test results of the 

Intoxilyzer 8000. After the court denied Poitras’s motion, he pled guilty to DUI and the 

court sentenced him to a six-month sentence, with all but 24 hours suspended. Poitras 

reserved his right to appeal the denial of his motion to suppress.

¶6 Poitras now appeals. 

STANDARD OF REVIEW

¶7 If a party appeals from a justice court that is not a court of record the district 

court’s review is de novo. McDunn v. Arnold, 2013 MT 138, ¶ 12, 370 Mont. 270, 303 

P.3d 1279. A district court’s determination of whether sufficient foundation exists for the 
5

admissibility of evidence is within the sound discretion of the court, and the court’s 

determination will not be overturned absent a showing of abuse of discretion. State v. 

Delaney, 1999 MT 317, ¶ 6, 297 Mont. 263, 991 P.2d 461.

DISCUSSION

¶8 Whether the District Court abused its discretion by concluding that sufficient 

foundation existed to admit the results of Poitras’s breath test.

¶9 We have previously held that when a person is charged with an alcohol related 

driving offense the State “must lay a proper foundation for the admission of the results of 

alcohol concentration breath analysis.” State v. White, 2009 MT 26, ¶ 10, 349 Mont. 109, 

201 P.3d 80 (overruled in part on other grounds by State v. Jenkins, 2011 MT 287, 362 

Mont. 481, 265 P.3d 643). Section 61-8-404(1)(b), MCA, provides that a report of the 

results of a person’s breath test is admissible in evidence if the “test was performed by a 

person certified by the forensic sciences division of the department to administer the 

test.” Section 61-8-405(5), MCA, further provides that the Department of Justice in 

cooperation with any appropriate agency “shall adopt uniform rules for the giving of tests 

and may require certification of training to administer the tests as considered necessary.”

¶10 The Forensic Science Division (Division) of the Department of Justice, in 

accordance with its duty under § 61-8-405(5), MCA, has promulgated administrative 

rules that closely regulate the breath test analysis instruments that are used in determining 

blood alcohol concentration as well as the qualifications of the personnel that operate 

those instruments. See Admin. R. M. 23.4.201 through 225. The administrative rules 
6

divide the personnel operating the instruments into two basic categories: (1) “operators”

who are qualified only to administer breath tests to persons suspected of DUI; and

(2) “senior operators” who are qualified to recertify the breath-test instruments, teach 

recertification courses, and issue recertification permits to operators. Admin. R. M. 

23.4.201(13), 216 (2007). The breath-test instruments and the operators must be 

regularly recertified by properly certified senior operators. Admin. R. M. 23.4.213(1), 

217(2) (2007). 

¶11 The administrative rules require that senior operators pass annual recertification 

exams to maintain their certifications. Admin. R. M. 23.4.217 (2007). Specifically, 

senior operators must submit to a recertification examination every 365 days. Admin. R. 

M. 23.4.217(8) (2007). A senior operator’s permit “expires the last day of the month, in 

the following year in which [he or she] was certified.” Admin. R. M. 23.4.217(4) (2007). 

However, a senior operator is given a 90 day grace period to renew after the expiration of 

his or her permit pursuant to Admin. R. M. 23.4.217(11) (2007), which states, in part,

that a senior operator “must successfully pass a recertification course within 90 days after 

his/her expiration date.” If a senior operator “fails to recertify within the specified time 

frame, he/she must either attend an initial certification course or file a request, in writing,

for an exemption.” Admin. R. M. 23.4.217(12) (2007).

¶12 Poitras argues that his breath test results were inadmissible for lack of foundation 

and the District Court erred by concluding otherwise. Poitras contends that Senior 

Operators Kedie’s and Dicken’s most recent recertification permits are insufficient 
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foundation to demonstrate that they were properly recertified in accordance with the 

administrative rules. Poitras theorizes that Senior Operators Kedie’s and Dicken’s

certifications could have expired and the grace period could have lapsed prior to the 

successful completion of their respective recertification examinations in January 2012,

which under Admin. R. M. 23.4.217(12) (2007) would have required them to either 

attend an initial certification course or file a request to the Division for an exemption, 

rather than merely taking a recertification exam, to maintain their certifications.2 He

reasons that the “State offered no testimony or evidence as to what specific dates any 

senior operators may have taken recertification tests for the 2011 calendar year” and “can 

only show that Senior Operators Kedie and Dicken respectively took their 2012 

recertification exams on January 12 and 18, 2012, which without knowing when they 

took the 2011 exams, says nothing about whether they were outside of the 365 + 90 day 

timeframe when doing so.” Poitras argues further that “[t]his lack of record keeping not 

only invalidates senior operator certifications, but also all other certifications relying on 

those, such as certification of the Intoxilyzer machine, the field location, and operators.” 

¶13 The State responds that the “exactitude in proving up the history of certifications, 

in the manner Poitras advocates, is an attempt to elevate form over substance.” The State 

argues that Senior Operators Kedie’s and Dicken’s most recent recertification permits

constitute sufficient foundation to admit the results of Poitras’s breath test under the 

 

2 The State does not contend, nor is there evidence in the record, that either senior operator 

requested an exemption from the Division or took an initial certification course in 2012. 
8

administrative rules. The State reasons that it provided the exact date Senior Operators

Kedie and Dicken were recertified in January 2012, which adequately demonstrates that

they were recertified as senior operators for a period of 365 days forward under Admin. 

R. M. 23.4.217(8) (2007), including May 19, 2012, the day Poitras provided a breath 

sample. The State argues further that pursuant § 26-1-602, MCA, federal and state 

officials are presumed to regularly perform their duties, and the Division’s issuance of the 

recertification permits, absent other contradictory evidence, adequately demonstrates that 

Senior Operators Kedie and Dicken were certified senior operators during the relevant 

time period.3

¶14 We agree with the State that sufficient foundation was laid to introduce Poitras’s 

breath test results under the Administrative Rules of Montana. The State provided

evidence showing that Senior Operator Kedie and Senior Operator Dicken took their 

recertification exams in January 2012 at the direction of the Division; Senior Operator 

Kedie and Senior Operator Dicken successfully passed their recertification exams on 

January 12, 2012, and January 18, 2012, respectively; and the Division issued Senior 

Operator Kedie and Senior Operator Dicken recertification permits on January 31, 2012. 

 

3 The State also advances two alternative arguments. First, the State argues that even if the 

administrative rules were not complied with the District Court may still admit the breath test 

results. Second, the State argues that even if Senior Operators Kedie’s and Dicken’s 

certifications expired pursuant to the administrative rules that were in effect when they passed 

their recertification exams in January 2012 an Emergency Rule promulgated by the Division 

retroactively reinstated their certifications. See Admin. R. M. 23.4.217 (Feb. 15, 2012). Because 

we conclude herein that the State provided sufficient foundation to demonstrate that the two 

senior operators’ certifications did not expire, we do not address the State’s alternative 

arguments.
9

Further, all of this occurred approximately four months prior to Poitras’s breath test on 

May 19, 2012. While Poitras is correct that the State did not introduce evidence showing 

the exact date when Senior Operators Kedie and Dicken completed recertification exams 

in the preceding years, the State did provide foundational evidence showing that they

were certified in accordance with the administrative rules when Poitras submitted to his 

breath test. 

¶15 Furthermore, Poitras failed to present contrary evidence casting doubt on Senior 

Operators Kedie’s and Dicken’s certification credentials. Section 26-1-602, MCA, 

provides a statutory presumption that an official duty has been regularly performed, and 

such presumption is satisfactory proof of the fact, if uncontradicted. See Miners & 

Merchants Bank v. Dowdall, 158 Mont. 142, 157, 489 P.2d 1274, 1282 (1971). Although 

Poitras argues that Senior Operators Kedie’s and Dicken’s certifications could have 

expired and the 90 day grace period could have lapsed prior to their successful

completion of the recertification examinations, Poitras presented no evidence through 

affidavit or testimony to support his theory. In light of the fact that the State provided 

evidence showing Senior Operators Kedie and Dicken were properly recertified in 

January 2012, we will not presume that they failed to recertify in accordance with the 

administrative rules prior to that time. Given the uncontradicted evidence presented by 

the State, sufficient foundation was laid for the District Court to conclude that Senior 

Operators Kedie and Dicken were certified senior operators pursuant to the 

administrative rules when Poitras submitted to a breath test. 
10

¶16 Nonetheless, Poitras persists that this Court’s decision in State v. Frickey, 2006 

MT 122, 332 Mont. 255, 136 P.3d 558, requires that we arrive at a different conclusion. 

We disagree. In Frickey, we concluded that the Intoxilyzer used to collect Frickey’s 

breath sample had not been properly recertified in accordance with the administrative 

rules. Frickey, ¶ 20. In that case, the State and Frickey agreed that the Intoxilyzer used 

to collect her breath sample had not been recertified for over 13 months at the time she 

submitted to a breath test. Frickey, ¶ 14. However, the State argued that under the 

administrative rules the Intoxilyzer need only be recertified once in a calendar year. 

Frickey, ¶ 13. This Court rejected the State’s argument, concluding that as a matter of 

law the administrative rules required the Intoxilyzer to be recertified every 365 days. 

Frickey, ¶ 17. We accordingly held that Frickey’s breath test results were inadmissible 

because more than 13 months had elapsed since the last recertification. Frickey, ¶ 20. 

¶17 The instant case is readily distinguishable from Frickey. In Frickey, the State did 

not provide any evidence showing the Intoxilyzer was in compliance with the 

administrative rules. There, the record conclusively established that the Intoxilyzer had 

failed to be recertified within 365 days as required by the administrative rules. Frickey, 

¶ 20. Here, in contrast, the State presented uncontradicted evidence that the Intoxilyzer 

was properly recertified. The State introduced evidence that Senior Operators Kedie and 

Dicken successfully passed recertification exams in January 2012, the Division issued

each recertification permits on January 31, 2012, and Senior Operators Kedie and Dicken 

timely recertified the Intoxilyzer 8000 that was used to collect Poitras’s breath sample
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prior to him taking the breath test on May 19, 2012. Therefore, unlike in Frickey, the 

State has laid a foundation showing the Intoxilyzer was in compliance with the 

Administrative Rules of Montana when Poitras submitted to the breath test.

¶18 We conclude the District Court did not abuse its discretion when it determined a 

sufficient foundation existed to admit the results of Poitras’s breath test. We accordingly 

hold the District Court did not err in denying Poitras’s motion to suppress. 

¶19 Affirmed. 

/S/ LAURIE McKINNON

We concur: 

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER

/S/ BETH BAKER

/S/ JIM RICE