No. 94-613

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James C. Bartlett; Hash, O'Brien & Bartlett,

Kalispell, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Micheal S. Wellenstein, Ass't Attorney General,

Helena, Montana

Valerie D. Wilson, Deputy Flathead County

Attorney, Kalispell, Montana

Filed:

Submitted on Briefs: July 6, 1995

Decided: August 8, 1995

I

Clerk
Justice Karla M. Gray delivered the Opinion of the Court

Anthony J. Woods (Woods) appeals from the Judgment and Order

of Conviction entered by the Eleventh Judicial District Court,

Flathead County, on a jury verdict finding him guilty of operating

a vehicle with an alcohol concentration of .lO or more. W e

reverse.

The dispositive issue on appeal is whether the District Court

abused its discretion in admitting breath test evidence over Woods'

objection that a proper foundation was not established and, on that

basis, erred in denying his motion to dismiss the charge.

Woods originally was charged in the Justice Court of Flathead

County with violating § 61-a-406, MCA, by driving a vehicle while

his alcohol concentration, as shown by analysis, was .10 or more.

His motion to dismiss the charge was denied and he was found guilty

of the offense. After judgment was entered, Woods appealed to the

District Court.

A jury trial was held in the District Court on October 17,

1994. Deputy Sheriff Annette Holliday testified regarding her

activities in arresting Woods, transporting him to the Flathead

County Detention Center (Detention Center) and conducting sobriety

tests and a breath test to measure Woods' alcohol concentration.

The Montana Department of Justice, Division of Forensic Science,

breath analysis report form, reflecting Woods' breath alcohol

concentration (BAC) at . 188, was admitted over Woods' objection of

insufficient foundation. Woods moved for dismissal or a directed

verdict in his favor on the basis that the State had not listed a

2
witness qualified to lay the necessary foundation for admission of

the report form; the court denied the motion.

During Deputy Holliday's continued testimony, Woods objected

on foundation grounds to admission of the Intoxilyzer breath

analysis report produced at the Detention Center, which also

reflected Woods' BAC at .188. The District Court admitted the

exhibit. A videotape of Woods performing sobriety tests at the

Detention Center was played for the jury.

At the conclusion of the State's case, Woods renewed his

motion to dismiss the charge and direct a verdict, on the basis

that admission of the breath test evidence without the necessary

foundation was impermissible and, absent that evidence, the State

had failed to prove its case. The District Court again denied the

motion.

The jury found Woods guilty of the misdemeanor offense of

driving a vehicle with an alcohol concentration of .lO or more.

Woods appeals.

Did the District Court abuse its discretion in admitting

breath test evidence over Woods' objection that a proper

foundation was not established and, on that basis, err in

denying his motion to dismiss the charge?

Woods was charged with violating § 61-e-406, MCA, by driving

a vehicle while his alcohol concentration was .lO or more as shown

by an analysis of his blood, breath or urine. Absolute liability

attaches to commission of the offense; the State need not prove

that the offense was committed knowingly, negligently or purposely.

Sections 61-8-406 and 45-2-104, MCA. Thus, the critical proof

necessary to establish commission of the offense is the blood,

3
breath or urine test result.

The district court has broad discretion in determining whether

evidence is relevant and admissible; absent a showing of abuse of

discretion, we will not overturn the court's determination. State

v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citation

omitted). Here, given the offense charged and the necessity of the

breath test results to establish that Woods committed the offense,

error in admitting the breath test evidence would necessitate

dismissal of the charge for failure of proof.

The State of Montana closely regulates breath analysis

instruments utilized to determine the alcohol concentration of a

person charged with an alcohol-related driving offense. See §§

23.4.201 through 23.4.221, ARM. A defendant charged with such an

offense is entitled to the procedural safeguards which are

contained in the administrative rules. State v. West (1992), 252

Mont. 83, 89, 826 P.2d 940, 944; citing State v. O'Brian (1989),

236 Mont. 227, 229, 770 P.2d 507, 508.

The administrative rule at issue in this case provides, in

pertinent part:

(1) Breath analysis instruments shall be field certified

for proper calibration at least once every seven (7) days

by a breath test specialist/senior operator, or in the

event of a senior operator's absence, his/her authorized

designee, using a solution of ethyl alcohol approved by

the division of forensic science and using the field

certification report form for the breath analysis

instrument being certified.

Section 23.4.213, ARM. Woods contends that the State failed to lay

a foundation for his BAC test results by establishing compliance

with § 23.4.213 (l), ARM, and argues that, as a result, the BAC

4
evidence was inadmissible.

The State concedes that it did not lay a proper foundation for

admission of Woods' BAC test results. No evidence whatsoever was

introduced that the Intoxilyzer had been properly and timely

calibrated as required by 5 23.4.213(l), ARM. Absent the required

foundation, we conclude that the District Court abused its

discretion in admitting the breath test evidence. As a result, we

hold that the court erred in denying Woods' motion to dismiss the

charge against him.

Reversed and remanded with instructions to enter an order of

dismissal.

We concur: