State v. Troy Miles Svelmoe ( 2016 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 43181
STATE OF IDAHO, )
)
Boise, May 2016 Term
Plaintiff-Respondent, )
)
2016 Opinion No. 58
v. )
)
Filed: May 27, 2016
TROY MILES SVELMOE, )
)
Stephen W. Kenyon, Clerk
Defendant-Appellant. )
_______________________________________ )
Appeal from the District Court of the First Judicial District of the State of Idaho,
Kootenai County. Hon. John Mitchell, District Judge.
The judgment of the district court is vacated, and the case is remanded.
John M. Adams, Kootenai County Public Defender, Coeur d’Alene, for appellant.
Jay W. Logsdon argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
Theodore S. Tollefson argued.
_____________________
J. JONES, Chief Justice
Appellant Troy Svelmoe appeals a felony conviction for driving under the influence
(“DUI”). Svelmoe was pulled over in Post Falls, Idaho, for vehicle equipment violations. The
officer suspected that Svelmoe was driving under the influence and asked Svelmoe to perform
three field sobriety tests. Svelmoe failed two of the tests and was placed under arrest. The officer
then asked Svelmoe to take a breath alcohol test. Svelmoe agreed and provided two breath
samples. The results of the breath tests showed an alcohol concentration (BAC) of .108 and .106.
The State filed a criminal complaint charging Svelmoe with felony DUI. At the
preliminary hearing, the State did not present the results of the breath tests, and the magistrate
judge dismissed the complaint for lack of probable cause to support the charge. The prosecution
then refiled the criminal complaint and introduced the results of the breath tests at a second
preliminary hearing. The judge concluded that the prosecution presented substantial evidence to
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support the charge.
At the district court, Svelmoe filed a motion to dismiss the DUI charge, a motion to
suppress the breath test results, and a motion in limine to exclude the breath test results. The
district court denied all three of Svelmoe’s motions, and the matter proceeded to a jury trial. The
jury found Svelmoe guilty. Svelmoe appealed, challenging the district court’s denial of his
pretrial motions.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On May 9, 2014, Svelmoe was subject to a traffic stop in Post Falls, Idaho, for vehicle
equipment violations. Another officer was called to the scene to conduct a DUI investigation.
The officer noted that Svelmoe had bloodshot eyes and smelled of alcohol. The officer then
conducted three field sobriety tests, of which Svelmoe failed two. Svelmoe was placed under
arrest for DUI. After Svelmoe was placed under arrest, the officer read Svelmoe the ALS
advisory form and asked Svelmoe to take a breath alcohol test.1 Svelmoe agreed and provided
two breath samples. Testing of the two samples revealed a BAC of .108 and .106.
Because Svelmoe had two prior DUI convictions, the State charged him with felony DUI.
A preliminary hearing was held on August 21, 2014. At that hearing, the State did not present the
results of the breath tests, but instead relied on the officers’ testimony and the results of the field
sobriety tests. According to the State, it did not have the necessary certified documentation to
introduce the breath test results into evidence at that time. The magistrate judge held that the
State did not establish probable cause to support the charge and dismissed the case.
On September 30, 2014, the State refiled the complaint charging Svelmoe with felony
DUI. Svelmoe filed a motion to dismiss, alleging that the refiling of the complaint violated his
due process rights. A preliminary hearing was held on October 31, 2014. This time the State
introduced the breath test results. The magistrate judge concluded that the State presented
substantial evidence to support the felony DUI charge and bound the matter to the district court.
The magistrate judge declined to rule on Svelmoe’s motion to dismiss, concluding that it was a
matter to be decided by the district court.
Svelmoe refiled his motion to dismiss with the district court. Additionally, Svelmoe filed
a motion to suppress the results of the breath tests, alleging that they were obtained through an
1
The ALS advisory form notifies a suspect of the penalties for refusing to submit or failing to complete evidentiary
testing as required under Idaho Code section 18-8002(3).
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unlawful search and seizure. Svelmoe also filed a motion in limine to exclude evidence of the
breath tests, alleging that the standard operating procedures (“SOPs”) promulgated by the Idaho
State Police were unreliable and were void for noncompliance with the Idaho Administrative
Procedures Act (“IDAPA”). The district court held a hearing on February 11, 2015, and denied
all three of Svelmoe’s motions.
The case proceeded to a jury trial on February 17, 2015. At trial, the State introduced the
results of the breath tests. Prior to introducing the breath test results, the State presented
testimony from the arresting officer, who described his prior training using the Intoxilyzer 5000,
and the procedures he followed when administering the breath tests. He additionally testified that
the Intoxilyzer 5000 used on May 9, 2014, was properly calibrated and passed all of the internal
tests to ensure that it was functioning properly. Svelmoe objected to the introduction of the
breath test results based on lack of foundation. The district court overruled Svelmoe’s objection
and admitted the test results into evidence. The jury returned a verdict of guilty. Judgment was
entered on April 8, 2015. Svelmoe timely appealed, challenging the district court’s denial of his
pretrial motions.
II.
ISSUES ON APPEAL
1. Whether the district court erred in denying Svelmoe’s motion to dismiss.
2. Whether the district court erred in denying Svelmoe’s motion to suppress.
3. Whether the district court erred in denying Svelmoe’s motion in limine.
III.
STANDARD OF REVIEW
Questions regarding a court’s jurisdiction and due process are questions of law over
which this Court exercises free review. State v. Kavajecz, 139 Idaho 482, 483, 80 P.3d 1083,
1084 (2003); Idaho Historic Pres. Council, Inc. v. City Council of City of Boise, 134 Idaho 651,
654, 8 P.3d 646, 649 (2000).
The Court reviews the denial of a motion to suppress using a bifurcated standard. State v.
Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183 (2009). “This Court will accept the trial court’s
findings of fact unless they are clearly erroneous.” Id. “However, this Court may freely review
the trial court’s application of constitutional principles in light of the facts found.” Id.
“The trial court’s judgment concerning admission of evidence shall only be disturbed on
appeal when there has been a clear abuse of discretion.” State v. Perry, 150 Idaho 209, 218, 245
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P.3d 961, 970 (2010) (internal quotation marks omitted). In determining whether the trial court
abused its discretion the Court considers:
(1) [W]hether the trial court correctly perceived the issue as one of discretion; (2)
whether the trial court acted within the outer boundaries of its discretion and
consistently with the legal standards applicable to the specific choices available to
it; and (3) whether the trial court reached its decision by an exercise of reason.
Id. (quoting Hall v. Farmers All. Mut. Ins. Co., 145 Idaho 313, 319, 179 P.3d 276, 282 (2008)).
IV.
ANALYSIS
1. The district court did not err in denying Svelmoe’s motion to dismiss.
Svelmoe contends that this Court should reverse the district court’s denial of his motion
to dismiss on two grounds. First, Svelmoe argues that the magistrate judge erred in concluding
that he did not have jurisdiction to consider Svelmoe’s motion to dismiss. Second, Svelmoe
argues that the district court erred in ruling that Svelmoe’s due process rights were not violated
by the State’s refiling of the criminal complaint.
a. We decline to address whether the magistrate judge erred in concluding he did not
have jurisdiction to consider Svelmoe’s motion to dismiss.
Idaho Code section 1-2208(3) provides that, subject to the rules promulgated by this
Court, a district judge may assign the following criminal and quasi-criminal proceedings to
magistrates:
(a) Misdemeanor and quasi-criminal actions;
(b) Proceedings to prevent the commission of crimes;
(c) Proceedings pertaining to warrants for arrest or for searches and seizures; and
(d) Proceedings for the preliminary examination to determine probable cause,
commitment prior to trial or the release on bail of persons charged with criminal
offenses.
The magistrate judge can be assigned the trial, related hearings, and sentencing in a felony
proceeding “when approved by order of the Supreme Court upon an application by the
administrative judge of a judicial district.” I.C.R. 2.2(c)(1).
At the preliminary hearing, the magistrate judge concluded that his jurisdiction was
limited to considering whether the State had established probable cause to support the felony
DUI charge. The magistrate reasoned that if he determined that there was probable cause, the
matter would be bound over to the district court and that would be the appropriate time and place
for Svelmoe to move to dismiss the complaint. In fact, Svelmoe did refile his motion to dismiss,
and he obtained a ruling from the district court.
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We need not reach the question of whether the magistrate judge had jurisdiction to
consider Svelmoe’s motion to dismiss. Idaho Criminal Rule 52 provides that “[a]ny error, defect,
irregularity or variance which does not affect substantial rights shall be disregarded.” Any error
that the magistrate allegedly committed in declining to hear Svelmoe’s motion to dismiss was
inconsequential. Svelmoe was able to file his motion with the district court and obtain a ruling
there. Svelmoe has failed to allege how his rights were affected by having the district court,
rather than the magistrate, rule on his motion to dismiss. Therefore, we decline to address this
issue on appeal.
b. The district court did not err in ruling that Svelmoe’s due process rights were not
violated by the State’s refiling of the criminal complaint.
The refiling of a criminal charge following a dismissal at a preliminary hearing is not a
per se violation of the due process clauses of the Idaho and U.S. Constitutions. Stockwell v. State,
98 Idaho 797, 805–07, 573 P.2d 116, 124–26 (1977). However, refiling a criminal complaint
may violate a defendant’s due process rights where it is “done for the purpose of harassment or
delay or forum-shopping.” Id. at 806, 573 P.2d at 125. In Stockwell, this Court concluded that
good cause may exist to refile a criminal complaint where the prosecutor believes in good faith
that the magistrate committed error or where the prosecutor seeks to introduce new evidence. Id.
In Rufener v. Shaud, this Court reaffirmed the holding in Stockwell, concluding that the refiling
of a criminal complaint does not violate due process “unless done without good cause or in bad
faith.” 98 Idaho 823, 825, 573 P.2d 142, 144 (1977).
Here, it is undisputed that the State refiled the criminal complaint charging Svelmoe with
felony DUI. It is also undisputed that the State introduced the breath test results at the second
preliminary hearing but not at the first preliminary hearing. Svelmoe argues that the introduction
of new evidence alone does not establish that a complaint was refiled in good faith. Rather,
Svelmoe argues that Stockwell requires that, at the time of the first preliminary hearing, the
evidence had to be unknown and undiscoverable. Svelmoe alleges that the State did not have
good cause to refile in this case because the State knew of the breath test results at the time of the
original hearing and made no attempt to introduce them or seek a continuance until the proper
certification could be obtained. The State argues that Stockwell does not require that additional
evidence be “newly discovered” in order for the State to have good cause to refile a criminal
complaint.
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The Court in Stockwell concluded that it “views critically the practice of ‘shopping’
among magistrates or the repeated refiling of a charge until a favorable ruling is obtained.” 98
Idaho at 806, 573 P.2d at 125 (quoting Nicodemus v. Dist. Ct. of Oklahoma Cnty., 473 P.2d 312,
316 (Okla. Crim. App. 1970)). The Court went on to state that “[t]his is not to say that when new
evidence becomes available or when the prosecutor believes in good faith that the magistrate
committed error, the charge should not be refiled.” Id. (quoting Nicodemus, 473 P.2d at 316).
Svelmoe seems to interpret the phrase “when new evidence becomes available” as requiring that
the State be unaware of the evidence at the time of the original hearing. The district court
disagreed with this interpretation, holding that “new evidence” includes evidence that was not
presented at the first hearing, regardless of whether the evidence was known to the prosecution at
the time of that hearing.
The Idaho Court of Appeals addressed this issue in State v. Moser and held that
“Stockwell does not require that the evidence presented be entirely new and previously
undiscovered.” No. 36933, 2010 WL 9589226, at *2 (Ct. App. Oct. 7, 2010). The court
concluded that “[t]o hold otherwise would require the state to make its entire trial presentation at
the preliminary hearing or run the risk of a magistrate finding that something less than the entire
presentation fell short of probable cause.” Id. Although the Court of Appeals decision was non-
published, it was correct and we adopt its holding and reasoning. Adopting the approach set forth
by Svelmoe would essentially transform the prosecutor’s burden of establishing probable cause
at a preliminary hearing into a full trial presentation. Additionally, requiring the prosecution to
put forth all evidence known to it in the preliminary hearing—regardless of whether the
prosecutor believed it was necessary to establish probable cause—would increase delay and cost
in pretrial proceedings. This would also unnecessarily burden the courts with excessive pretrial
evidentiary hearings and result in the slower administration of justice.
The State must have the opportunity to refile a criminal complaint after dismissal at a
preliminary hearing. This Court has previously held that the State may not appeal a magistrate’s
dismissal of a criminal complaint at a preliminary hearing. State v. Ruiz, 106 Idaho 336, 338, 678
P.2d 1109, 1111 (1984). Rather, its remedy was to “simply file[] another complaint with another
magistrate, in effect having its assertion of error resolved in a new preliminary hearing.” Id. at
337, 678 P.2d at 1110. In Ruiz, this Court concluded that the State’s refiling of the complaint
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rather than appealing the magistrate’s decision best served the interests of both the prosecution
and the defense.
[A]s we hold, it is clear that the prosecution can immediately thereafter initiate a
new complaint before a different magistrate and [e]nsure the public’s right to the
speedy administration of justice. An accused, at the same time, can and will
obtain a speedy determination of his rights and position without the
inconvenience, delay and expense of a lengthy appellate process.
Id. As the State’s only recourse to challenge a dismissal at a preliminary hearing is refiling the
complaint, it would not favor the interests of justice to require that the State present “newly
discovered” evidence to show a refiling was made in good faith. That is not to say that the
refiling of a criminal complaint can never rise to the level of a due process violation. As this
Court articulated in Stockwell, the refiling of a criminal complaint may violate due process where
a defendant shows that it was done for the purpose of harassment, delay, or forum-shopping. 98
Idaho at 806, 573 P.2d at 125.
Svelmoe has provided no evidence tending to show that the State refiled the complaint
for an improper purpose. There is no indication that the State was forum shopping as both
preliminary hearings were before the same magistrate. Additionally, this was not a situation
where the State repeatedly refiled. The State alleges that it did not present evidence of the breath
test results at the original hearing because it did not have certified documentation to introduce
the results, and the prosecutor believed that the officers’ testimony was sufficient to establish
probable cause to support the DUI charge. After the magistrate judge dismissed the complaint,
the State timely refiled and introduced the breath test results in the second preliminary hearing.
The fact that the breath tests were known to the prosecutor at the time of first preliminary
hearing, by itself, does not establish that the refiling was done for the purpose of delay or
harassment.
We hold that the district court did not err in concluding that Svelmoe’s due process rights
were not violated by the State’s refiling of the criminal complaint.
2. The district court did not err in denying Svelmoe’s motion to suppress.
At the district court, Svelmoe filed a motion to suppress the results of the breath tests,
alleging that the results were obtained through an unlawful search and seizure. Svelmoe argues
that he did not voluntarily consent to the breath tests because he was read the ALS advisory form
informing him of the penalties for refusing a breath test and such penalties were coercive. The
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district court held that Svelmoe voluntarily consented to the breath tests and denied Svelmoe’s
motion to suppress.
As the State argues, Svelmoe’s argument is foreclosed by our recent decision in State v.
Haynes, 159 Idaho 36, 355 P.3d 1266 (2015). In Haynes, the defendant argued her consent to
breath testing was involuntary because the civil penalties imposed for refusing a breath test were
coercive. Id. at 45, 355 P.3d at 1275. We held that requiring a person to submit to a breath test is
not an unreasonable search where the officer has reasonable grounds to believe that the person
was operating a motor vehicle while under the influence of alcohol. Id. at 45–46, 355 P.3d at
1275–76. Ultimately, we concluded that whether consent was voluntary was immaterial because
consent is an exception to the warrant requirement and “does not apply where the search was
reasonable and a warrant was therefore not required.” Id at 46, 355 P.3d at 1276.
Our holding in Haynes is directly applicable here. Svelmoe was operating a motor vehicle
when he was pulled over for vehicle equipment violations. The arresting officer testified that
Svelmoe had bloodshot eyes and smelled of alcohol. The officer additionally testified that
Svelmoe failed two of three field sobriety tests. Based on the foregoing, the officer had
reasonable grounds to believe that Svelmoe was operating a motor vehicle while under the
influence of alcohol. Under Haynes, the request that Svelmoe submit to a breath test was not an
unreasonable search and no warrant was required. Therefore, Svelmoe’s argument that his
consent was involuntary is irrelevant.
We hold that the district court did not err in denying Svelmoe’s motion to suppress the
breath test results.
3. The district court erred in denying Svelmoe’s motion in limine and in admitting the
breath test results.
Svelmoe argues that the State could not rely on the SOPs promulgated by the Idaho State
Police to establish the reliability of the breath test results because the SOPs do not provide for a
reliable procedure. Additionally, Svelmoe argues that the SOPs were void because they were not
promulgated in compliance with IDAPA. Svelmoe’s arguments are substantially the same
arguments that we addressed in Haynes, 159 Idaho 36, 355 P.3d 1266, and State v. Riendeau,
159 Idaho 52, 355 P.3d 1282 (2015).
Under Idaho Code section 18-8004(4),
the results of any test for alcohol concentration and records relating to calibration,
approval, certification or quality control performed by a laboratory operated or
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approved by the Idaho state police or by any other method approved by the Idaho
state police shall be admissible in any proceeding in this state without the
necessity of producing a witness to establish the reliability of the testing
procedure for examination.
IDAPA 11.03.01.014 provides the administrative rules adopted by the Idaho State Police for
breath alcohol testing.2 Haynes, 159 Idaho at 41–42, 355 P.3d at 1271–72 (citing IDAPA
11.03.01.014 (2013)).. “Pursuant to these rules, breath tests are to be administered in conformity
with standards ‘issued in the form of analytical methods and standard operating procedures.’” Id.
at 42, 355 P.3d at 1272 (quoting IDAPA 11.03.01.014.03 (2013)).
As discussed at length in Haynes, the Idaho State Police issued amended SOPs for breath
tests in 2013 (“2013 SOPs”), changing the word “must” in some provisions to “should,” thereby
making formerly mandatory provisions permissive. Id. at 42–43, 355 P.3d at 1272–73. In
Haynes, the defendant filed a motion in limine seeking to exclude evidence of breath test results.
Id. at 41, 355 P.3d at 1271. The defendant argued that the 2013 SOPs did not provide a reliable
procedure that ensured accurate test results, and the 2013 SOPs were void because they were not
promulgated in compliance with IDAPA. Id. at 42–43, 355 P.3d at 1272–73. The magistrate
denied the defendant’s motion in limine, but concluded that the State would still have to establish
the accuracy of the test results at trial. Id. at 43, 355 P.3d at 1273. The district court affirmed the
magistrate’s ruling. Id. at 44, 355 P.3d at 1274.
On appeal, this Court held that the 2013 SOPs constituted rules under IDAPA and were
void because they were not adopted in compliance with the Act. Id. at 45, 355 P.3d at 1275.
However, we concluded that the State did not have to rely on the 2013 SOPs to establish an
adequate foundation because a foundation could be established either by showing the test was
administered in conformity with applicable test procedures or through expert testimony. Id.
Although the first avenue was foreclosed because the 2013 SOPs were void, we found that the
State could still have established an adequate foundation at trial through expert testimony. Id.
Based on this reasoning, we held that “[b]ecause Ms. Haynes pled guilty prior to trial, the
magistrate court never had to determine whether the State could present sufficient evidence to
establish that foundation,” and therefore, “[t]he district court did not err in holding that the
magistrate did not err in denying the motion in limine.” Id.
2
IDAPA 11.03.01.014 was substantially amended on April 11, 2015. However, those amendments were not in
effect when Svelmoe was arrested and subject to the breath tests on May 9, 2014.
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In State v. Riendeau, we were again presented with the question of whether breath test
results should have been excluded because the 2013 SOPs were void for noncompliance with
IDAPA. 159 Idaho at 54–55, 355 P.3d at 1284–85. In Riendeau, an evidentiary hearing had been
held regarding the motion in limine. Id. at 54, 355 P.3d at 1284. At the evidentiary hearing, the
State presented expert testimony from a forensic scientist who helped draft the 2013 SOPs. Id.
The forensic scientist testified the SOPs required that the instrumental readings between the first
and second breath sample be within .020 of each other in order to establish an objective
measurement for the lack of external contamination of the breath samples. Id. The forensic
scientist then testified that the breath samples taken from Riendeau (.175 and .181) were within
.020 of each other, ruling out external contamination. Id. The forensic scientist also testified that
a performance verification must be completed for the Intoxilyzer 5000 during the course of
breath testing, which further guarantees the reliability of the test results. Id.
The State also offered testimony from the arresting officer. Id. The arresting officer
testified that he checked the suspect’s mouth to clear it of any substances and observed the
suspect for fifteen minutes before administering the breath test. Id. Additionally, the officer
testified that he conducted the required performance verification, which showed the Intoxilyzer
5000 was functioning properly. Id.
The magistrate denied Riendeau’s motion in limine, concluding that the arresting officer
followed the 2013 SOPs, which ensured the accuracy of the test results. Id. The district court
affirmed that ruling. Id. at 53, 355 P.3d at 1283. On appeal, we upheld the denial of Riendeau’s
motion in limine. Id. at 55, 355 P.3d at 1285. We concluded that although the 2013 SOPs had
been declared void in Haynes, the district court’s affirmance of the magistrate’s ruling should be
upheld because the testimony of the forensic scientist and the arresting officer established a
sufficient foundation to admit the test results. Id.
When the district court ruled on Svelmoe’s motion in limine, our decisions in Haynes and
Riendeau had not been issued. In denying Svelmoe’s motion, the district court relied on State v.
Besaw, 155 Idaho 134, 306 P.3d 219 (Ct. App. 2013). There, the Court of Appeals addressed
whether breath test results should have been excluded because the 2013 SOPs did not provide for
a reliable procedure. Id. at 142–44, 306 P.3d at 227–29. The Court of Appeals concluded that
“[a]lthough Besaw has exposed some troubling information about the manner in which the SOPs
for breath testing have been developed or amended, we are not persuaded that he has
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demonstrated that the SOP procedures are incapable of yielding accurate results.” Id. at 144, 306
P.3d at 229. In the present case, the district court reasoned that Besaw was controlling on this
issue and, although it believed that the SOPs weren’t promulgated according to IDAPA, it had to
follow the Court of Appeals’ ruling. Ultimately, the district court concluded that, under Besaw,
the State could rely on compliance with the 2013 SOPs to establish a foundation for the breath
test results.
However, under our holding in Haynes, the 2013 SOPs were void and the State could not
rely on compliance with those procedures to establish a foundation for breath test results. 159
Idaho at 45, 355 P.3d at 1275. Therefore, the district court erred in concluding that the State
could rely on the 2013 SOPs to establish a foundation for the breath test results. Additionally,
unlike Riendeau, the State did not present sufficient evidence to establish a foundation to admit
the test results without reliance on the 2013 SOPs.
As we stated in Haynes, an adequate foundation for the breath test results can be
established either by showing the test was administered in conformity with applicable test
procedures or through expert testimony. 159 Idaho at 45, 355 P.3d at 1275. The first avenue was
not available in this case because the 2013 SOPs were void. Where that avenue was unavailable,
the State needed to present expert testimony to establish the reliability of the testing procedures
and the accuracy of the test results. It did not.
Prior to the introduction of the breath test results, the State presented testimony from the
arresting officer. The officer testified that he complied with standard procedure and, prior to
obtaining the breath sample, he checked Svelmoe’s mouth for any foreign objects and observed
Svelmoe for fifteen minutes. The officer further testified that he had been trained to use the
Intoxilyzer 5000 and was certified to use that machine to administer a breath alcohol test on May
9, 2014. Additionally, the officer testified that the results of the breath tests (.108 and .106) were
within the range of each other required to be considered reliable. However, the State did not
introduce any expert testimony to establish that the procedures followed were reliable and likely
to produce an accurate result. Here, the State only presented testimony from the arresting officer
who was not certified as an expert on breath testing procedures. Under these circumstances, the
testimony of the arresting officer alone did not establish the reliability of the testing procedures
and the accuracy of the breath test results. We hold that the State did not establish an adequate
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foundation for the breath test results and that the district court therefore abused its discretion in
admitting the test results into evidence.
“In the case of an incorrect ruling regarding evidence, this Court will grant relief on
appeal only if the error affects a substantial right of one of the parties.” State v. Ehrlick, 158
Idaho 900, 911, 354 P.3d 462, 473 (2015). “To establish harmless error, the State must prove
‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’” Id. (quoting State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010)). The State
has failed to allege or demonstrate how the admission of the breath test results did not contribute
to the verdict finding Svelmoe guilty of felony DUI. Therefore, we vacate the conviction for
felony DUI and remand for further proceedings.
V.
CONCLUSION
We vacate the judgment of the district court and remand for further proceedings.
Justices EISMANN, BURDICK, W. JONES and HORTON CONCUR.
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