No. DA 06-0210
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 168

____________________________________ STATE OF MONTANA, Plaintiff and Respondent,

v. KEAL GORDON REAVELY, Defendant and Appellant.

____________________________________ APPEAL FROM: District Court of the Twenty-First Judicial District, In and for the County of Ravalli, Cause No. DC 05-27, The Honorable James A. Haynes, Presiding Judge.

COUNSEL OF RECORD: For Appellant: David E. Stenerson, Stenerson Law Office, Hamilton, Montana For Respondent: Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana George H. Corn, Ravalli County Attorney; William E. Fulbright, Deputy County Attorney, Hamilton, Montana

____________________________________ Submitted on Briefs: January 4, 2007 Decided: July 12, 2007 Filed:

_____________________________________________ Clerk2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Keal Gordon Reavely (Reavely) appeals from the Ravalli County District Court’s denial of his attempt to intr oduce evidence of his prelim inary alcohol screening test (PAST) during his trial for driving un der the influence of alcohol (DUI). ¶2 We review whether the District Court abused its discretion when it decided to exclude the result from Reavely’s preliminary alcohol screening test? FACTUAL AND PROC EDURAL HISTORY ¶3 Reavely’s car struck another car while he was attempting to leave the Eagle’s Club in Hamilton on the evening of November 22, 20 04. A witness to the incident notified the authorities. The Hamilton City Police dispatched Officer Ni c Painter (Officer Painter) to the scene. Officer Painter obse rved that Reavely’s eyes were red and that he smelled like alcohol. Officer Painter asked Reavely for his consent to perform a PAST and Reavely agreed. Reavely’s PAST result indicated that he had a blood alcohol content (BAC) of 0.136. Officer Painter placed Reavely under arrest for DUI and transported him to the Ravalli County detention center. Officers performed a second breathalyzer test on Reavely at the detention center approximat ely 21 minutes after Officer Painter had performed the PAST procedure. The results of the second br eath test using an Intoxilyzer 5000 indicated that Reavely had a BAC of 0.187. ¶4 The State charged Reavely w ith felony DUI based on the fact that he had been convicted of DUI on three previous occasions. Reavely entered a plea of not guilty, and the case proceeded to trial on July 26, 2005. Reavely’s co unsel argued in his opening statement that he would present evidence th at the police had administered two breath3 tests on Reavely. The State requested a meeti ng with the court out of the presence of the jury to discuss Reavely’ s opening statement. ¶5 The State raised the concern that it suspected that Reavel y intended to compare his PAST result with his Intoxilyzer 5000 result in order to show that his BAC might have been below 0.08 at the time of the accident. The State argued that the court should exclude Reavely’s PAST result from evid ence as PAST results had been held inadmissible in State v. Snell , 2004 MT 334, 324 Mont . 173, 103 P.3d 503. ¶6 Reavely’s counsel admitted that Snell precluded the State from using the PAST result as evidence of intoxica tion. Reavely’s counsel distinguished Reavely’s facts, however, from the facts in Snell . He argued that Reavely di d not seek to use the PAST result to prove evidence of intoxication. Reavely’s counsel wanted to compare the PAST result with the Intoxilyzer 5000 result in order to establish that Reavely’s BAC had been rising at the time of the accident. ¶7 The court determined that Reavely’s argu ment assumed the accu racy of the PAST result. The court ruled that it would ex clude the PAST result unless Reavely first established a foundation on wh ich to admit the PAST result. Reavely objected for the record. Reavely made no atte mpt during trial to establish a foundation for admitting the PAST result. The jury found Reavely guilty of DUI and th e court sentenced Reavely on October 20, 2005. This appeal followed. STANDARD OF REVIEW ¶8 We review a district court’s evidentiary ruling for an abuse of discretion. Snell , ¶ 17.4 DISCUSSION ¶9 Did the District Court abuse its discreti on when it decided to exclude the result from Reavely’s preliminary alcohol screening test? ¶10 Reavely argues that the cour t should have adm itted his PAST resu lt for the sole purpose of establishing that his BAC was rising at the time of the accident. He points out that the Intoxilyzer 5000 indicated that his BAC was 0.187 approximately 21 minutes after his PAST result had indicated that his BAC was 0.136. Reavely argues that the jury could have inferred from these results that his BAC was rising after the accident and, thus, that his BAC might have been belo w 0.08 at the time he was driving. ¶11 We have held that a party must establish that a defendant’s PAST result is accurate and reliable before the PAST may be admitt ed as evidence of a defendant’s BAC. State
v. Damon , 2005 MT 218, ¶ 25, 328 Mont. 276, ¶ 25, 119 P.3d 1194, ¶ 25. The party seeking to admit the PA ST must establish this foundati on of accuracy and reliability with expert testimony as governed by M. R. Evid. 702. Damon , ¶ 25. ¶12 Reavely concedes that the State must establish a fo undation of accuracy and reliability before it can admit a PAST result as evidence of a defendant’s BAC. He “wholeheartedly agrees,” in fact, that a PAST result re presents an unreliable and inaccurate method of measuring a defendant’s BAC. Reavely insists, however, that the accuracy of his PAST result is “ not the core issue” because he does not seek to prove that his BAC is accurate “to a degree that it can be relied upon to establish the BAC level of a Montana citizen for purposes of proof of intoxi cation . . . .” Reavely points out that he wants only to “establish reasonable doubt th at Reavely had a BAC greater than 0.08 at5 the time he was driving.” ¶13 The reliability and accuracy of the PAST test is critical, however, to Reavely’s theory. Reavely’s BAC, in r eality, may have been much less than or much greater than his PAST result indicated. Reavely’s actua l BAC at the time wh en Officer Painter administered the PAST might have shown, for example, that his BAC was rising if it had been less than 0.187, holding st eady if it had been close to 0. 187, or falling if it had been greater than 0.187. ¶14 The PAST result is thus irrele vant to the fact that Reav ely seeks to prove—that his BAC had been trendi ng upward—as his adm ittedly “unreliable” PAST result does not tend to establish that any one of these trends was more probable than the other. M. R. Evid. 401. Reavely need ed to provide a foundation that his PAST had been a sufficiently accurate representation of his BAC so that it wa s relevant to his theory. Reavely has not done so here. ¶15 Reavely argues next that he sought to offer his PAST result only to raise a reasonable doubt that his BAC had been greate r than 0.08 at the tim e that he had been driving. He contends that it is unfair to require him to demonstrate the accuracy of his PAST result to establish reasonable doubt when courts permit the State to use a PAST result “without relating the actual numbers to show probable cause to arrest . . . .” Reavely’s analogy to probable cause hearings lacks merit. The rules of evidence do not govern probable cause determinati ons by a judge or the police. See e.g. , Hart v. Parks , 450 F.3d 1059, 1066 (9th Cir. 2006); State v. Beaupre , 2004 MT 300, ¶ 48, 323 Mont. 413, ¶ 48, 102 P.3d 504, ¶ 48 (holding that hearsay may be used to establish probable6 cause). Moreover, by his own admission, Re avely does intend to relate the “actual numbers.” ¶16 Reavely also mischaracterizes the purpose for which he sought to admit the PAST result. Reavely did not merely propose to admit the number th at Officer Painter observed on the PAST screen to help establish reasona ble doubt. Reavely also would have asked the jury to assume that the number Officer Painter observed actually represented Reavely’s BAC within some degree of acc uracy. Officer Painter had no personal knowledge, however, of Reavely’s BAC. O fficer Painter only knew what he saw on the PAST screen. Reavely needed to offer expert testimony in order to establish that the number that Officer Painter saw on the screen actually represented Reavely’s BAC within some degree of accuracy and reliability . M. R. Evid. 602, 701, 703; Damon , ¶ 25. Reavely did not present any experts at trial and does not argue on appeal that he would have presented an expert at trial if he had been given the opportunity. ¶17 Reavely sought to use his PAST result to prove that his BAC was within a certain range of values, yet he made no attempt to es tablish a foundation at trial showing that his PAST result had been an accurate represen tation of his BAC within any degree of accuracy. We have never held th at a court or jury may assume, as a matter of law, that a PAST result is a reliable representation of a defendant’s BAC within any particular degree of accuracy. Damon , ¶¶ 25-29. The District Court did not abuse its discretion in excluding Reavely’s PA ST result under these circumstances. ¶18 Affirmed.
/S/ BRIAN MORRIS7 We Concur:

/S/ KARLA M. GRAY /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ JIM RICE
Justice W. William Leaphart specially concurring. ¶19 I agree with Reavely’s more general assert ion that he should be able to use the PAST result to establish reasonable doubt. Our holding here woul d have left Reavely free to do so. He could ha ve used his PAST result for impeachment or to call into question any number of facts that might have helped him esta blish reasonable doubt. Our holding would not have prevented Reavely, for example, from asking Officer Painter to testify to the PAST result that he observed on the PAST screen. The PAST result on the screen was within Officer Painter’s personal knowledge and he was free to tell the jury what he saw, absent some evidentiary objecti on. M. R. Evid. 602. Reavely would have been free to incorporate Officer Painter’s testimony into his closing argument to help establish reasonable doubt. ¶20 As the Opinion notes, howe ver, Reavely was not merely seeking to argue to the jury that Officer Painter observed 0.136 on the PAST screen. Rather, he sought to affirmatively argue that the number 0.136 actually represen ted Reavely’s BAC. This proposition requires testimony from an expert witness.

/S/ W. WILLIAM LEAPHART8 Justice John Warner specially concurring. ¶21 I concur with the opinion of the Court. I must respectfully disagree with the concurrence of Justice Leaphart. While what was shown on the PSA T screen was within the officer’s personal knowledge, and thus sa tisfies the requirement of M. R. Evid. 602 that a witness may testify to those things within his pers onal knowledge, Rule 602 is expressly made subject to the re quirements of M. R. Evid. 703, concerning the basis of an expert’s knowledge and opinion. Thus, in order for the officer to testify as to the actual number shown on the PSAT screen, a pr oper foundation would be required. ¶22 Without a proper foundation, the number is inadmissible to prove its veracity. The number has no relevance other than its veracity , as it tends to prove nothing other than blood alcohol content. M. R. Evid. 401. It follows that, unless the proper foundation is laid and the PSAT is admitted into evidence, there is no le gitimate argument that can be made using the number shown on the screen.

/S/ JOHN WARNER

Justice Patricia O. Cotter dissents. ¶23 I dissent from the Court’s decision to impose upon Reavely the burden of demonstrating that the State’ s PAST evidence was reliable. In my view , Reavely was entitled to present the PAST evidence in support of his reasonable-doubt argument without first having to present the same proof of reliability th at we require when the State seeks to use PAST evidence to carry its burden of proof beyond a reasonable doubt.9 ¶24 After leaving the Eagle’s Club on the even ing in question, Reavely attempted to back his pickup truck out of a diagonal parki ng space on Pinckney Street. In the process, his truck scraped a vehicle in an adjacent pa rking space. Reavely remained at the scene and Officer Painter arrived several minutes la ter. Approximately sixty minutes after this accident, Officer Painter administered a PAST, also known as a preliminary breath test (“PBT”), which indicated that Reavely’s BAC was approxima tely 0.136. Then, roughly twenty-one minutes later, and after he had arre sted Reavely, Officer Painter administered the Intoxilyzer 5000 breath test which measured Reavely’s BAC at 0.187. ¶25 At trial, the State introduced the results of the Intoxilyzer 5000 breath test as evidence that Reavely’s BAC was above 0.08 when he attempted to drive away from the Eagle’s Club. Reavely did not dispute that his BA C was substantially above the legal limit when the two breath tests were administer ed. Nor did he dispute the accuracy of either of the breath test results. Rather, he attempted to demonstrat e that the jury could find a reasonable doubt as to whether his BA C had reached 0.08 at the time when he attempted to back his truck out of the parkin g space, over an hour before the Intoxilyzer 5000 test result was rendered. ¶26 To that end, Reavely’s counsel solicited testimony from Ben Vetter (“Vetter”), an employee of the Breath Analysis Section of the Montana State Crim e Lab. Vetter is a certified technician of the port able and non-portable breath analysis instruments used by Montana law enforcement agenci es. Additionally, he conduct s training at the Montana Law Enforcement Academy regarding, inter a lia: (1) the proper operation of portable and non-portable breath analysis instrument s approved for use in Montana; and10 (2) pharmacology and toxicology, including scientific explanation regarding the process by which alcohol is absorbed into the bl ood and the resulting impairment of one’s faculties. ¶27 Vetter testified that a person’s BAC doe s not reach a peak immediately after alcohol consumption; rather, BAC rises ove r a period of time based on a number of factors unique to the individual. Vetter also acknowledged that in certain circumstances it is possible for a person to drink three or fo ur alcoholic beverages in a short period of time and then drive a vehicle for up to five minutes without suffering from the impairing effects of the alcohol. Add itionally, Reavely testified that it takes only four minutes to drive from the Eagle’s Club to his home, and that he did not believe he was impaired when he entered his truck on the night in question. ¶28 Reavely’s counsel argued that the State’s evidence did not dispel reasonable doubt that Reavely’s BAC had been below the legal limit at the time of the accident and then had gradually risen to the level detected by the Intoxilyzer 5000. In support of this argument, and in conjunction with the af orementioned evidence, Reavely’s counsel sought to introduce the result of the PBT administered by Officer Painter. However, as counsel explained to the District Court, he did not seek to present the PBT result as an accurate indicator of Reavely’ s BAC. Rather, contrary to the assertion of Justice Leaphart in his concurrence, Reavely merely sought to present the PBT result as a broad estimate which the jury could contrast wi th the significantly higher result rendered approximately twenty-one minutes later by th e Intoxilyzer 5000 test. Based on this comparative analysis, co unsel argued, he would ask the ju ry to consider the possibility11 that Reavely’s post-accident BAC was rising in a manner th at could indicate his BAC may have been below 0.08 when th e accident actually occurred. ¶29 The State argued that PBT results are inadmissible per se under this Court’s decision in State v. Snell , 2004 MT 334, 324 Mo nt. 173, 103 P.3d 503. Specifically, the State argued: “PBTs have been held to not be admissible. . . . [I]t’s, per se, not admissible. And that’s what the Supreme Court found in Snell .” ¶30 In fact, we did not create a ny such “per se” rule in Snell . Rather, we simply held that the PBT result in that case was inadmissible becaus e the State offered it for the purpose of proving the defendant’s BAC, and the State failed to dem onstrate that the PBT result was reliable. Snell , ¶¶ 37-38, 43. Yet, the District Court apparently agreed that Snell creates a “per se” rule of inadmissib ility, concluding that admission of the PBT result would create “a test case to ove rturn the Supreme Court’s decision in Snell .” Thus, the District Court ruled that the PBT result was not admissible for any purpose. 1 I disagree. ¶31 We have consistently held that a PBT result is not admissible as evidence of guilt in a DUI prosecution unless it is first shown to be reliable. State v. Weldele , 2003 MT 117, ¶¶ 57-58, 315 Mont. 452, ¶¶ 57-58, 69 P.3d 1162, ¶¶ 57-58; State v. Crawford , 2003 MT 118, ¶ 20, 315 Mont. 48 0, ¶ 20, 68 P.3d 848, ¶ 20; Snell , ¶¶ 35-38 (“[T]he State has the burden of offering scientific and expert testimony to firmly establish the [PBT’s]

1 The District Court expres sly prohibited any reference wh atsoever to the PBT result, stating: “the PBT test results [are] inadmissi ble and they shouldn’t be referred to as far as numbers or otherwise.” Because this Court affi rms the District Court’s ruling, I disagree with the assertion in Justice Leaphart’s concurrenc e that our decision “would not have prevented Reavely, for example, from asking Officer Painter to testify to the PAST re sult that he observed on the PAST screen.”12 reliability and accuracy.”). It is entirely appropr iate that this burden of proof is triggered by the State’s use of PBT results because a DUI prosecution dire ctly implicates a fundamental constitutional right of the citi zen being charged—i.e., the right to due process. Due process requires that a defendant must be presumed innocent at every stage of the trial, and that the State must prove each element of the charged offense beyond a reasonable doubt in order to overcome the pr esumption of innocence . Section 46-16-204, MCA; State v. Newman , 2005 MT 348, ¶ 26, 330 Mont. 160, ¶ 26, 127 P.3d 374, ¶ 26; State v. McCaslin , 2004 MT 212, ¶ 24, 322 Mont. 350, ¶ 24, 96 P.3d 722, ¶ 24; State v. Gilbert , 125 Mont. 104, 109, 232 P. 2d 338, 341 (1951) (“The presumption of innocence surrounds the defendant at every st ep in the trial and to its be nefits he is entitled in the determination of ever y fact by the jury.”). ¶32 The due process guarantee simply does no t allow a DUI prosecution to proceed upon evidence that is not de monstrably reliable. Thus , because the defendant is presumptively innocent, and be cause the State bears the burde n of presenting proof that dispels all reasonable doubt, th e State must present affirmativ e proof of reliability before utilizing a PBT result as evid ence of intoxication. Weldele , ¶¶ 57-58; Crawford , ¶ 20; Snell , ¶ 35. Without such proof of reliability, there is a risk that the trial could be fundamentally unfair—i.e., a ri sk that the defendant could be found guilty based on an inaccurate PBT result. Crawford , ¶ 18; Weldele , ¶¶ 55, 57 (because jurors tend to accord great weight to evidence that is scientific in nature, PBT results c ould be the determining factor in a finding of guilt).13 ¶33 This brings us to one of the most basic tenets of evidence law—the principle that admissibility of a particular piece of evidence must be determined in light of the purpose for which that eviden ce is offered. See State v. Bingman , 2002 MT 350, ¶ 34, 313 Mont. 376, ¶ 34, 61 P.3d 153, ¶ 34; McDermott v. Carie, LLC, 2005 MT 293, ¶ 20, 329 Mont. 295, ¶ 20, 124 P.3d 168, ¶ 20; M. R. Evid. 105. Indeed, “[n]o issue concerning the admissibility of evidence can be resolved withou t answering[:] What is the purpose of the evidence being offered ?” David P. Leonard, The New Wigmore: Selected Rules of Limited Admissibility § 1.1 (rev. ed., Aspen Pu blishers 2002). It is well established, in the Montana Rules of Evidence and our precedents, that a piece of evidence may be categorically inadmissible wh en offered for one purpose, and yet be admissible in the same proceeding when offered for a different purpose. For example, evidence of other crimes committed by a defendant is not admissible for the purpose of proving character in order to show action in conformity therewith; however, that evidence is admissible for other limited purposes such as proving motiv e. M. R. Evid. 404(b). Similarly, a defendant’s statements made in connection with a guilty plea that was later withdrawn are generally inadmissible as evidence against that de fendant; however, they are admissible when offered for the limited purpo se of impeachment. M. R. Evid. 410. 2 ¶34 While we have consistently held that PBT results are in admissible without affirmative proof of reliability, we have applied that rule onl y in cases in which the PBT evidence is offered by the State for the purpose of proving guilt. Ho wever, the very

2 There are numerous other examples of eviden ce that is inadmissible for certain purposes but admissible for other purposes, including: evidence of subsequent remedial measures, M. R. Evid. 407; evidence of an offer to settle a claim, M. R. Evid. 408; and evidence of prior accidents in a negligence suit, Richardson v. State , 2006 MT 43, ¶ 26, 331 Mont. 231, ¶ 26, 130 P.3d 634, ¶ 26.14 reasons for the existence of th is admissibility rule demonstr ate that it should not apply where the PBT evidence is offered by the defendant and for a different, more limited purpose. Reavely’s proposed use of the PBT evidence did not implicate any constitutional protections applicable in criminal trials; it was not offered in satisfaction of any burden of proof; and it was not offered for th e purpose of overcoming any constitutionally mandated presumptions. Mo reover, Reavely’s propo sed use of the PBT result could not possibly have cau sed any prejudice to the State because, as we have held, when an Intoxilyzer test result indicating an i llegally high BAC has be en admitted at trial, the admission of a PBT result also showing an illegally high BAC is merely redundant and therefore non-prejudicial. Weldele , ¶ 63. ¶35 Thus, because each of the reasons for the existence of this ad missibility rule is inapposite here, where the PBT result was offe red for a limited purpose not contemplated by any of our precedents, the bu rden to prove reliability sh ould not apply to Reavely’s proposed use of the PBT evidence. ¶36 As noted above, Reavely soug ht to introduce the PBT re sult as nothing more than an estimate of his BAC roughly twenty-one mi nutes before the Intoxilyzer 5000 test was conducted. He expressly did not seek to es tablish any particular BAC level with this evidence, nor did he even seek to affirmatively “prove” that his BAC level was rising. Indeed, he was presumed innocent and theref ore had no burden to “p rove” anything at all. 3 Rather, he simply sought to use the PBT evidence as an estimate in support of his

3 As noted in Taylor v. Kentucky , 436 U.S. 478, 483-84, n.12, 98 S. Ct. 1930, 1934, n.12 (1978), even when a defendant presents no evidence whatso ever, but simply “remain[s] inactive,” he or she is still fully entitled to the presumption of innocence. Moreover, to the extent Reavely did choose to present evidence in this case, he wa s not required to meet any burden of proof to15 reasonable-doubt argument—i.e., the argument that even though hi s BAC was in fact illegally high after the accident, the State’s evidence did not dispel reasonable doubt that his BAC may have been below the legal lim it at the time the accident occurred. ¶37 Montana’s statutes, Administrative Rules, and this Court’s decisions recognize that a PBT result is in fact an estimate of BAC. See § 61-8-409(1), MCA (the purpose of a PBT is “estimating the person’s al cohol concentration” ); Admin. R. M. 23.4.201(8)(b), (26) (PBT instruments “p rovide an estimated value of alcohol concentration”); Weldele , ¶¶ 6, 50. Accordingly, Reavel y’s counsel expressly indicated to the District Court that he would not intr oduce the PBT result as an indicator of any specific BAC level, but merely as an estimat e or a broad range within which Reavely’s BAC fell. Further, counsel expr essly recognized that PBT results are not “accurate” and indicated that he would communicate that fact to the jury. In short, Reavely sought to present the PBT evidence as precisely what the law recognizes it to be—an estimate of his BAC. ¶38 Our precedent acknowledges th at the estimate rendered by a PBT is reliable enough for certain purposes. As we have re cognized, in determining whether probable cause exists to justify a wa rrantless arrest, law enforcemen t officers may rely on PBT results along with other factors such as th e officer’s own observations and the suspect’s performance in field sobriety tests. State v. Ditton , 2006 MT 235, ¶ 54, 333 Mont. 483, ¶ 54, 144 P.3d 783, ¶ 54. In fact, PBT results may be a critical factor in determining whether probable cause exists for a warrantless arrest. See State v. Feldbrugge , 2002 MT justify the presumption of innocen ce; rather, that presumption remained with him at every stage of the trial. Gilbert , 125 Mont. at 109, 232 P.2d at 341. Fu rther, Reavely did not mount an affirmative defense which would have required him to affirmatively “prove” any particular facts.16 154, ¶¶ 5-11, 310 Mont. 368, ¶¶ 5-11, 50 P. 3d 1067, ¶¶ 5-11 (where the defendant was stopped for exceeding the speed limit and was not asked to perform any field sobriety tests, the PBT result of 0.197 was the deciding factor in the office r’s determination that probable cause existed after the defendant “a dmitted having had a co uple of drinks” and the officer observed, among other things, th at the defendant smelled of alcohol, his speech was slurred, and his eyes appeared bloods hot and glassy). ¶39 Here, Officer Painter relied in part on th e PBT result in determ ining that probable cause existed to justify a warrantless arrest of Reavely. Additionally, the State further relied on the PBT result by citing it as evidence in support of its motion for leave to file the DUI charge against Reavely. Yet, despite this reliance, and desp ite the fact that the State is required by law to take extens ive measures to en sure PBT reliability, 4 the State nonetheless insists that the burden of demonstrating reliab ility—which we have traditionally imposed only where the State uses PBT evidence for the purpose of proving guilt beyond a reasonable doubt—must somehow sh ift to Reavely in th is case. However, we have never held—before today—that a pa rty must establish PBT reliability when the test result is offered for some purpose othe r than proving guilt. Moreover, as Reavely clearly indicated at trial, he would not have asked the jury to rely on the PBT result to any greater extent than the Stat e itself had already relied on it.

4 See § 61-8-409(7), MCA (requiring that the PBT in strument and the officer administering the test must be properly certified pursuant to Montana’s Administrative Rules); see also Admin. R. M. 23.4.201-225 (inter alia, requiring that all PBT instruments must be tested on a monthly basis and must render resu lts at plus or minus 10% of ta rget value or be removed from service; providing requirements for keeping deta iled records of the monthl y tests; and providing training and testing requirements for the certif ication of officers who administer PBTs).17 ¶40 Given that the State is legally required to ensure PBT reliability by adhering to the stringent Administrative Rules, and given that the State relie d on the PBT result to arrest Reavely without a warrant, thereby implicating his constitutional liberty interest (the right to be free from unreasonable seiz ure, Mont. Const. art. II, § 11), I conclude that it is fundamentally unfair to requ ire that Reavely demonstrate the PBT’s reliability when he sought to introduce the test re sult solely as an estimate of BAC for the limited purpose of making a comparison supportin g his reasonable-doubt argument. After all, the PBT result is the State’s own evidence—the St ate certified Officer Painter and the PBT instrument, the State conducted the PBT through Officer Pain ter, and the State relied on the test result to justify a warra ntless arrest of Reavely. Thus , in my view, this evidence should not be withheld from the jury simply because Re avely did not prove its reliability in the same way the State must do so to carry its burden of proof beyond a reasonable doubt. ¶41 As this Court indicated in State v. Damon , 2005 MT 218, ¶ 27, 328 Mont. 276, ¶ 27, 119 P.3d 1194, ¶ 27, one of th e factors establishing the reliability of a particular PBT result is the State’s conformance with the administrative rule requiring proper calibration of the PBT instrument on a regular basis—i.e., monthly calibration to within a 10% margin of error. Admin. R. M. 23.4.213(2)(b). This Court has held that “a defendant charged with driving under the influence of alcohol is entitled to the procedural safeguards contained within th e administrative rules.” State v. Woods , 285 Mont. 124, 127, 947 P.2d 62, 63 (1997) (internal citations omitted). 5 In my view, if we are to

5 We have repeatedly held that defendants are entitled to the safeguards of the Administrative Rules. State v. McDonald , 215 Mont. 340, 346, 697 P.2d 1328, 1331 (1985); State v. O’Brian ,18 faithfully adhere to the princi ple that a defendant is “entitle d to the procedural safeguards contained within the administrative rules,” we must not saddle th e defendant with the burden of affirmatively establis hing that the State conformed to those rules, particularly where the State has already relied on the PB T result to establish probable cause for a warrantless arrest. ¶42 Finally, in addition to disagr eeing with the Court’s decisi on today, I also take issue with the Court’s reliance on Damon because our decision in th at case is internally inconsistent. In Damon , this Court addressed the State’s use of PBT evidence to prove guilt, and in doing so, repeated ly emphasized the rule that “it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-ex amination and refutation.” Damon , ¶¶ 17, 19, 28 (citations omitted). Based on this rule, the Court held th at questions regarding whether a particular PBT result is reliable go to the weight of the evidence and not to its admissibility.
Damon , ¶ 24. However, the Court then proceeded to hold th at a PBT result must be shown to be reliable before it is admissible in evidence. Damon , ¶ 25. Of course, if this is so, then questions regarding the PBT’s relia bility do in fact go dir ectly to the issue of admissibility, contrary to th e Court’s holding in ¶ 24 of Damon

. ¶43 I dissented in Damon , and will not reiterate my disa greement with the outcome of that case here. However, I urge the Court to address this internal inconsistency in
Damon , as currently, the decision can be legitimately cited for diametrically opposed rules regarding PBT evidence.

236 Mont. 227, 229, 770 P.2d 507, 508 (1989); State v. West , 252 Mont. 83, 89, 826 P.2d 940, 944 (1992).19 ¶44 Returning to the present case, I conclude in summary that Re avely was entitled to present the PBT evidence as an estimate of his BAC—which is in fact how it is recognized under our law—in support of hi s reasonable-doubt argument, without first having to present the same proof of reliability that we require when the State seeks to use PBT evidence to carry its burden of proof be yond a reasonable doubt. Here, Reavely’s proposed use of the PBT evidence for a limited purpose—i.e., not to affirmatively “prove” anything, but to merely suppor t his reasonable-doubt argument—did not implicate any of the concerns that prompted us to initially require the State to prove PBT reliability. ¶45 Moreover, given that the State is required by law to take extensive measures to ensure PBT reliability, and give n that the State relied on the PBT result in this case to arrest Reavely without a warrant, Reavely shou ld not now be required to prove that the State complied with its legal obligations to ensure PBT reliability. Indeed, we have repeatedly held that a defe ndant charged with DUI is en titled to the benefit of the Administrative Rules that require th e State to ensure PBT reliability. ¶46 Finally, I note again what is perhaps the clearest guidance from our precedents indicating the proper outcome of this decision : the State could not have been prejudiced by Reavely’s use of the PBT result because th at evidence was mere ly redundant of the Intoxilyzer 5000 test result. Weldele , ¶ 63. ¶47 For these reasons, I conclude that the Di strict Court abused its discretion in precluding Reavely from utilizing the PBT re sult in support of his reasonable-doubt argument. Further, I conclude that the c ourt’s decision constitutes reversible error20 because it deprived Reavely of “a meaningful opportunity to present a complete defense.”
See California v. Trombetta , 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984). Reavely was wrongly denied the opportunity to solic it, by way of cross-examination, Officer Painter’s testimony as to the PBT result. De nying a defendant the opportunity to conduct effective cross-examination amounts to “cons titutional error of the first magnitude and no amount of showing of want of prejudice w[ill] cure it.” See Davis v. Alaska , 415 U.S. 308, 318, 94 S. Ct. 1105, 1111 (1974) (c itation and internal quotation marks omitted). ¶48 Accordingly, I dissent.

/S/ PATRICIA COTTER
Justice James C. Nelson joins in the di ssent of Justice Patricia O. Cotter.

/S/ JAMES C. NELSON