State v. Garcia, 970443-CA

• Decision Date: 16 July 1998
• Docket Number: No. 970443-CA,970443-CA
• Citation: 965 P.2d 508
• Parties: 347 Utah Adv. Rep. 44 STATE of Utah, Plaintiff and Appellee, v. Jose A. Fidel GARCIA, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 508

965 P.2d 508

347 Utah Adv. Rep. 44

STATE of Utah, Plaintiff and Appellee, v. Jose A. Fidel GARCIA, Defendant and Appellant.

No. 970443-CA.

Court of Appeals of Utah.

July 16, 1998.

Scott C. Williams, Salt Lake Legal Defender Ass'n, Salt Lake City, for Defendant and Appellant.

E. Neal Gunnarson, Salt Lake Dist. Atty., and J. Kevin Murphy, Dist. Atty. for Salt Lake County, Salt Lake City, for Plaintiff and Appellee.

Before DAVIS, P.J., WILKINS, Associate P.J. and GREENWOOD, J.

OPINION

GREENWOOD, Judge:

Jose A. Fidel Garcia appeals the trial court's ruling allowing the State to invoke a statutory presumption that Garcia's breath alcohol test results were valid. Garcia argues his test results were inadmissible because the State failed to meet the standards established by the Department of Public Safety for administration of breath alcohol tests. We reverse, concluding the statutory presumption was not available to the State in this case.

BACKGROUND

On April 6, 1996, Garcia was cited for speeding and driving under the influence. Garcia was then subjected to a breath alcohol test. Garcia's test was conducted on a series 5000 Intoxilyzer instrument. At least every forty days, Highway Patrol Trooper Scott Hathcock completed calibration tests on that instrument to ensure its accuracy. As part of this procedure, Trooper Hathcock tested the instrument using "known reference samples"--i.e., breath samples with a known alcohol content--to confirm that the instrument accurately read those samples to within plus or minus .005 or five percent of the actual alcohol content. For the period relevant to Garcia's test, Trooper Hathcock recorded the results of these reference sample tests as "OK," indicating his opinion that the results were within an acceptable margin of error. He did not, however, record the actual numerical results obtained.

Before trial, Garcia filed a Motion to Suppress Results of Breath Test Based on Due Process Violations and State's Violation of Utah Code. Garcia argued that Trooper Hathcock's method of recording the reference sample test results violated Rule 714-500 of the Utah Administrative Code, requiring that the evidence of his breath alcohol test be suppressed. The trial court denied Garcia's motion.

Garcia pleaded guilty to driving under the influence but reserved his right to appeal the trial court's ruling on his motion to suppress. See State v. Sery, 758 P.2d 935, 939 (Utah Ct.App.1988) (recognizing conditional pleas). This appeal followed.

ISSUES AND STANDARD OF REVIEW

There are essentially two issues presented on appeal. The first is whether the trial court erred in interpreting Rule 714-500 of the Utah Administrative Code. Because the answer is purely a matter of statutory construction, we review the trial court's decision for correctness. See Salt Lake City v. Emerson, 861 P.2d 443, 445 (Utah Ct.App.1993).

If the trial court did err, the second issue is whether this particular violation of the Rule requires exclusion of Garcia's breath test evidence under section 41-6-44.3 of the Utah Code or suppression of that evidence under the Federal Due Process Clause. Because of its ruling on the first issue, the trial court did not reach this issue.

ANALYSIS

Recording Requirement of Rule 714-500

Garcia argues the trial court erred in ruling that the recording of reference sample test results as "OK" complied with Rule 714-500 of the Utah Administrative Code. He asserts that under the Rule, results of such tests conducted on series 5000 Intoxilyzers must be recorded to at least three decimal places.

Section 41-6-44.3 of the Utah Code, which allows for admission of documentary evidence as foundation to create a presumption of breath alcohol test result validity, directs the commissioner of the Department of Public Safety to issue regulations governing the procedures for breath alcohol tests. See Utah Code Ann. § 41-6-44.3(1) (1993). Rule 714-500 of the Utah Administrative Code was promulgated pursuant to that directive. See Utah Admin. Code R714-500-2A (1996).

Rule 714-500-5 addresses the requirements for "Instrument Certification." Id. R714-500-5. Subsection 714-500-5A states that "[a]ll breath alcohol testing instruments ... to be used for evidentiary purposes must be certified by brand and/or model by the Department." Id. R714-500-5A. Subsection 714-500-5B(3) states that "[t]he instrument shall analyze a reference sample ..., the result of which must agree with the reference sample predicted value within plus or minus .005 or 5% whichever is greater or such limits as set by the Department." Id. R714-500-5B(3). Subsection 714-500-5E provides that "[a]fter certification if it is determined by the Department that a specific instrument is unreliable and/or unserviceable, it will be removed from service and, [sic] certification may be withdrawn." Id. R714-500-5E.

Rule 714-500-6 addresses the requirements for "Program Certification." See id. R714-500-6. This section sets forth the criteria which law enforcement entities must meet in order to maintain a breath testing program. See id. R714-500-6D. Subsection 714-500-6D(1) requires that results of tests on a person's breath be expressed in grams per 210 liters and "be entered in a permanent record book." Id. R714-500-6D(1). Subsections 714-500-6D(3) and (4) require that a certified technician perform calibration tests "to certify the instruments" at least every forty days. Id. R714-500-6D(3), (4). One of these tests is the reference sample test, see id. R714-500-6D(4)2(g), the results of which "shall be kept in a permanent record book," id. R714-500-6D(5). Finally, subsection 714-500-6D(6) states, "[a]ll analytical results shall be ... reported ... to three decimal places for a 5000 series intoxilyzer. (For example, a result of 0.237g/210L shall be reported as ... 0.237 on a 5000 series intoxilyzer, or as stated by the Department. [) ]." Id. R714-500-6D(6).

It is this last subsection that Garcia argues Trooper Hathcock violated when he chose to record reference sample test results as "OK." According to Garcia, this subsection requires that such results be recorded to three decimal places. In response, the State argues that nothing in the plain language of the Rule explicitly states that the three decimal recording requirement applies to the results of reference sample tests. Accordingly, the State contends, the "analytical results" terminology in Rule 714-500-6D(6) does not apply to results of reference sample tests but, rather, applies only to results of tests conducted on actual arrestees. ¹

"When faced with a question of statutory construction, we look first to the plain language of the statute." Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520 (Utah 1997) (citation omitted). If the plain language is ambiguous, we may "seek guidance from the legislative history and relevant policy considerations." World Peace Movement v. Newspaper Agency, Inc., 879 P.2d 253, 259 (Utah 1994). However, where that guidance is insufficient, we must return to the regulation's language and give it "a reasonable and sensible construction." State v. GAF Corp., 760 P.2d 310, 313 (Utah 1988) (citations omitted). We must attempt to construe the regulation " 'so that effect is given to all its provisions,' " Brickyard Homeowners' Ass'n v. Gibbons Realty Co., 668 P.2d 535, 538 (Utah 1983) (citation omitted), and we must assume "that 'each term in the [regulation] was used advisedly; thus the ... words are read literally, unless such a reading is unreasonably confused or inoperable,' " Stephens, 935 P.2d at 520 (citation omitted).

As indicated above, the State's primary argument is that no violation of Rule 714-500 occurred in this case because nothing in Rule 714-500 plainly requires that reference sample test results be recorded to three decimal places. The State appears to rely most heavily on the fact that subsection 714-500-5, which requires reference sample testing before an instrument may be initially certified, contains no provision concerning how those test results should be recorded. Although we agree that the Rule is not a model of clarity, we nonetheless conclude that the State's argument, in light of the rules of construction set forth above, is untenable. Although we have no legislative history to guide us, we conclude that subsection 714-500-6D(6), when considered in context, requires that the results of reference sample tests, at least when those tests are conducted to ensure the continued accuracy of an instrument already certified under subsection 714-500-5, be recorded to at least three decimal places.

Preliminarily, we note that the reference sample tests at issue in this case are part of a series of calibration tests that must, as the State concedes, be conducted at least every forty days to ensure instrument accuracy. See Utah Admin. Code R714-500-6D(3), (4). We also note that although both subsection 714-500-6D(1), addressing arrestee breath tests, and subsection 714-500-6D(5), addressing reference sample tests, require that results be recorded, neither indicates exactly how this should be done. Only subsection 714-500-6D(6), which follows immediately after the provision that requires sample test results to be recorded, sets forth any method of recording, requiring that "[a]ll analytical results shall be ... reported ... to three decimal places for a 5000 series intoxilyzer."

However, contrary to the State's contention, nothing in the language of subsection 714-500-6D(6) or its location indicates an intent to exempt reference sample test results from its requirement. If, as the State suggests, the three decimal place requirement were intended to apply only to arrestee test results, one would expect that requirement to appear closer to the subsection directly dealing with arrestee tests. Instead, subsection 714-500-6D begins with two provisions addressing arrestee testing. See id. R714-500-6D(1), (2). Those provisions...