The criminal defense attorney can file a motion to suppress or exclude the breath test results when the State does not lay a prior foundation showing that the Intoxilyzer was in compliance with the Administrative Rules of Montana. Compliance issues include:
- a showing that the Intoxilyzer had failed to be recertified within 365 days as required by the administrative rules;
- the senior operators failed to successfully pass recertification exams;
- the Division failed to issue each recertification permits;
- the senior operators failed to timely re-certified the Intoxilyzer 8000 that was used to collect the breath sample.
The breath test might also be excluded if the officer fails to follow the requirements of the “deprivation period” (formerly contained in the Administrative Rules of Montana). The deprivation period requires an officer to observe the person for fifteen minutes before administering a breath test. State v. Flaherty, 2005 MT 122, ¶ 9, 327 Mont. 168, 112 P.3d 1033, superseded by rule as stated in State v. Levanger, 2015 MT 83, ¶¶ 9–14, 378 Mont. 397, 344 P.3d 984.
If you are charged with DUI after submitting to a breath test, an experienced criminal defense attorney can help you determine whether a sufficient foundation exists to admit the results of a breath test at trial. Greg Beebe is an experienced DUI defense attorney in Helena, Montana. He represents clients throughout Lewis and Clark County, and the surrounding areas including Boulder in Jefferson County.
Call today for a free consultation to discuss your case. Call (406) 442-3300 today.
The Admissibility of the Breath Test in Montana
Under Montana law, when a person is charged with an alcohol related driving offense the State “must lay a proper foundation for the admission of the results of alcohol concentration breath analysis.” State v. White, 2009 MT 26, ¶ 10, 349 Mont. 109, 201 P.3d 808 (overruled in part on other grounds by State v. Jenkins, 2011 MT 287, 362 Mont. 481, 265 P.3d 643).
Section 61–8–404(1)(b), MCA, provides that a report of the results of a person’s breath test is admissible in evidence if the “test was performed by a person certified by the forensic sciences division of the department to administer the test.”
Section 61–8–405(5), MCA, further provides that the Montana Department of Justice in cooperation with any appropriate agency “ shall adopt uniform rules for the giving of tests and may require certification of training to administer the tests as considered necessary.”
As required by § 61–8–405(5), MCA, the Forensic Science Division (Division) of the Department of Justice has promulgated administrative rules that closely regulate the breath test analysis instruments that are used in determining blood alcohol concentration as well as the qualifications of the personnel who operate those instruments. See Admin. R.M. 23.4.201 through 225.
DUI Breath Test Operators in Montana
The administrative rules divide the personnel operating the instruments into two basic categories:
- “operators” who are qualified only to administer breath tests to persons suspected of DUI; and
- “senior operators” who are qualified to recertify the breath-test instruments, teach recertification courses, and issue recertification permits to operators.
Admin. R.M. 23.4.201(13), 216 (2007).
Recertification of a Breath Test Operators and Senior Operators
The breath-test instruments and the operators must be regularly recertified by properly certified senior operators. Admin. R.M. 23.4.213(1), 217(2) (2007). The administrative rules require that senior operators pass annual recertification exams to maintain their certifications. Admin. R.M. 23.4.217 (2007). Specifically, senior operators must submit to a recertification examination every 365 days. Admin. R.M. 23.4.217(8) (2007).
A senior operator’s permit “expires the last day of the month, in the following year in which [he or she] was certified.” Admin. R.M. 23.4.217(4) (2007). However, a senior operator is given a 90 day grace period to renew after the expiration of his or her permit pursuant to Admin. R.M. 23.4.217(11) (2007), which states, in part, that a senior operator “must successfully pass a recertification course within 90 days after his/her expiration date.” If a senior operator “fails to recertify within the specified time frame, he/she must either attend an initial certification course or file a request, in writing, for an exemption.” Admin. R.M. 23.4.217(12) (2007).
In many of these cases, the criminal defense attorney will argue that the breath test results are inadmissible for lack of foundation when there is a lack of compliance with the breath test operator’s certification or recertification permit under the administrative rules.
Section 26–1–602, MCA, provides a statutory presumption that an official duty has been regularly performed, and such presumption is satisfactory proof of the fact, if uncontradicted. See Miners & Merchants Bank v. Dowdall, 158 Mont. 142, 157, 489 P.2d 1274, 1282 (1971). Nevertheless, in some of these cases, the criminal defense attorney can show a lack of compliance with the administrative rules for certification or recertification of the breath test operator, senior operator, or the senior operator’s certification of the Intoxilyzer machine and the field location.
Certification and Recertification of the Breath Test Intoxilyzer
In State v. Frickey, 2006 MT 122, 332 Mont. 255, 136 P.3d 558, the court concluded that the Intoxilyzer used to collect the breath sample had not been properly recertified in accordance with the administrative rules. The facts of that case showed that the Intoxilyzer used to collect the breath sample had not been recertified for over 13 months at the time of the subject breath test.
However, the State in argued that under the administrative rules the Intoxilyzer need only be recertified once in a calendar year. The court rejected the State’s argument, concluding that as a matter of law the administrative rules required the Intoxilyzer to be recertified every 365 days. The court held that the breath test results were inadmissible because more than 13 months had elapsed since the last recertification.
