1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42994

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

CARLOS ADRIAN CRUZ

- ROMERO ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2016 Opinion No. 26

Filed: March 31, 2016
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Jerome County. Hon. John K. Butler , District Judge.
Judgment of conviction for felony driving under the influence, vacated

. Sara B. Thomas, State Appellate Public Defender; Maya P. Waldron , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello , Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Judge
Carlos Adrian Cruz

- Romero appeals from his judgment of conviction for felony driving under the influence. Romero argues that the district court erred by granting the State’s motion in limine to exclude evidence that the Intoxilyzer machine used to test hi s breath

- alcohol content was not working properly. For the reasons set forth below, we vacate Cruz

- Romero’s judgment
of conviction

. I.

FACTUAL & PROCEDURAL BACKGROUND
Police arrested Cruz

- Romero on April 27, 2014, for driving under the influence. At the jail, police administered a breathalyzer test, which returned results of 0.097 and 0.096. The State charged Cruz

- Romero with felony DUI, Id aho Code §§ 18

- 8004, 18

- 8005 (6); possession of an2

open container in a vehicle, I.C. § 23

- 505 ; driving without privi leges, I.C. § 18

- 8001; and resisting and obstructing, I.C. § 18

- 705. Prior to trial, the State filed a motion in limine asking the court to prevent Cruz

- Romero
from pres enting evidence that the Intoxilyzer machine used on Cruz

- Romero had tested out of
tolerance 1 both before and after his breathalyzer test

. At the evidentiary hearing, Deputy Sedlmayr, a breath

- test specialist, testified about the specific Intoxilyzer mach ine used to take
Cruz

- Romero’ s sample. The court granted the State’s motion to exclude evidence of the machine’s malfunctioning, stating: [A]s far as the evidence of the malfunctioning of the Intox 5000, the evidence before the Court, at this time, demons trates that between the certification of the machine on April 8th and the recertification on May 9th that it does appear, at least from the logs, that the machine was working properly at that time. There is no indication about a tolerance. Presumptively, the State’s evidence will demonstrate the certification of the Intoxilizer [sic], the reliability of the test results. Absent expert testimony on the subject, the Court would find that any evidence of indications that the Intox 5000 was out of tolerance e ither before April 8th of 2014 or after May 9, 2014, is not of probative value. And certainly if the State does intend to call Ms. Cutler, then that certainly may change the analysis, but at this time, the Court does find that the test results before Apri l 8th and after May 9th are not relevant and would not be admissible at trial.

Cruz

- Romero subsequently entered a conditional plea to the felony driving under the influence charge, reserving the right to appeal the district court’s in limine ruling; the State
dismissed the remaining charges. The court sentenc ed Cruz

- Romero to a unified ten

- year sentence with three years determinate, but then suspended the sentence and placed him on probation

. Cruz

- Romero t imely appeals

. II.
ANALYSIS
Cruz

- Romero contends that the district court erred when it prevented admission of the Intoxilyzer results from before April 8 and after May 9 , thus depriving him of his right to attack
the reliability and accuracy of his test results

. He specifically argues that evidence of the

1 An Intoxilyzer 5000 will return an “out of tolerance” reading during a calibration check where “the results obtained for the performance verification check were outside the high and low limits set for the solution.” See I DAHO S TATE P OLICE , I NTOXILYZER 5 000 Q UICK R EFERENCE M ATERIALS ( Dec. 20 10 ).3

machine’s malfunctions, both prior to and after his breathalyzer test, is relevant and should have been admissible at trial to enable the jury to assess the reliability of the breat halyzer results.
The decision whether to admit evidence at trial is within the province of the trial court
and will not be reversed absent a clear abuse of discretion

. State v. Richardson , 156 Idaho 524, 527, 328 P.3d 504, 507 (2014). However, t he question of relevancy is not a disc retionary matter, as there is no issue of credibility o r finding of fact for the trial court to resolve prior to deciding to admit or reject evidence. I daho R ule of E vidence 402; State v. Raudebaugh , 124 Idaho 758, 764, 864 P.2d 596, 602 (1993). A court’ s inquiry into whether evidence is relevant is limited to determining if the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be
without the e vidence. I.R.E. 401; State v. Stevens , 146 Idaho 139, 143, 191 P.3d 217, 221 (2008)

. Whether a fact is of consequence or material is determined by its relationship to the legal theories presented by the parties. State v. Johnson , 14 8 Idaho 664 , 671 , 227 P.3d 918 , 925 (20 1 0). A relevancy determination is a matter of law which this Court reviews de novo. Raudebaugh , 124 Idaho at 764, 864 P.2d at 602; State v. Aguilar , 154 Idaho 201, 203, 296 P.3d 407, 409 (Ct. App. 2012).
Otherwise relevant evidence ma y be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
I.R.E. 403 ; State v. Grist , 147 Idaho 4 9, 52, 205 P.3d 1185, 1188 (2009 ). A court must
undertake a balanc ing determination before deciding to exclude evidence under I.R.E. 403. See
State v. Crowe , 135 Idaho 43, 48, 13 P.3d 1256, 1261 (Ct. App. 2000). An I.R.E. 403 balancing
determination by the district court is reviewed for an abuse of discretion. Grist , 147 Idaho at 52,
205 P.3d at 1188

. Over questions of law, we exercise free review. State v. O’Neill , 118 Idaho 244, 245, 796 P.2d 121, 122 (1990). Here, t he district court’s decision to exclude evidence of the machine’s malfunctioning

rest s on a combination of errors of law

. First , the court erred when it found that the evidence
was not relevant. E vidence of a particular Intoxilyzer machine’s malfunctions is relevant for the purpose of impeaching the accuracy and reliability of test results

. By legislative enactment, breathalyzer machines are deemed reliable for the limited foundation al purpose of having test results admitted into evidence, as long as the State introduce s evidence that the designated state agency approved the machine and an of ficer operated the machine in compliance with approved4

standards. I.C. § 18

- 8004(4); State v. Healy , 151 Idaho 734, 737, 264 P.3d 75, 78 (Ct. App. 2011); State v. Howell , 122 Idaho 209, 212, 832 P.2d 1144, 1147 (Ct. App. 1992)

. A dmissibility
of test results does not equate to sufficiency of evidence to sustain a conviction. State v.
Pressnall , 119 Idaho 207, 211, 804 P.2d 936, 940 (Ct. App. 1991). The prosecution still carries the burden of persuading the jury that the test results are accurate. S tate v. Ward , 135 Idaho 400, 404, 17 P.3d 901, 905 (Ct. App. 2001)

. “A defendant charged with driving under the influence by proof of excessive alcohol content is entitled to offer any competent evidence tending to impeach the results of the evidentiary tests admitted against him.” Pressnall , 119 Idaho at 209, 804 P.2d at 938. This
Court has established that a defendant may challenge whether a breathalyzer accurately measured breath alcohol concentration, whether the particular device was working proper ly at the time of the breath test, and whether the breath test was properly administered. See
, e.g. , State
v. Tomlinson , 159 Idaho 112, 121, 357 P.3d 238, 247 (Ct. App. 2015); State v. Hardesty , 136 Idaho 707, 710, 39 P.3d 647, 650 (Ct. App. 2002); Ward , 135 Idaho at 404, 17 P.3d at 905

. Evidence that a particular machine has a history of malfunction ing would be relevant to determining whether the particular device was working properly at the time the breath test was
administered

. See Pressnall , 119 Idaho at 211, 804 P.2d at 940

. Here, Cruz

- Romero’s breathalyzer test occurred on April 27. T he calibration of the Intoxilyzer machine had tested within tolerance before his test on April 8 and again after his test on May 9. However, the machine had sev eral i nexplicable out of tolerance test results occurring
both before and after the calibration checks : on April 5 , May 15, and May 16. Then, on August 5, the machine tested out of tolerance for one of the test solutions

. 2 T he police department sent the test solution off to have it checked

-- the results of which came back normal. The police department then sent the entire machine to the forensic lab to have it examined. The forensic lab could find nothing wrong with the machine, but suggested that the m achine’s calibration issues could have been caused by a leaking hose, loose connection, or faulty solution jar. Deputy Sedlmayr testified that after he changed solution jars, the machine’s calibration
issues did not recur. He also testified that if a n In toxilyzer machine is out of tolerance at the time of a breathalyzer test, the machine will not allow the test to proceed. But, he could not answer

2 The Intoxilyzer machine at issue is calibrated to a 0.08 test solution and a 0.20 test solution. Here, the issue with the machine was its calibration to the 0.20 test solution.5

with certainty whether a machine testing within tolerance might still have issues

. He opined that
the particular machine used on Cruz

- Romero was operating correctly on the day of Cruz

Romero’s test because the machine had not given any out of tolerance results between t he two
successful calibration tests

. A n acceptable calibration result , even one occurr ing on the day of the challenged test , does not establish that a machine is working correctly as a matter of law. See In re Hubbard , 152 Idaho 879, 883, 276 P.3d 751, 755 (Ct. App. 2012). Whether a n Intoxilyzer machine was working properly at a particula r date and time is a question of fact reserved for the trier of fact. Moreover, it is improper for a court to base a relevancy determination on its own findings of fact. The machine’s history of malfunctioning , at any capacity, would have a tendency to s how a probability that Cruz

- Romero’s test results may not have been accurate. The accuracy of his breathalyzer result is a fact material to his conviction , as the accuracy of the result is a fact that the State must establish beyond a reasonable doubt

. T herefore, evidence of the machine’s prior and subsequent malfunctioning is relevant. Second, the court erred by conditioning its decision to exclude the proffered evidence on
Cruz

- Romero’s lack of an expert witness. In its ruling, the court s tated, “abs ent expert testimony . . . any evidence of indications that the Intox 5000 was out of tolerance either before April 8th of 2014 or after May 9, 2014, is not of probative value.” An expert witness is not required for a defendant to challenge the reliability or validity of a breathalyzer test. Ward , 135 Idaho at 404, 17 P.3d at 905 (holding defendant may challenge breathalyzer test through cross

examination of State’s witness testifying about the test or by using expert witness). Cruz

Romero could have challenged the reliability or validity of the test by cross

- examining any State witness testifying about the breathalyzer test. Third, the district court erred when it found that the evidence could be excluded because
it had no pr obative value. Implicit in the court’s finding is the conclusion that because the evidence had no probative value, it could be excluded pursuant to I.R.E. 403. Here , the court did not engage in balancing the probative value of the evidence against the da nger of unfair prejudice, confusion of the issues, or misleading the jury . Instead, the court simply concluded
that the evidence was “ not of probative value. ” However, this finding conflicts with established
case law. See Pressnall , 119 Idaho at 211, 80 4 P.2d at 940 . E vidence that this machine ha d a history of inexplicably testing out of tolerance has probative value as to whether the machine6

was working properly at the time of Cruz

- Romero’s test. The evidence should have been presented to the trier of fact, who would have been in the position to assess all of the evidence on the issue of whether the breathalyzer result established Cruz

- Romero’s guilt beyond a reasonable
doubt. Moreover , because the court did not balance the probative value against the prejudicial effect, as is required under I.R.E. 403, the district court erred in excluding the evidence without undertaking such analysis

. See State v. Crowe , 135 Idaho 43, 48, 13 P.3d 1256, 1261 (Ct. App. 2000).
III.
CONCLUSION
E vidence of the machine’s malfunctioning was relevant to the accuracy and reliability of
Cru z

- Romero’s breathalyzer results and because the district court did not engage in any balancing determination under I.R.E. 403, the district court erred when it excluded the relevant
evidenc e . Therefore, we reverse the district court’s order granting the State’s motion in limine,
vacate Cruz

- Romero’ s judgment of conviction , and remand for further proceedings consistent with this opinion. Chief Judge MELANSON and Judge HUSKEY CONCUR

.