State v. Swindell, 2003-425-C.A.

• Decision Date: 12 April 2006
• Docket Number: No. 2003-425-C.A.,2003-425-C.A.
• Citation: 895 A.2d 100
• Parties: STATE v. Christopher SWINDELL.
• Court: Rhode Island Supreme Court

Page 100

895 A.2d 100

STATE v. Christopher SWINDELL.

No. 2003-425-C.A.

Supreme Court of Rhode Island.

April 12, 2006.

John Grasso, for Plaintiff.

Aaron L. Weisman, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice GOLDBERG, for the Court.

In this case, the Supreme Court is called upon, yet again, to determine whether evidence of a suspected drunk driver's blood alcohol concentration, as measured by a chemical analysis of the driver's breath, is admissible in a criminal prosecution based on an allegation that the equipment used to conduct the test was not tested for accuracy in accordance with methods approved by the state Department of Health (DOH). The defendant, Christopher Swindell (defendant), appeals from a judgment of conviction for driving under the influence of alcohol (DUI). The defendant argues that the trial justice erred by admitting blood alcohol test results into evidence because, he contends, the state failed to prove that the machine, used to measure the level of alcohol in his blood, had been properly tested for accuracy in accordance with G.L.1956 § 31-27-2. For the reasons stated herein, we affirm the Superior Court judgment.

Facts and Travel

On September 7, 2002, shortly before 3 a.m., defendant was stopped by an East Providence police officer because, according to the officer, his vehicle had "a plate light out" and he was "somewhat leaning into the windshield of the car" as he was driving. During the stop, the officer detected an odor of alcohol and observed that defendant's eyes were bloodshot. The officer's attention was drawn to "an empty bottle of E & J Brandy on the rear passenger's side of the floor" and defendant's trembling hands. The officer asked defendant whether "he had been drinking." The defendant replied "that he had [consumed] a couple of beers at his friend's house." The officer noted "that the defendant mumbled" and spoke slowly, "as if fatigued."

The officer conducted field sobriety tests at the scene that defendant failed. He was placed under arrest and transported to the police station. While en route to police headquarters, the officer detected "a strong odor of intoxicating liquor coming from the defendant, [and] again observ[ed that] his speech was slow[.]" At the police station, breath samples from an Intoxilyzer 5000 machine were obtained from defendant with his consent. The officer recorded two samples — one registered a blood alcohol level of 0.113 and the second registered a blood alcohol level of 0.122. The defendant was charged with DUI in violation of § 31-27-2.¹

On January 14, 2003, defendant was convicted of DUI in District Court and exercised his right to a de novo trial in Superior Court. On May 21, 2003, a hearing was held on defendant's pretrial motion to suppress the blood alcohol evidence. The defendant argued that the testing procedure did not comply with DOH guidelines because the results of the sample test were not within a 5 percent margin of error allowed by DOH. According to defendant, the test results did not take into account a potential 3 percent margin of error in the alcohol solution used to test the machine. The defendant alleged that the 3 percent range of error in the test sample, when combined with the machine's 5 percent margin of error, rendered the test invalid. Therefore, defendant argued that the blood alcohol evidence should have been suppressed.

Before the Superior Court, Richard Minogue (Minogue), an experienced DOH inspector, testified that breath test machines are tested for accuracy every thirty days using known alcohol solutions.² To insure the accuracy of a machine, DOH performs six tests — two tests using alcohol solutions of 0.08, 0.10, and 0.20 respectively. According to Minogue, the test results must fall within a 5 percent margin of error³ for the machines to be certified as accurate.⁴ Minogue testified that if a breath test machine does not produce a test reading within a 5 percent margin of error, the machine will be taken out of service.

Minogue testified that the test samples had a 3 percent range of error with respect to the sample's indicated alcohol content.⁵ However, DOH inspectors assume that the test solution contains the amount of alcohol specified on the sample without factoring in the potential 3 percent deviation. According to Minogue, when he tested the machine used in this case with the 0.08 solution, it produced readings of 0.076 and 0.075. The 0.10 solution provided a reading of 0.095 for the first test and a reading of 0.096 for the second test. These readings were acceptable and within the DOH's regulations. The defendant argued that because of the 3 percent margin of error, the 0.10 solution potentially could have an alcohol content of 0.103. If so, defendant contended, the 0.095 and 0.096 test results fell outside the required 5 percent range of error.

The trial justice denied defendant's motion to suppress and held that any breath test machine that produced a test in the range of 0.095 to 0.105 was accurate according to DOH procedures, despite a margin of error in the solution itself. Relying on this Court's decision in State v. Cluley, 808 A.2d 1098, 1103 (R.I.2002), the trial justice found that DOH's interpretations of its own regulations is accorded judicial deference. The trial justice further held that defendant's blood alcohol tested in the statutory range of intoxication notwithstanding the purported margin of error in the test samples used by the agency in carrying out its statutorily mandated functions. The trial justice ruled that in accordance with this Court's holding in State ex. rel. Town of South Kingstown v. Reilly, 745 A.2d 745, 747 (R.I.2000), and State ex. rel. Town of Middletown v. Snyder, 692 A.2d 705, 706 (R.I. 1997) (mem.), a defendant must demonstrate that the deviation from a DOH regulation actually affected the validity of the test results introduced against him. The trial justice noted that the test results in this case were sufficiently high so that, even if the Court were to factor in every error asserted by the defense, "his readings would still be in the statutory range of intoxication[.]" The trial justice concluded that the DOH certification procedure was proper and the certification of the machine used to test defendant's breath complied with the regulations. Accordingly, he denied the motion to suppress the test results.⁶

When the case proceeded to trial, defendant waived his right to a jury and agreed to proceed to trial on the basis of stipulated facts. Based on those facts, the trial justice found that the traffic stop premised on an equipment violation was proper; that the officer had probable cause to believe defendant was driving under the influence of alcohol; and, that his blood alcohol level, as measured by a chemical analysis of his breath, was 0.122 and 0.113. The defendant was found guilty and was sentenced in accordance with the provisions of § 31-27-2. This appeal ensued.

Analysis

Before this Court, defendant argues that the blood alcohol evidence should have been suppressed because the state failed to prove that the machine used in this case had been properly tested for accuracy in compliance with DOH regulations. The defendant asserts that the DOH did not comply with its own procedures — that to be certified as accurate, the machine must perform within a 5 percent margin of error of the known sample. According to defendant, because each solution carries a potential 3 percent range of error, the test results could exceed the acceptable margin of error allowed by the regulation. The defendant contends that a 3 percent margin of error in the solution resulted in tests that were outside the regulation's 5 percent range and therefore, the machine should have been taken out of service. Additionally, defendant argues that one of the 0.08 alcohol solution test results was outside the acceptable margin of error for a machine to be certified as accurate. Consequently, defendant asserts, the state failed to establish that the machine was properly tested in accordance with DOH regulations and the test results should have been suppressed.

I Validity of Defendant's Test Results

We note at the outset that because defendant has failed to establish the unreliability of his test results, his contention that DOH failed to comply with its own regulation is immaterial. This Court has held that "the suppression of evidence is justified only where the deviation from `compliance with regulations established by the director of the Department of Health of the State of Rhode Island * * * [has] actually affected the validity of the test results.'" Cluley, 808 A.2d at 1104 (quoting Snyder, 692 A.2d at 706). Therefore, before the test may be excluded, the validity of defendant's test results must be called into question, notwithstanding any deviation from the testing protocol. Id. Here, defendant has not met this strict condition precedent with respect to the reliability of his breath samples, but rather, has challenged the test results on the ground that the DOH did not comply with its regulations — an argument that specifically was rejected in Cluley.

The defendant argues that "[t]he actual test results obtained * * * on the night of his arrest are completely irrelevant to the legal question at issue in this case." He contends that "[a]ny suggestion that the machine's inaccuracy or unreliability would somehow inure to the benefit of the defendant * * * is improper speculation wholly unsupported by any evidence in the record." These contentions, however, disregard our decision in Cluley in which we held that the results of Cluley's tests were not brought into question simply because the testing machine registered a slightly lower amount than the amount in the test solution. Cluley, 808 A.2d at 1104. "Indeed, such a slight under-reporting in the machine that the police later used...