State v. Jenkins , 362 Mont. 481 ( 2011 )

November 15 2011
DA 11-0361
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 287STATE OF MONTANA,
Plaintiff and Appellee,
v.
JASON HOMER JENKINS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 10-163A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Suzanne C. Marshall; Marshall Law Firm, Bozeman, Montana
For Appellee:
Steve Bullock, Montana Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller,
Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: October 26, 2011
Decided: November 15, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Jason Jenkins appeals from his conviction for felony DUI after a jury trial in
March, 2011. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 On June 19, 2010, Bozeman Police Officer Joel Hiester observed Jason Jenkins
driving a motorcycle erratically. Hiester stopped Jenkins, administered field sobriety
tests, and arrested him for driving a motorcycle under the influence of alcohol. At the
Gallatin County Detention Center Jenkins agreed to a breath test using the Intoxilyzer
8000 device. The test showed that Jenkins had a blood alcohol content of .138. The
State charged Jenkins with DUI, fourth or subsequent offense, a felony, § 61-8-731,
MCA. That charge was tried to a jury in March, 2011 and Jenkins was convicted. The
District Court committed Jenkins to the Montana Department of Corrections for 13
months, followed by a five-year suspended sentence.
¶3 On appeal Jenkins contends that the District Court erred by admitting hearsay
evidence as part of the foundation for the admission of the results of his breath test.
STANDARD OF REVIEW
¶4 Determining the adequacy of the foundation for admission of evidence is a matter
within the sound discretion of the district court. State v. Pol, 2008 MT 352, ¶ 11, 346
Mont. 322, 195 P.3d 807. This Court reviews a district court’s rulings on admissibility of
evidence for abuse of discretion, which occurs if the trial judge acts arbitrarily or
unreasonable and substantial injustice results. State v. Bonamarte, 2009 MT 243, ¶ 13,
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351 Mont. 419, 213 P.3d 457; State v. Hendershot, 2007 MT 49, ¶ 19, 336 Mont. 164,
153 P.3d 619.
DISCUSSION
¶5 The State of Montana closely regulates breath analysis instruments like the
Intoxilyzer 8000, and the Montana Department of Justice has adopted regulations that
law enforcement agencies must follow to insure the accuracy of the results of breath tests.
State v. Johnston, 2011 MT 184, ¶ 6, 361 Mont. 301, 258 P.3d 417; State v. Delaney,
1999 MT 317, ¶ 8, 297 Mont. 263, 991 P.2d 461. The regulations require that the
accuracy of the instruments be certified annually by the State and once every 31 days in
the field, usually by the local law enforcement agency. Johnston, ¶ 7. The State must
demonstrate that the accuracy of the instrument was certified in accordance with the
regulations as part of the foundation for admission of breath test evidence. State v.
Incashola, 1998 MT 184, ¶ 8, 289 Mont. 399, 961 P.2d 745.
¶6 At Jenkins’ trial the State, through the testimony of Officer Hiester, submitted the
annual certification of the accuracy of the Intoxilyzer 8000 by the Forensic Science
Division of the Montana Department of Justice. That document was received without
objection. The State then offered through Hiester two field certification documents for
the device, prepared by an officer with the Gallatin County Sheriff’s Department.
Jenkins objected to the field certification documents as hearsay because Hiester, while
certified as a breath test specialist, was not the author or custodian of the documents.
¶7 On appeal Jenkins argues that the field certification documents were hearsay and
were admissible only upon compliance with M. R. Evid. 803(6). That Rule provides an
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exception to hearsay exclusion for “records of regularly conducted activity” as attested by
the “custodian or other qualified witness.” Jenkins contends that Hiester was not a
“custodian or other qualified witness” who could provide the required foundation for the
field certification documents under Rule 803 because he did not observe or participate in
the certification of the breath testing instrument. Jenkins contends that the District Court
therefore erred in considering the field certifications as part of the foundation for the
breath test evidence.
¶8 When a district court is considering the State’s foundation evidence preliminary to
determining whether to admit the results of a breath test, it must proceed under M. R.
Evid. 104(4); Delaney, ¶ 14. Rule 104(a) provides:
Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of evidence shall
be determined by the court. In making its determination it is not bound by
the rules of evidence except those with respect to privileges.
(Emphasis added.) It is established that when a district court is determining whether
there is adequate foundation for admission of breath test results in a DUI prosecution,
Rule 104(a) authorizes the court to do so without regard to whether the certification
forms are hearsay. Delaney, ¶ 16. In State v. White, 2009 MT 26, 349 Mont. 109, 201
P.3d 808, there is language that indicates that breath instrument certification documents
are hearsay and may not be received by the district court unless the State demonstrates an
exception to the hearsay rule. See e.g. White, ¶ 12. This language is inconsistent with
Delaney and with State v. Carter, 2005 MT 87, ¶ 32, 326 Mont. 427, 114 P.3d 1001,
where we followed Delaney and held that a defendant’s Sixth Amendment confrontation
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right was not implicated by the use of these certification reports. Although neither party
cited White in its briefs, we have overruled prior decisions when necessary to resolve
discrepancy in our case law, and we conclude that it is appropriate to do so here. See
Quantum Elec. v. Schaeffer, 2003 MT 29, ¶ 24, 314 Mont. 193, 64 P.3d 1026; Gilco v.
Permann, 2006 MT 30, ¶ 24, 331 Mont. 112, 130 P.3d 155. Therefore, to the extent that
White is inconsistent with Delaney, M. R. Evid. 104(a) and this opinion, it is overruled.
¶9 In the present case the State was not required to demonstrate that the field
certifications fell within an exception to the hearsay rule. Neither the admissibility of the
certifications nor whether they were an exception to the hearsay rule were determinative
of whether the District Court could consider them in deciding whether there was adequate
foundation for the breath test results. The existence of foundation is a question of law for
the district court to decide and is not an issue for the jury. The certifications are not
substantive evidence of the DUI offense. Delaney, ¶ 18.
¶10 Jenkins has not attempted to distinguish the clear rule of Delaney or M. R. Evid.
104(a) which control the result in this case. The District Court did not abuse its
discretion in admitting the results of the breath test. The conviction is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ JIM RICE
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