Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Order denying motion to dismiss DUI charge, affirmed.
Tiffany Leigh Turbyfill appeals from her conviction for felony driving under the influence of alcohol. Turbyfill argues that pursuant to Idaho Code § 18-8004(2), the State is prohibited from prosecuting her because in breath testing, one of her three breath samples yielded an alcohol concentration of less than the legal limit. The district court denied Turbyfill's motion to dismiss, and she challenges that order.
Turbyfill was stopped by Deputy Reynolds of the Bonner County Sheriff's Department for operating a vehicle with a broken taillight. Because Turbyfill smelled of alcohol and admitted that she had been drinking, Deputy Reynolds asked her to submit to breath testing, utilizing an Alco-Sensor III testing instrument. Turbyfill's first breath sample yielded an alcohol concentration reading of .054, and her second sample a reading of .108. Because of the divergence between these two samples, Reynolds had Turbyfill provide a third breath sample, which showed a .110 alcohol content. As a result of the samples that exceeded the .08 legal limit, Turbyfill was charged with felony driving under the influence of alcohol (DUI), I.C. §§ 18- 8004(1) (a), 18-8005(5).
Turbyfill filed a motion to dismiss the charge, asserting that because her first breath test showed an alcohol concentration of less than .08, the State was prohibited from prosecuting her for DUI. She urged that dismissal was required by I.C. § 18-8004(2), which generally disallows prosecution for DUI if the person had an alcohol concentration of less than 0.08 as shown by analysis of his blood, urine, or breath. At the hearing on Turbyfill's motion, the State called as witnesses Deputy Reynolds and Jeremy Johnston, a forensic scientist. Deputy Reynolds testified that he administered the breath testing properly and that he had no reason to believe that the testing instrument was malfunctioning in any respect. Mr. Johnston's testimony centered upon the extreme variance between the alcohol concentration measured in Turbyfill's first breath sample and her two following breath samples. His testimony included the following:
Q. Okay. And what would be the potential explanations for why the first and second sample were not within a .02 of one another?*fn1
A. There's several reasons why you could have a sampling event where the first and second sample weren't within the .02. But the .02 correlation is put into place to eliminate external sources of alcohol contamination either from stomach contents or from actual drinking alcohol, radio frequency interference, inconsistent sample delivery or inconsistent sample selection by the officer, and actual instrument calibration or malfunction.
Q. Okay. And what specifically are you referring to when you make reference to sample selection by the officer on this particular incident?
A. In this particular instance the Alco-Sensor III, which is in essence officer operated, the officers you know instruct the individual or instructed to have the individual blow until they get down to where they're providing a deep lung air sample when they're about to run out of breath. At that point the officer is instructed to push the read button which draws in a single point in time sample from the individual's expired breath and analyzes that sample. If the officer is I guess a little quick on the trigger and presses the button too early and the person is providing either just mouth air or shallow lung air, you will get an under-representation of what the person's true alcohol content--breath alcohol content would have been.
Q. And when the sample turns out to be a .110 and what is the significance of the three separate samples in this testing process?
A. Well, after the first two samples were obtained, you had a .054 I believe is the number and a .108 so in that situation since they weren't within the .02, you have one of two possibilities. You either have the .108 was overreported by an external contamination source of error or the .054 was underreported by potential inconsistent sample delivery or sample selection at that point. The third ...