No 

No. 98-335

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 163N

STATE OF MONTANA,

Plaintiff and Respondent,

v.

REGINALD SHANE COLBY,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Mark E. Jones, Attorney at Law, Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Jennifer Anders, Assistant Attorney General, Helena, Montana

Fred R. VanValkenburg, Missoula County Attorney

Karen S. Townsend, Deputy Missoula County Attorney, Missoula, Montana

Submitted on Briefs: March 11, 1999

Decided: July 8, 1999

Filed:

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__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court.

¶2. Defendant Reginald S. Colby (Colby) appeals from the judgment and order of the 

Fourth Judicial District Court, Missoula County. 

¶3. We affirm.

¶4. We restate the issue as follows:

¶5. Whether the District Court abused its discretion in admitting the results of a 

breath test.

Standard of Review

¶6. A district court has broad discretion to determine whether evidence is relevant 

and admissible. State v. Woods (1995), 272 Mont. 220, 222, 900 P.2d 320, 321. Absent 

an abuse of discretion, we will not overturn a district court's admission of evidence. 

Woods, 272 Mont. at 222, 900 P.2d at 321.

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Factual and Procedural Background

¶7. Very early one morning in November, 1996 Montana Highway Patrol Officer 

Monzon found Colby asleep in his car in a northbound lane of traffic on Reserve 

Street in Missoula, Montana. Officer Monzon requested backup. When Officer Mills 

arrived, he observed that Colby had bloodshot eyes, that Colby's speech was 

sometimes slurred, and that Colby smelled of alcohol. Colby admitted that he had 

been drinking alcohol. Officer Mills had Colby attempt several field sobriety tests. 

Based on Colby's performance of those tests, Officer Mills concluded that Colby was 

likely under the influence of alcohol. Officer Mills also administered a preliminary 

breath test (PBT) to Colby; Colby scored a 0.127 blood alcohol content (BAC). 

Officer Mills arrested Colby and brought him to the Missoula Police Department, 

where Colby agreed to take a breath test. A device known as an Intoxilyzer 5000 

measured a BAC in Colby of 0.116. A video camera recorded Officer Mills as he read 

aloud the results of the breath test. However, the printer attached to the Intoxilyzer 

5000 malfunctioned and did not print out the breath test results. 

¶8. In May, 1997 Colby was found guilty of Operating a Motor Vehicle While Under 

the Influence of Alcohol or Drugs, 2nd Offense, a misdemeanor, in Justice Court. 

Colby appealed the judgment and verdict of the Justice Court to District Court, 

where he had a jury trial in April, 1998. At trial Colby objected that there was 

insufficient foundation for the admission of the breath test results. The District Court 

admitted the breath test results. At the close of the trial, the jury found Colby guilty 

as charged. The District Court sentenced Colby to six months jail with all but seven 

days suspended. Colby appeals from that judgment and verdict.

¶9. Whether the District Court abused its discretion in admitting the results of a 

breath test.

¶10. Colby argues that there was insufficient foundation for the Intoxilyzer 5000 

breath test results (hereafter, the breath test results). Relying on State v. Woods 

(1995), 272 Mont. 220, 900 P.2d 320, Colby argues that to admit BAC evidence, the 

State must lay a foundation showing compliance with Montana's administrative 

rules. Colby argues that in three respects, Montana's administrative rules were not 

followed. First, Colby argues that under Rule 23.4.201(31), ARM, a breath test is not 

complete until a printed record is produced. Rule 23.4.201(31), ARM, defines breath 

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analysis tests and provides that they are complete when "a final result is obtained 

and a printed record is produced by the breath test instrument." Colby argues 

further that because the Intoxilyzer 5000 did not produce a printed record of his 

breath test, the Intoxilyzer 5000 malfunctioned and his breath test results should not 

have been admitted. 

¶11. Second, Colby argues that there was insufficient foundation for the breath test 

results because the State failed to establish that the ethyl alcohol solution used to 

calibrate the Intoxilyzer 5000 met the requirements of Rule 23.4.213, ARM. Rule 

23.4.213, ARM, requires the State to certify the accuracy of breath analysis 

instruments with ethyl alcohol solutions and provides that an "ethyl alcohol solution 

will not be used for more than 20 analyses or longer than two months after its first 

date of use, which ever comes first." Rule 23.4.213(c), ARM. Finally, Colby argues 

that there was insufficient foundation for the breath test results because the State 

failed to establish that Officer Mills, who administered the breath test, had been 

certified as required by Rule 23.4.218(1), ARM. Colby appears to argue that in order 

to lay a foundation for the admission of the breath test results, the State had to 

provide written proof of Officer Mills' certification.

¶12. The State responds that even if the District Court erred in admitting the breath 

test results, the error was harmless because sufficient independent evidence 

supported the jury's verdict. The State argues further that Colby failed to preserve 

his objection to the lack of printed test results for the breath test. We agree: the 

record shows that Colby did not object on that ground. We conclude that Colby has 

failed to preserve this issue for our review. See Unified Industries, Inc. v. Easley, 

1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15 (concluding "[t]he 

general rule in Montana is that this Court will not address either an issue raised for 

the first time on appeal or a party's change in legal theory") (citation omitted).

¶13. The State argues that Montana's administrative rules do not require that the 

State produce written documentation that an ethyl alcohol solution has been used in 

compliance with Rule 23.4.213, ARM. The State further contends that Colby has not 

shown that he has been prejudiced because of the State's failure to establish the age 

of the ethyl alcohol solution that was used to certify the accuracy of the Intoxilyzer 

5000. Finally, the State appears to argue that Officer Mills' testimony established 

that he was qualified to administer the breath test.

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¶14. We have previously held that to lay a foundation for the admission of breath test 

results, the State must establish compliance with Montana's administrative rules. In 

State v. Woods (1997), 285 Mont. 124, 947 P.2d 62, we concluded:

a defendant charged with driving under the influence of alcohol is entitled to the 

procedural safeguards contained within the administrative rules. Where the State fails to 

lay a proper foundation by establishing compliance with the administrative rules, we have 

held that the results of the breath test analysis are inadmissible. 

Woods, 285 Mont. at 127, 947 P.2d at 63 (citations omitted). 

¶15. In the present case, however, we conclude that apart from the breath test 

results, there was very substantial evidence from which a jury could conclude that 

Colby was driving under the influence of alcohol in violation of § 61-8-401, MCA. 

The record establishes that Colby was discovered sound asleep in a northbound 

traffic lane of Reserve Street in Missoula. Colby's eyes were red and he smelled of 

alcohol. He slurred some of his words. He performed poorly in several roadside field 

sobriety tests. He scored a 0.127 on the PBT.(1)

 Moreover, he admitted that he had 

been drinking. There was overwhelming evidence that Colby was driving under the 

influence of alcohol. 

¶16. Thus, we hold that to the extent that the District Court may have abused its 

discretion in admitting the breath test results, the error was harmless because of the 

independent overwhelming evidence that Colby was driving under the influence of 

alcohol. Compare State v. Huerta (1997), 285 Mont. 245, 252, 947 P.2d 483, 487 

(holding that when record establishes guilt a new trial will not be granted unless 

error impaired right to fair trial); State v. Arlington (1994), 265 Mont. 127, 141, 875 

P.2d 307, 316 (concluding that although district court erroneously limited crossexamination, error was harmless because of overwhelming evidence that victim was 

beaten). Moreover, we note that Colby makes no claim that the admission of the 

breath test results has prejudiced his substantive rights. Compare § 46-20-701(2), 

MCA (providing that "[a]ny error, defect, irregularity, or variance that does not 

affect substantial rights must be disregarded").

¶17. The verdict and judgment of the District Court are affirmed. 

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/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

Justice James C. Nelson dissents.

¶18. I disagree with the Court's harmless error analysis. First, we note that Colby 

scored a 0.127 on the PBT. We have held that the results of a PBT (preliminary 

alcohol screening test) taken pursuant to § 61-8-409, MCA (1995), the statute 

applicable at the time of Colby's arrest,

are not substantive evidence of the amount of alcohol present in a person's body, but 

instead are an "estimate" of alcohol concentration for the purpose of establishing probable 

cause to believe that a person is under the influence of alcohol prior to making an arrest 

for violation of §§ 61-8-401, -405, or 410, MCA.

State v. Strizich (1997) 286 Mont. 1, 12, 952 P.2d 1365, 1372. See also § 23.4.201(7)(b), 

ARM (PBT test results "are to be considered as probable cause evidence only"). 

Accordingly, while Colby's PBT test result was relevant to the determination of probable 

cause for his arrest for DUI, the result was not substantive evidence of his guilt which the 

jury was entitled to consider. For this same reason, it is improper that we factor the test 

result into our conclusion that "[t]here was overwhelming evidence that Colby was driving 

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under the influence of alcohol." The test result would not have been properly considered 

as part of that evidence.

¶19. Second, regardless of the quantum of admissible non-breath test evidence that 

might be left, we have held that the improper admission of BAC evidence of alcohol 

consumption is not harmless error as it has a "'natural tendency' to infect the entire 

proceedings with an unfairness which can only be remedied with a new trial." 

Havens v. State (1997), 285 Mont. 195, 201, 945 P.2d 941, 944. See also State v. 

Ingraham, 1998 MT 156, ¶¶ 37-51, ___ Mont ___, ¶¶ 37-51, 966 P.2d 103, ¶¶ 37-51 

(citing Havens, 285 Mont. at 200, 945 P.2d at 944); and Simonson v. White (1986), 220 

Mont. 14, 23, 713 P.2d 983, 988 (holding that, in his trial for negligent homicide, the 

improper admission of prescription drugs detected in defendant's system following 

an automobile accident, but which were not shown to have had any effect whatsoever 

on his ability to drive was by its very nature prejudicial rather than harmless error, 

thus requiring a new trial).

¶20. It goes without saying that evidence of an intoxilizer machine breath test and 

testimony as to the test results given by a certified examining officer is the most 

convincing, probative and damaging evidence in a DUI case. Were this not so, the 

legislature would not have imposed the severe sanctions for refusing to take the test 

that it did. See §§ 61-8-402 and -404, MCA. 

¶21. Given our case law precedent and the obvious prejudicial effect of improperly 

admitting evidence of breath test results, I am not prepared to hold, as is the 

majority, that to the extent that the District Court may have abused its discretion in 

admitting this evidence, the error was harmless beyond a reasonable doubt.

¶22. I dissent.

/S/ JAMES C. NELSON

1. 1

 We note that Colby did not object to the admission of the PBT evidence. 

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