State v. Anderson, Docket No. 32038 (Idaho App. 4/27/2007)
| Decision Date | 27 April 2007 |
| Docket Number | Docket No. 32038. |
| Parties | STATE OF IDAHO, Plaintiff-Appellant-Cross Respondent, v. ROBERT ANDERSON, Defendant-Respondent-Cross Appellant. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. D. Duff McKee, District Judge; Hon. Thomas P. Watkins, Magistrate.
Decision of the district court on intermediate appeal, setting aside jury verdict and vacating conviction for excessive DUI, affirmed in part, reversed in part, and remanded.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for appellant. Lori A. Fleming argued.
Ringert, Clark Chtd., Boise, for respondent. James G. Reid argued.
The state appeals from the district court's intermediate appellate decision and order reversing, on the ground of insufficient evidence, Robert Anderson's conviction for misdemeanor driving under the influence with an alcohol concentration of .20 or more. Anderson cross-appeals on four alternative grounds for relief addressed and rejected by the district court. We affirm the district court's order in part, reverse in part, and remand.
Following a single vehicle traffic accident, Anderson was arrested for driving under the influence of alcohol. At the jail, he performed three breath tests on the Intoxilyzer 5000. The first returned an alcohol concentration of .22 and the second .19. Because the variance exceeded .02, the arresting officer, pursuant to Idaho State Police standard operating procedure for breath testing,1 had Anderson perform a third test, which returned an alcohol concentration of .24.
Anderson was charged by complaint with driving with "an alcohol concentration of 0.20 . . . or more, as shown by an analysis of his blood, breath or urine by a test requested by a police officer . . . ." Idaho Code § 18-8004C(1) (). Anderson moved to dismiss the charge, contending that because the test that registered .19 alcohol concentration was a valid test, he could not be properly convicted of excessive DUI as the state could not prove this element beyond a reasonable doubt. The magistrate denied the motion, based in part upon the state's assertion that it would explain the reason for the .19 result through expert testimony.
At trial, the jury was instructed the parties had stipulated that all of the elements of I.C. § 18-8004(1)(a), i.e., driving with an alcohol concentration of .08 or more and hereinafter referred to as "simple DUI," had been established and that the only issue for the jury to resolve was whether Anderson had an alcohol concentration of .20 or more. The state called two witnesses. The arresting officer testified, in summary, that the three tests were performed at one-minute intervals, that he noticed no irregularities in the testing procedures, that Anderson performed the three tests correctly, and that the Intoxilyzer 5000 accepted each of the breath samples and returned the referenced results. The state's expert, David Laycock, testified that the.19 test might have occurred because Anderson may not have blown as hard or as long on this sample as he did on the first or third samples. The expert further testified that because the machine was calibrated low, to Anderson's benefit, and because the .22 and .24 results were within .02 of each other, in his opinion Anderson's alcohol concentration was at least .20. The jury returned a guilty verdict.
Anderson appealed to the district court on numerous grounds. The district court reversed the conviction for excessive DUI holding, in essence, that the state failed to prove the disputed element beyond a reasonable doubt. The district court also expressly addressed, and rejected four alternative grounds for relief advanced by Anderson. The case was then remanded to the magistrate for further proceedings.2 The state appeals from the reversal of the conviction for excessive DUI and Anderson cross-appeals from the denial of his alternative grounds for relief.
A. Was the State's Evidence Sufficient to Prove Beyond a Reasonable Doubt that Anderson Had an Alcohol Concentration of .20 or More?
Idaho Code § 18-8004C requires as an essential element that a driver have an alcohol concentration of .20 or more "as shown by an analysis of his blood, breath or urine by a test requested by a police officer." On intermediate appeal, the district court held that the evidence adduced at trial was insufficient to sustain a conviction for excessive DUI, I.C. §§ 18-8004C, 18-8004(1)(a). The court first reasoned that if the state's evidence is that a defendant's breath alcohol concentration is both greater than and less than .20, the statutory threshold for this offense, then the evidence is insufficient as a matter of law to meet the burden of proof beyond a reasonable doubt. The district court then focused on whether the state presented competent evidence on which the jury could rationally find that the .19 blow was an invalid sample that could be disregarded. The district court concluded that the state had failed to present such evidence, and because all three alcohol concentration tests were deemed valid samples, the state had failed to prove the element of an alcohol concentration of .20 or more.
The state argues that in order to sustain a conviction for excessive DUI, it need not present any trial evidence invalidating the .19 test result and, in the alternative, that if such a showing is required, that it was made. We address each in turn.3
The state first contends that in order to sustain a conviction for excessive DUI over a sufficiency of the evidence challenge, it need not have presented any trial evidence invalidating the .19 test result. We disagree. Evidence is sufficient to support a verdict where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of the crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998). We agree with the district court's analysis that if multiple valid tests have been done, and at least one result is less than the statutory threshold for the offense, the state cannot satisfy its burden of proof beyond a reasonable doubt simply by asking the jury to disregard the result showing innocence, for a verdict of guilty in that instance would be based on little more than speculation. In this light, it is important to note that the jury was asked to determine guilt based upon three conflicting test results from analysis done by the state's machine. With respect to the only element at issue, two test results showed guilt and the third showed innocence as to excessive DUI. Such evidence is not sufficient to support a criminal conviction.
The district court next focused on whether the state presented competent evidence to "explain" the .19 test result so that the jury could properly disregard it. With variation in terminology, we agree with the district court's analysis. In State v. Mills, 128 Idaho 426, 913 P.2d 1196 (Ct. App. 1996), a prosecution for simple DUI, I.C. § 18-8004(1)(a), the defendant gave two breath samples on the Intoxilyzer 5000, returning results of .10 and .09. Mills moved to dismiss on the ground that an express statutory provision, I.C. § 18-8004(2),4 prohibited his prosecution for simple DUI if one of the tests requested by the police officer showed an alcohol concentration of less than the then-existing .10 threshold. On appeal, this Court agreed, holding:
Idaho Code § 18-8004(2) plainly speaks of "a test," which the [Idaho Department of Law Enforcement] in turn defines as consisting of at least two separate breath samples. We find this IDLE requirement of two samples to be inconsistent with the plain language of the statute. We hold that one sample constitutes "a test," as that term is used in I.C. § 18-8004(2), and if that sample shows a BAC level below 0.10, the accused cannot be prosecuted for DUI under this statute. Furthermore, if more than one sample is taken, each valid sample constitutes a test. If any of those samples falls below 0.10 then, again, the accused cannot be prosecuted for DUI under I.C. § 18-8004. . . . However, taking two samples for quality control purposes does not permit the state to disregard one valid sample that shows an alcohol concentration of less than 0.10. Consequently, because one of Mills's breath samples fell below 0.10, and the state made no showing that the sample was an invalid aberration, Mills cannot be prosecuted for DUI.
Mills, 128 Idaho at 429, 913 P.2d at 1199 (emphasis added).5
As noted by the state, there is no corresponding express statutory provision precluding prosecution for excessive DUI where a test sample results in a reading of an alcohol concentration under .20. From this premise, the state asserts that this Court's holding in Mills is not relevant to the instant inquiry. We disagree and hold that the general evidentiary principles set forth in Mills apply equally to the circumstance presented here, namely a sufficiency-of-the-evidence inquiry where the state's tests returned at least one result of less than the minimum alcohol concentration necessary for a conviction. Accordingly, the state was required to show at trial that the .19 result was not a valid sample or test, or, in other words, that this test result was an "invalid aberration" such that the finder of fact could properly disregard it.
The state argues that, at trial, it established that the .19 blow was an invalid sample in several ways, all based upon the testimony of its expert witness. The state first asserts that it satisfied its burden through Laycock's testimony that Anderson may not have blown as hard or as long on the .19 sample as he did on the first or third samples and...
To continue reading
Request your trial