State v. Turner
| Decision Date | 12 July 2012 |
| Docket Number | No. 20100714–CA.,20100714–CA. |
| Citation | 283 P.3d 527,712 Utah Adv. Rep. 34,2012 UT App 189 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Randy James TURNER, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Jason A. Schatz, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges McHUGH, VOROS, and DAVIS.
¶ 1 Randy James Turner appeals from his conviction for driving under the influence of alcohol (DUI) in violation of Utah Code section 41–6a–502, a third degree felony. SeeUtah Code Ann. §§ 41–6a–502, –503(2) (2010). Turner argues that the breath test procedures adopted by the Commissioner of the Department of Public Safety (the Commissioner) pursuant to Utah Code section 41–6a–515(1) violate rule 702 of the Utah Rules of Evidence. SeeUtah Code Ann. § 41–6a–515(1); Utah R. Evid. 702.1 Alternatively, Turner asserts that section 41–6a–515 is an unconstitutional infringement on the Utah Supreme Court's power to enact rules of evidence. SeeUtah Const. art. VIII, § 4 (). Turner also contends that the admission of the breath test results violated his due process rights both because the results are unreliable and because section 41–6a–515 unconstitutionally shifted the burden of proof from the State to Turner. We affirm.
¶ 2 In June 2007, a police officer stopped Turner for making several lane changes and a U-turn without signaling. Suspecting that Turner was intoxicated, the officer requested the assistance of another officer to conduct a DUI investigation. Turner admitted to drinking “about five beers.” After administering several field sobriety tests, the officers determined that Turner exhibited signs of impairment and arrested him. One of the officers at the scene obtained Turner's consent to a breath test. After inspecting Turner's mouth and waiting seventeen minutes, the officer used a portable Intoxilyzer (Intoxilyzer) to test Turner's breath alcohol concentration. The test revealed a breath alcohol concentration of 0.170 grams, which is over twice the legal limit of 0.08 grams.2SeeUtah Code Ann. § 41–6a–502(1). The officer did not test Turner more than once and did not confirm the Intoxilyzer results with a contemporaneous blood test or other alternative testing method.
¶ 3 Before trial, Turner filed a motion to suppress the Intoxilyzer results. Turner argued that Utah Code section 41–6a–515 violates the Utah Constitution's delegation of power to the Utah Supreme Court to establish court rules by supplanting the requirements of rule 702 of the Utah Rules of Evidence. SeeUtah Const. art. VIII, § 4. Turner also claimed that the State's “periodic accuracy verification process” for Intoxilyzers, as well as its suspect-specific testing methods, were inadequate to ensure reliable test results, thereby violating Turner's due process rights under the Utah and United States Constitutions. The State responded by challenging each of Turner's positions.
¶ 4 At a hearing on Turner's motion to suppress, two experts testified about the procedures for maintaining and calibrating Intoxilyzer machines and for administering Intoxilyzer tests. The State called a trooper (Trooper) for the Utah Highway Patrol (highway patrol), who was a member of the Intoxilyzer and alcohol crew. The defense presented an emeritus professor of pharmacy (Professor) from a state university.
¶ 5 Trooper testified that as part of his primary duties, he maintained Intoxilyzers in several counties. He explained that this included “check[ing] each [I]ntoxilyzer every 40 days, verify[ing] that [the Intoxilyzers were] functioning properly, provid[ing] the supplies, respond[ing] to any issues that any officers might have, troubleshoot[ing], maintain[ing], [and] basically just check[ing to] make sure that [the Intoxilyzers were] working properly.” To gain the skills necessary to perform his job, Trooper attended a ten-day course taught by the manufacturer of the Intoxilyzer and also received additional training from his supervisors. After describing his duties and training, Trooper testified regarding the internal diagnostic tests the Intoxilyzer automatically conducts before each individual breath test to verify that the machine is operating properly. He then identified the various tests he performed every forty days, as required by rule R714–500–6 of the Utah Administrative Code. Specifically, he described a series of checks he conducts to confirm that the Intoxilyzer will disallow an improper test, including pressing the start button or breathing into the machine at the wrong time, holding a source of alcohol next to the breath tube, and placing alcohol on his tongue immediately before blowing into the machine. Trooper explained that Intoxilyzers are designed to measure alcohol in the deep lung air and that these checks ensure that the Intoxilyzer is properly disallowing tests where mouth alcohol is detected.
¶ 6 Trooper also testified that the State uses a “wet bath simulator,” also known as an external calibrator, every forty days to “check the [I]ntoxilyzer's known internal standards” by simulating a breath test. He explained that the wet bath simulator uses a known ratio of water to alcohol to test the machine. If the Intoxilyzer is working accurately, it should register a reading of 0.100 whenever that solution is used. However, Trooper indicated that the administrative rule governing the calibration of Intoxilyzers allows a margin of error of “plus or minus 5 percent or .005, whichever is greater.” He also reported that the testing solution used as the standard to measure the accuracy of the Intoxilyzer results is commercially produced by the manufacturer of the wet bath simulator and then independently tested by an unaffiliated laboratory to ensure that the water-to-alcohol ratio in the solution is as represented.
¶ 7 During direct examination, the State asked Trooper whether other states require two or more breath tests per DUI suspect, and Trooper replied that some states do, but that other states, like Utah, require only a single breath test. Trooper also noted that although some states require a calibration verification, such as a wet bath simulator, whenever a DUI suspect is tested, other states join Utah in not requiring pretest calibration in the field. Turner did not raise any objections to Trooper's qualifications or his testimony.
¶ 8 On cross-examination, the defense asked Trooper why the highway patrol performed only one breath test on DUI suspects instead of performing two or more tests to verify accuracy by means of comparison. Trooper explained that multiple tests are unnecessary because “the sample is continuously analyzed during the test” and that the Intoxilyzer is “sampling or testing that same [breath] sample several times a second as it's processing through.” In response to the defense's further inquiry, Trooper explained that it would “be extremely difficult to contaminate a person's breath” and that even belching while blowing on the Intoxilyzer would not contaminate the results.
¶ 9 The defense's expert, Professor, testified that if an external calibrator, such as a wet bath simulator, is not used at the time a DUI suspect is tested, then the procedure “is not recognized forensically as a reliable procedure.” He explained that “testing ... once every 40 days to check to see if the machine is operating properly ... doesn't assure that the machine's operating [properly] at the time that the individual subject is being tested.” Professor also testified that the majority of states require duplicate testing of a DUI suspect's breath and opined that duplicate results should be obtained to guarantee accurate and reliable results.
¶ 10 In addition to the expert testimony, Turner presented reports from various organizations and experts in the field regarding the best practices recommended to ensure accurate Intoxilyzer results. The reports assert that “[b]reath alcohol measurements should be conducted on at least duplicate independently exhaled ... breath samples” and that external calibration with a wet bath simulator or another type of simulator should be performed before each test of a DUI suspect.
¶ 11 After the hearing, the trial court issued a memorandum decision and order. It first ruled that Utah Code section 41–6a–515 was constitutional. Second, the trial court considered the admissibility of the Intoxilyzer results under rule 702 of the Utah Rules of Evidence, reasoning that Trooper's testimony provided a threshold showing of reliability. In making this determination, the trial court recognized that it is “not the function of the court in [its] gatekeeper role to decide which procedure is more reliable.” Instead, the court recognized that its proper role was to “determine only that the [Intoxilyzer] test procedures the State utilizes, if not generally accepted by the relevant scientific community, meet a threshold showing of reliability, are based on sufficient data, and have been reliably applied in this case.”
¶ 12 After the trial court's ruling, Turner entered a guilty plea, specifically preserving his right to appeal the trial court's ruling. He then filed a timely appeal challenging the trial court's denial of his motion to suppress the Intoxilyzer results and the subsequent entry of his conviction and sentence.
¶ 13 On appeal, Turner first contends that the trial court erred in admitting the Intoxilyzer results under rule 702 of the Utah Rules of Evidence because the calibration and maintenance procedures established by the Commissioner under Utah Code section 41–6a–515(1) are unreliable. We review a trial court's admission of expert testimony “under an abuse of discretion standard,” reversing only where “the decision exceeds the limits...
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