State v. Levanger

March 17 2015
DA 14-0530
Case Number: DA 14-0530
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 83STATE OF MONTANA,
Plaintiff and Appellee,
v.
DOUGLAS WAYNE LEVANGER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-14-33A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Andrew J. Breuner, Attorney at Law, Gallatin Gateway, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: February 11, 2015
Decided: March 17, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Douglas Wayne Levanger (“Levanger”) appeals from the District Court’s order
denying his motion to exclude the Intoxilyzer 8000 breath test results. We affirm.
ISSUE
¶2 Whether the District Court abused its discretion when it denied Levanger’s motion
to exclude the Intoxilyzer results.
BACKGROUND
¶3 On April 14, 2013, Trooper Rehbein arrested Levanger on charges of driving
under the influence of alcohol and placed him in handcuffs in the backseat of the patrol
vehicle. Trooper Blaine Heavner accompanied Trooper Rehbein, who was on his last day
of field-training status. At 8:40 a.m., the troopers transported Levanger to the Gallatin
County Detention Center for a breath test using an Intoxilyzer 8000.
¶4 Approximately five minutes into the drive, Trooper Rehbein stopped the vehicle
after realizing that he had not checked Levanger’s mouth for substances. The
Intoxilyzer’s operational checklist recommends that the subject refrain from oral
ingestion of any material for twenty minutes prior to the test. Upon inspection, Trooper
Rehbein discovered that Levanger had chewing tobacco in his mouth and asked him to
spit it out. Trooper Rehbein then visually inspected the mouth, asking Levanger to open
his mouth wide and lift his tongue, but he did not physically check the mouth.
¶5 At 8:59 a.m., the group arrived at the Gallatin County Detention Center.
Levanger’s breath sample was taken at 9:11 a.m. using the Intoxilyzer 8000 machine.
The test results indicated Levanger’s blood alcohol content was 0.126.
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¶6 Levanger was convicted in Justice Court of misdemeanor driving under the
influence, first offense, and appealed to the District Court. On April 14, 2014, Levanger
moved to exclude the Intoxilyzer results, arguing that they were obtained in violation of
the machine’s checklist. The District Court conducted an evidentiary hearing and heard
testimony. During direct examination of Trooper Rehbein, Levanger introduced a Breath
Analysis Report Form bearing Rehbein’s signature and the operational checklist.
Trooper Rehbein testified that he observed the suggested deprivation period, starting the
deprivation period at 8:51 a.m. and not administering the test until 9:11 a.m. He
estimated that eight minutes of the twenty-minute period were spent driving. Trooper
Rehbein explained that he adjusted his rearview mirror to observe Levanger, who was
handcuffed and falling asleep. The District Court denied Levanger’s motion to exclude.
Levanger pled guilty, reserving the right to appeal the denial of the motion.
STANDARD OF REVIEW
¶7 We review a district court’s evidentiary rulings for an abuse of discretion. State v.
Fenton, 1998 MT 99, ¶ 11, 288 Mont. 415, 958 P.2d 68. “The determination of whether
evidence is relevant and admissible is left to the sound discretion of the trial judge and
will not be overturned absent a showing of abuse of discretion.” Fenton, ¶ 11.
DISCUSSION
¶8 Issue: Whether the District Court abused its discretion when it denied Levanger’s
motion to exclude the Intoxilyzer results.
¶9 Levanger argues that the District Court erred when it denied his motion to exclude
the Intoxilyzer results because the test was not administered in compliance with the
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operational checklist. Levanger maintains the District Court’s reliance on his handcuffed
arms is misplaced. Rather, he argues that because Trooper Rehbein was driving for a
significant portion of the deprivation period, Levanger could have regurgitated and
swallowed the substance or ingested chewing tobacco residue. Finally, Levanger asserts
that this case is distinguishable from State v. Flaherty, 2005 MT 122, 327 Mont. 168, 112
P.3d 1033 and City of Missoula v. Lyons, 2004 MT 255, 323 Mont. 67, 97 P.3d 1120,
arguing that here there is no additional evidence, such as a video or other officers’
observations, supporting the conclusion that the deprivation period was properly
observed.
¶10 The District Court concluded that the Intoxilyzer results were admissible. The
District Court noted that twenty minutes had passed from the removal of the chewing
tobacco and the administering of the test. Further, the District Court found credible
Trooper Rebhein’s testimony that Levanger was under observation during the drive and
unable to access any substance while his hands were handcuffed behind his back.
Regarding any suggestion of regurgitated fluid, the District Court noted that there was no
observation of any symptoms signaling that behavior either during the drive or during the
time at the Detention Center.
¶11 The District Court did not abuse its discretion when it denied Levanger’s motion.
“Every defendant is entitled to the protection of the procedural safeguards that are
contained in Montana’s administrative rules.” Flaherty, ¶ 14 (citations omitted). Older
versions of Admin. R. M. 23.4.212 required compliance with a breath analysis device’s
operational checklist. Admin. R. M. 23.4.212(7) (2002). The current rule does not
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require compliance with the checklist. Admin. R. M. 23.4.212 (2012). Rather, the
current rule, in effect when Levanger committed the offense, provides only that “breath
samples of deep lung air shall be analyzed using only the breath analysis instrumentation
or PAST devices approved under this rule.” Admin. R. M. 23.4.212(7) (2012). The
Intoxilyzer 8000 is approved by the rule.
¶12 Levanger also points to State v. Flaherty and City of Missoula v. Lyons, **arguing
that additional evidence is necessary to support the conclusion that the deprivation period
was properly observed. Reliance on Flaherty and Lyons is not helpful to Levanger’s
case. First, those cases, decided in 2005 and 2004, analyzed the older version of
Admin. R. M. 23.4.212, which required compliance with the Intoxilyzer’s checklist.
Today, there is no affirmative requirement in the regulations to comply with the
checklist.
¶13 Second, those cases relied on similar evidence as the District Court here to
establish that the defendants did not ingest any substance during the deprivation period.
In Flaherty, the Court rejected the defendant’s argument that he could have regurgitated
while handcuffed, noting that he was videotaped, as well as observed through the
rearview mirror by the arresting officer and later by a detention officer. Flaherty,
¶¶ 13,15. In Lyons, the defendant was alone for two minutes in a restroom with a
drinking fountain. We affirmed the lower court’s denial of the defendant’s motion to
suppress, noting that she had nothing on her person that could have been ingested and the
officer did not hear her use the restroom’s drinking fountain. Lyons, ¶ 17.
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¶14 Here, although there is no videotape, ample evidence supports the conclusion that,
while not required to do so under the current administrative rule, Trooper Rehbein
followed the suggested checklist printed on the Breath Analysis Report Form. Levanger
spit the chewing tobacco out and Trooper Rehbein visually inspected his mouth at least
twenty minutes before the test was administered. Trooper Rehbein observed Levanger
during the eight minute drive, adjusting his rearview mirror to watch the defendant rather
than the rear window. Additionally, Levanger was handcuffed throughout the entire
period, preventing him from placing anything in his mouth. Finally, Trooper Rehbein
observed no symptoms or signals that Levanger had vomited and this argument amounts
to a hypothetical without any factual basis.
¶15 For the foregoing reasons, we affirm the District Court.
/S/ MIKE McGRATH
We Concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
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