No. 90-495 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

DWIGHT BRISTOL HOY, 

Defendant and Appellant, 

-vsCITY OF HELENA, 

Plaintiff and Respondent. 

APPEAL FROM: District Court of the First Judicial ~istrict, 

In and for the County of Lewis and Clark, 

The Honorable Jeffery M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Donahoe, Attorney at Law, Helena, Montana 

For Respondent: 

David Hull, City Attorney, Helena, Montana 

Bob Wood, Deputy City Attorney, Helena, Montana 

Submitted on Briefs: March 7, 1991 

Decided: April 11, 1991 

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

Defendant and appellant, Dwight Hoy, appeals from his 

conviction in the First Judicial District Court, Lewis and Clark 

County, of driving under the influence of alcohol. We affirm. 

The only issue presented on appeal is whether the District 

Court erred in admitting, over objection, alleged hearsay evidence. 

On February 25, 1990, at approximately 2:10 a.m., Helena City 

Police Officer Debra Badger observed a pickup truck twice swerve 

to the side of the road and then come back towards the center, as 

it travelled eastbound on Eleventh Avenue. Officer Badger 

activated her police car lights and stopped the pickup. Upon 

approaching the driver's side window to ask the driver for his 

driver's license and vehicle documents, she detected the odor of 

alcohol and requested the driver, appellant Hoy, to step out of his 

vehicle. 

Officer Badger asked appellant to perform several field 

sobriety tests, on the results of which she placed him under 

arrest. Appellant was transported to the Lewis and Clark County 

Jail where he was videotaped performing the sobriety tests a second 

time. At this point appellant agreed to take a breathalyzer test. 

At trial, subsequent to her testimony of the facts set forth 

above, Officer Badger identified the printout card from the 

breathalyzer. When she was asked to identify some handwriting on 

the card, she began to explain the function of a display screen 

located on the breathalyzer and stated that it shows both the 

calibration check and the subject's test results. At that point, 

2 
the parties adjourned to chambers for defense counsel's objection 

to her testimony regarding the readings she observed on the display 

screen and wrote on the printout card. Conceding that the printout 

card itself was admissible evidence, defense counsel further 

objected that the printout speaks for itself and should not be 

varied by oral testimony. The ~istrict Court overruled the 

objections and allowed the testimony. 

Officer Badger testified that the printout card itself is 

produced by the printer which is separate from, but attached to, 

the breathalyzer machine and that the handwritten numbers on the 

card were written by her. She explained that she had experienced 

difficulties in obtaining clear printouts prior to the time of 

appellant's arrest and, thus, was aware that it might be necessary 

to read the numbers from the screen. 

Officer Badger testified that the numbers she wrote on the 

printout card--as to both the calibration and breathalyzer 

result---were identical to those she observed on the screen at the 

time the test was being administered to the appellant. She 

testified that the calibration check, ,095, reflected that the 

breathalyzer was functioning properly; that is, that the 

breathalyzer result she copied from the screen and wrote on the 

card was accurate. Finally, Officer Badger testified that the 

breathalyzer result, .212, was consistent with appellant's behavior 

and field sobriety test results. 

The issue presented on appeal is whether the District Court 

erred in admitting the officer's testimony regarding the numbers 
she had observed on the display screen and subsequently recorded 

on the printout card. 

Appellant argues that such testimony is hearsay, does not fall 

within any recognized exceptions to hearsay, and consequently, is 

inadmissible in evidence. We disagree. 

The results of a chemical analysis of a defendant's breath 

for alcohol, when introduced for the truth of the results shown, 

are hearsay under Rule 801(c), M.R.Evid. Hearsay is not admissible 

in evidence ''except as otherwise provided by statute, these rules, 

or other rules applicable in the courts of this state." Rule 802, 

M.R.Evid. 

Appellant appears to suggest that the printout card itself is 

admissible for the truth of the matter stated under Rule 803(6), 

M. R. Evid. , as a business record and, therefore, does not argue that 

the card is inadmissible. In any event, we note that the card is 

admissible under the statutory hearsay exception contained in § 61- 

8-404, MCA. 

Appellant argues that the officer's testimony regarding her 

observations of the display screen, unlike the printout card, does 

not fall within any exception to the hearsay rule and, as a result, 

that the testimony is inadmissible hearsay evidence. We reject 

this argument. 

~ssuming arguendo that the testimony and the handwritten 

numbers on the printout card are hearsay, they fall within 

recognized exceptions which allow for their admissibility. They 

come within the statutory hearsay exception in 5 61-8-404, MCA: 
they are evidence and a report of the results of a chemical 

analysis of a person's breath. 

In addition, the numbers which Officer Badger wrote on the 

card constitute a present sense impression under Rule 803(1), 

M.R.Evid. "A statement describing or explaining an event or 

condition made while the declarant was perceiving the event or 

~ondition,~~ is an exception to hearsay and admissible evidence. 

Rule 803 (1) , M.R.Evid. 

A statement is an oral or written assertion. Rule 801 (a) , 

M.R.Evid. The numbers Officer Badger recorded on the printout card 

were a written assertion describing a condition, namely appellant's 

blood alcohol content results, made at the time she was perceiving 

the event or condition. 

If Officer Badger had not handwritten the numbers on the card, 

but had attempted to testify, from memory, as to the numbers she 

had observed on the display screen, the guarantee of authenticity 

that is required of hearsay exceptions might be questionable. Not 

only her memory, but her motives, might be suspect under such 

circumstances. However, Officer Badger knew the printer was not 

functioning properly. She testified that when the printer was 

functioning properly, the numbers on the display screen were 

identical to the numbers printed on the card. By recording the 

numbers from the screen onto the card, officer Badger merely served 

the same function the printer was intended to perform, 

specifically, to make a written record of the test results in order 

that they could be subsequently used as evidence. The guarantee 
of trustworthiness is sustained by the immediate recording of the 

numbers and the resulting reduced likelihood of deliberate 

misrepresentation or fabrication. This is particularly true in 

this case, where examination of the printout card as it was 

introduced reflects that the handwritten calibration number and 

the printout calibration check are identical; only a few lines on 

the card are garbled. Finally, there exists the opportunity for 

cross-examination regarding the admitted evidence. The record in 

this case clearly indicates that defense counsel cross-examined 

Officer Badger extensively on this matter. 

We find the testimony was properly allowed and not 

inadmissible hearsay. 

Affirmed. 

We concur: 

/' 

LA4&q,%- 

Chief Justice