State v. West

• Decision Date: 31 May 2012
• Docket Number: A142519.,081153828
• Citation: 250 Or.App. 196,279 P.3d 354
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Donald Allen WEST, Defendant–Appellant.
• Court: Oregon Court of Appeals

250 Or.App. 196

279 P.3d 354

STATE of Oregon, Plaintiff–Respondent,

v.Donald Allen WEST, Defendant–Appellant.

081153828; A142519.

Court of Appeals of Oregon.

Argued and Submitted Oct. 10, 2011.

Decided May 31, 2012.

Rankin Johnson IV argued the cause and filed the brief for appellant.

Joanna Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

Defendant appeals his conviction for driving under the influence of intoxicants (DUII), ORS 813.010, raising several challenges to rulings related to the Intoxilyzer 8000 breath testing device and to the admission of breath test results. We conclude that there was no error and affirm.

We first summarize the pertinent statutes, administrative rules, and case law. Under ORS 813.300, the amount of alcohol in a person's blood at the time the person is alleged to have been driving a motor vehicle while under the influence of intoxicants, as shown by chemical analysis of the person's breath or blood, is indirect evidence that may be used at trial, along with other evidence, to determine whether the person was in fact under the influence of intoxicants.

ORS 813.160(1)(b) describes a “valid” chemical analysis of a person's breath as one that “is performed according to methods approved by the Department of State Police.” The statute further sets forth the responsibilities of the Department of State Police in connection with approval of the chemical breath analysis and the testing and certification of equipment used for that purpose:

“For purposes of this paragraph, the Department of State Police shall do all of the following:

“(A) Approve methods of performing chemical analyses of a person's breath.

“(B) Prepare manuals and conduct courses throughout the state for the training of police officers in chemical analyses of a person's breath, which courses shall include, but are not limited to, approved methods of chemical analyses, use of approved equipment and interpretation of test results together with a written examination on these subjects.

“(C) Test and certify the accuracy of equipment to be used by police officers for chemical analyses of a person's breath before regular use of the equipment and periodically thereafter at intervals of not more than 90 days. Tests and certification required by this subparagraph must be conducted by trained technicians. Certification under this subparagraph does not require a signed document.”

We have held that compliance with the requirements of ORS 813.160(1) is the equivalent of a foundation for admissibility of a chemical breath test and that the evidence is admissible in a criminal prosecution if the test was conducted pursuant to ORS 813.160(1). See State v. Warner, 181 Or.App. 622, 634, 47 P.3d 497,rev. den.,335 Or. 42, 57 P.3d 581 (2002) (using ORS 813.160(1) “to be valid” language as an example of a foundational requirement); State v. Chipman, 176 Or.App. 284, 294, 31 P.3d 478 (2001); State v. Balderson, 138 Or.App. 531, 535 n. 1, 910 P.2d 1138 (1996); see also State v. O'Key, 321 Or. 285, 293, 899 P.2d 663 (1995) (in the case of legislative recognition, there is no need for the court to determine scientific reliability).

The Department of State Police has implemented its authority under ORS 813.160 through administrative rules. OAR 257–030–0110 sets forth the criteria for approval of breath testing equipment:

“Any instrument or equipment to be used for the testing of a person's breath to determine the alcohol content of the blood may be approved by the Oregon State Police if one or more of the following criteria are met:

“(1) Submission by the manufacturer or distributor of the instrument of at least two reports of studies correlating blood analysis and breath tests performed with this instrument, conducted by two separate laboratories of governmental health or law enforcement agencies, or independent organizations, financially unrelated to the manufacturer or distributor of such instruments.

“(2) Provision of a production model of the instrument by the manufacturer or distributor to the Oregon State Police for a sufficient period of time to allow Oregon State Police technician(s) to conduct sufficient investigation and laboratory tests to adequately ascertain accuracy and reproducibility of the breath testing equipment.

“(3) Those instruments which have been found by the National Highway Traffic Safety Administration to conform to the model specifications for evidential breath testing devices, and which are listed on the Conforming Products List in the Federal Register.

“(4) Subsequent series of above instruments, so long as the subsequent changes and series do not diminish the instrument's ability to accurately determine blood alcohol content.

“[ Publications: Publications referenced are available from the agency.]”

(Brackets in original; emphasis added.) OAR 257–030–0120 specifically approves the Intoxilyzer 8000:

“The following breath testing equipment is approved under OAR 257–030–0110 for performing chemical analysis of a person's breath: The Intoxilyzer 8000:

“ Correlation studies performed with the Intoxilyzer 8000 by Oregon State Police technician(s) are incorporated as Appendix 2: Studies Performed with the Intoxilyzer TM 8000.”

(Brackets in original; emphasis added.)

Pretrial discovery in a criminal proceeding is governed by ORS 135.805 to 135.873. ORS 135.815(2) provides:

“Except as otherwise provided in ORS 135.855 and 135.873, in prosecutions for violation of ORS 813.010 in which an instrument was used to test a person's breath, blood or urine to determine the alcoholic content of the person's blood the district attorney shall disclose to a represented defendant at least the following material and information within the possession or control of the district attorney:

“(a) Any report prepared by a police officer relating to field tests, interviews, observations and other information relating to the charged offense;

“(b) Any report relating to the test results;

“(c) A copy of the form provided to the defendant under ORS 813.100(3)(b); and

“(d) Any checklist prepared by the operator of the instrument for the test.”

ORS 135.855 provides, in part:

“(1) The following material and information shall not be subject to discovery under ORS 135.805 to 135.873:

“ * * * * *

“(d) Schematics, source codes or software of an instrument that was used to test a person's breath, blood or urine to determine the alcoholic content of the person's blood that are not in the actual possession or control of the state.”

Against that legal backdrop, we consider the facts of this case, which are largely procedural: Officers took defendant into custody on suspicion of DUII and other offenses, and he submitted to a breath test on an Intoxilyzer 8000. The test indicated that defendant had a blood alcohol concentration of .11 percent. Defendant was charged with DUII.

Through discovery and a request for subpoena duces tecum, defense counsel sought to obtain information concerning the Intoxilyzer 8000. He asked for source codes, schematic diagrams, sales contracts, and Oregon State Police studies relating to the Intoxilyzer 8000. Defendant's requests included “[a]ll reports, tests, test results, and memorandum of any kind used by the legislature, the Oregon State Police, or any other governmental agency in the State of Oregon to determine the reliability, validity, or function of the Intoxilyzer 8000 breath test machine.”

The state objected, contending that the requests were too broad and were outside of the scope of discovery required by ORS 135.815, and, further, that source codes are expressly excluded from discovery by ORS 135.855. The state pointed out that the materials required to be disclosed under ORS 135.815 had been disclosed. Defendant contended that the materials were necessary to test the state's case, and asserted that the disclosure implicated defendant's constitutional rights to confront and cross-examine witnesses, to due process, to a jury trial, and to effective assistance of counsel.

When asked by the trial court whether he had attempted to obtain the information through publicly accessible sources, defendant's counsel stated that he had spent approximately 30 minutes on the telephone trying to obtain the information from the Department of State Police without success and admitted that 30 minutes did not “count” for very much. The trial court declined to order the discovery and denied the pretrial request for a subpoena. ¹ After trial to a jury, which included testimony from the arresting officer as well as the certified results of the Intoxilyzer 8000 test, defendant was convicted of DUII.

On appeal, defendant challenges the trial court's rulings in seven assignments of error. Defendant's first through fourth assignments challenge the trial court's rulings with respect to discovery and the requested subpoena. In his fifth assignment of error, defendant contends that the trial court erred in denying his request for indigent defense funds to hire an expert to testify concerning the Intoxilyzer 8000. In his sixth assignment, defendant contends that the trial court erred in denying his motion in limine to exclude the results of the Intoxilyzer test. In his seventh assignment, defendant contends that the court erred in refusing to give a requested jury instruction.

We address first defendant's contentions, raised in his first through fourth assignments, that the trial court erred in denying him discovery concerning the Intoxilyzer and in declining to order a pretrial inspection pursuant to ORS 136.580(2) of evidence concerning the Intoxilyzer.² We review the trial court's rulings for errors of law, State v. Divito, 330 Or. 319, 5 P.3d 1103 (2000) (whether a party is entitled to discovery is a question of law), and for...