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No. 98-114

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 184

STATE OF MONTANA,

Plaintiff and Appellant,

v.

DAMON INCASHOLA,

Defendant and Respondent.

 APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Hon. Joseph P. Mazurek, Attorney General,

Jennifer Anders, Ass't Attorney General, Helena, Montana

Kim Christopher, Lake County Attorney,

Robert J. Long, Deputy Lake County Attorney, Polson, Montana

For Respondent:

Rebecca T. Dupuis, C. Edward Hayes, Attorneys at Law,

Polson, Montana

Submitted on Briefs: June 11, 1998

Decided: July 23, 1998

Filed: 

________________________________________

Clerk

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

¶1 The State of Montana (State) appeals from the order of the Twentieth Judicial 

District Court, Lake County, granting Damon Incashola's motion in limine. We 

reverse and remand.

¶2 The sole issue on appeal is whether the District Court abused its discretion in 

suppressing breath test evidence based on its interpretation of an administrative rule.

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¶3 Flathead Tribal Police Officer Dwayne Vollin (Officer Vollin) initiated a traffic 

stop of a vehicle driven by Damon Incashola (Incashola) on May 2, 1997, after 

observing that a taillight on the vehicle was out. Noticing that Incashola's eyes were 

bloodshot and his breath smelled of alcohol, Officer Vollin administered a horizontal 

gaze nystagmus test and Incashola scored six points, indicating alcohol impairment. 

Incashola was arrested and transported for a breath test. The breath test, conducted 

on an Intoxilyzer, indicated a blood alcohol concentration of .129. Officer Vollin's 

records check reflected that Incashola had three prior convictions for driving under 

the influence of alcohol.

¶4 The State subsequently charged Incashola with the felony offense of operating a 

motor vehicle with an alcohol concentration of 0.10 or more. Counsel was appointed 

for Incashola, he pled not guilty to the charge and a trial date was set.

¶5 Incashola moved to suppress portions of both the videotape taken after his arrest 

and the interview form on the basis that the evidence therein was obtained in 

violation of his Miranda rights. The District Court granted the motion and, on 

motion of the State, rescheduled the trial.

¶6 Prior to the trial date, Incashola filed a motion in limine contending that the 

breath test analysis also was inadmissible because the State could not lay a proper 

foundation under the Administrative Rules of Montana (ARM). He argued that, 

because no proper field certification was performed on the Intoxilyzer following his 

breath test, an inference was created under § 23.4.213(1)(i), ARM, that the 

Intoxilyzer was not in proper working order at the time of his breath test. The State 

opposed Incashola's motion, arguing that no such inference was created under 

subsection (1)(i) and, in any event, the field certification of the Intoxilyzer performed 

on April 29, 1997, was considered valid for 7 days thereafter under § 23.4.213(1)(j), 

ARM. As a consequence, according to the State, the necessary foundation for 

admission of the breath test results was established. The District Court granted 

Incashola's motion in limine, effectively suppressing the breath test evidence. The 

State appealed pursuant to § 46-20-103(2)(e), MCA, which permits an appeal by the 

State from any court order the substantive effect of which results in suppressing 

evidence.

¶7 Did the District Court abuse its discretion in suppressing breath test evidence 

based on its interpretation of an administrative rule?

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¶8 Montana closely regulates nearly all aspects of breath, blood and urine analysis 

procedures used to determine the alcohol concentration in a person charged with an 

alcohol-related driving offense. See §§ 23.4.201 through 23.4.225, ARM. A defendant 

charged with driving under the influence of alcohol is entitled to the procedural 

safeguards contained in the ARM, and where the State fails to lay a proper 

foundation for breath test evidence by complying with those procedural safeguards, 

the results of the breath test analysis are inadmissible. State v. Woods (Mont. 1997), 

947 P.2d 62, 63, 54 St.Rep. 1074, 1075 (citations omitted). In this case, the District 

Court excluded the breath test evidence based on its conclusion that the State could 

not lay the foundation required by § 23.4.213, ARM. 

¶9 Whether evidence is relevant and admissible is within the broad discretion of the 

district court and we will not overturn the court's decision absent an abuse of 

discretion. Woods, 947 P.2d at 63, 54 St.Rep. at 1075 (citation omitted). Where, as 

here, a discretionary ruling is based on a conclusion of law, we review that conclusion 

to determine whether the court correctly interpreted the law. See State v. 

Pendergrass (1997), 281 Mont. 129, 131, 932 P.2d 1056, 1057 (citation omitted).

¶10 Section 23.4.213, ARM, provides in pertinent part:

Field Certification (1) Breath analysis instruments shall be field certified for accuracy at 

least once every seven (7) days . . . .

. . . .

(b) field certification is valid when the results of the approved ethyl alcohol solution test is 

at target value plus or minus one hundredth (.01) grams per two hundred and ten liters. . . .

. . . .

(i) A proper field certification prior to any subject test and a proper field certification 

following a subject test shall create the inference that the breath analysis instrument was in 

proper working order at the time of the subject test. (j) A breath analysis instrument's field 

certification shall be considered valid for seven (7) days forward from the date of a proper 

field certification.

While the District Court did not provide a rationale for concluding that the State 

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could not lay the necessary foundation for admission of the breath test results under 

§ 23.4.213, ARM, it appears that the court determined that § 23.4.213(1)(i), ARM, 

created a conclusive negative inference in this case; that is, that the absence of a 

proper field certification following Incashola's breath test established that the 

Intoxilyzer was not in proper working order at the time of the test. 

¶11 We generally apply the same principles in construing administrative rules as are 

applicable to our interpretation of statutes. Bean v. State Bd. of Labor Appeals 

(1995), 270 Mont. 253, 257, 891 P.2d 516, 518-19 (citation omitted). The proper 

interpretation is first to be determined according to the language therein. Bean, 270 

Mont. at 257, 891 P.2d at 519. We simply ascertain and declare what is in terms or 

substance contained in the rule, neither inserting what has been omitted or omitting 

what has been inserted. Where several provisions or particulars are at issue, we are 

obligated to construe them to give effect to all, if possible. See § 1-2-101, MCA.

¶12 We look, then, to the language contained in § 23.4.213, ARM, and the facts of 

this case to determine whether the District Court erred in implicitly determining that 

subsection (1)(i) rendered the breath test results inadmissible for lack of foundation. 

Section 23.4.213(1)(i), ARM, provides that a proper field certification both before 

and after the breath test at issue creates an inference that the testing instrument was 

in proper working order at the time of the test. The language is clear and 

unambiguous in creating an inference in favor of the instrument being in proper 

working order under the specified circumstances. Equally clear in this case is that a 

proper field certification of the Intoxilyzer occurred on April 29, 1997, but that the 

certification effort on May 4, two days after Incashola's breath test, established that 

the Intoxilyzer was not working properly. Therefore, no proper field certification 

occurred after Incashola's test and, as a result, no inference was created under § 

23.4.213(1)(i), ARM, that the Intoxilyzer was in proper working order. 

¶13 At the same time, however, nothing in § 23.4.213(1)(i), ARM, creates a negative 

inference--much less the conclusive negative inference apparently ascribed to it by 

the District Court--that, absent a proper field certification both before and after the 

breath test at issue, the instrument was not in proper working order. To read such a 

provision into the rule is to ignore the language actually contained therein and to 

insert language omitted from the rule in derogation of our obligation to refrain from 

doing so. See § 1-2-101, MCA. 

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¶14 Moreover, the District Court's implicit determination that the absence of a 

proper field certification after Incashola's breath test rendered the breath test results 

inadmissible ignores the intended effect of the inference created under § 23.4.213(1)

(i), ARM, when proper field certifications do occur both before and after the breath 

test at issue. An "inference" is "a deduction which the trier of fact may make from 

the evidence." Section 26-1-501, MCA. Thus, it is clear that the inference created by 

§ 23.4.213(1)(i), ARM, is to be utilized by a trier of fact--at the appropriate stage in 

the proceedings--in determining whether the testing instrument was in proper 

working order. In other words, if the evidence establishes that proper field 

certifications were conducted both before and after the breath test at issue, the trier 

of fact must infer that the Intoxilyzer was in proper working order. Absent such 

evidence, no inference is created under § 23.4.213(1)(i), ARM, that the instrument 

either was or was not in proper working order. 

¶15 In any event, however, an inference is a deduction to be made from the evidence 

and nothing more. Consequently, even if the evidence established proper field 

certifications before and after the breath test at issue, other evidence could be 

introduced in an effort to undermine the persuasiveness of the proper field 

certification evidence and the inference to be drawn therefrom and to establish that 

the testing instrument was not in proper working order. Likewise, absent evidence of 

a proper post-breath test field certification, other evidence can be introduced in an 

effort to prove to the trier of fact that the testing instrument was operating properly 

at the time of the breath test at issue. By its terms, then, § 23.4.213(1)(i), ARM, is not 

a foundational requirement for the admissibility of breath test results. 

¶16 Furthermore, to conclude that subsection (1)(i) is a foundational requirement for 

admissibility would judicially nullify subsection (1)(j) of § 23.4.213, ARM, which 

provides that a field certification is to be considered valid for 7 days forward from 

the date of the test. When, as here, several provisions of a statute or rule are at issue, 

we are obligated to construe them to give effect to all of the provisions if possible. See

§ 1-2-101, MCA. Read together, the two subsections at issue here are not a model of 

clarity. Having determined above that subsection (1)(i) relates to the later evidentiary 

stage of the proceeding, however, we conclude here that § 23.4.213(1)(j), ARM, is a 

foundational requirement for admissibility of breath test results. A proper field 

certification of the testing instrument performed within 7 days before the test at issue 

constitutes an adequate foundation for admissibility of the breath test results; the 

absence of such a proper field certification renders the breath test results 

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inadmissible for lack of foundation. Here, the record establishes that a proper field 

certification was conducted on April 29, 1997, less than 7 days prior to Incashola's 

breath test on May 2, 1997. 

¶17 Incashola argues, however, that subsection (1)(i) of § 23.4.213, ARM, is a more 

specific provision than subsection (1)(j). From that premise, he contends that § 1-2-

102, MCA, which provides that when a general and particular provision are 

inconsistent, the particular provision controls, and our cases thereunder, require us 

to conclude that the District Court's interpretation of subsection (1)(i) is correct. We 

disagree. 

¶18 We determined above that subsection (1)(i) is an evidentiary stage provision, 

while subsection (1)(j) is a foundational requirement for admissibility. As a result, 

the two provisions are not a general and particular provision relating to the same 

matter, but are provisions relating to different stages of the proceeding. 

¶19 We conclude that the District Court erred in interpreting § 23.4.213, ARM, and 

we further conclude that the State laid the necessary foundation for the admission of 

the breath test results in this case. As discussed, both parties are free to offer other 

evidence at trial with regard to whether the Intoxilyzer was in proper working order 

on the date of Incashola's breath test. We hold that the District Court abused its 

discretion in granting Incashola's motion in limine.

¶20 Reversed and remanded for further proceedings consistent with this opinion.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

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