State v. Incashola, 98-114

• Decision Date: 23 July 1998
• Docket Number: No. 98-114,98-114
• Citation: 961 P.2d 745,289 Mont. 399,1998 MT 184
• Parties: STATE of Montana, Plaintiff and Appellant, v. Damon INCASHOLA, Defendant and Respondent.
• Court: Montana Supreme Court

Page 745

961 P.2d 745

1998 MT 184

STATE of Montana, Plaintiff and Appellant, v. Damon INCASHOLA, Defendant and Respondent.

No. 98-114.

Supreme Court of Montana.

Submitted on Briefs June 11, 1998.

Decided July 23, 1998.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Kim Christopher, Lake County Attorney, Robert J. Long, Deputy Lake County Attorney, Polson, for Appellant.

Rebecca T. Dupuis, C. Edward Hayes, Polson, for Respondent.

Gray, Justice.

¶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.

¶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?

¶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 (1997), 285 Mont. 124, 947 P.2d 62, 63 (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 (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) A 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 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...