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State v. Thomas M. Donndelinger

May 15, 2013

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
THOMAS M. DONNDELINGER, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge; Hon. Michael J. Oths, Magistrate.

The opinion of the court was delivered by: Walters, Judge Pro Tem

2013 Unpublished Opinion No. 495

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Thomas M. Donndelinger was found guilty by a jury of driving under the influence. The magistrate entered an order withholding judgment of conviction, which order was upheld by the district court on an intermediate appeal. Donndelinger now appeals from the district court's intermediate appellate decision affirming the magistrate's order. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

On December 27, 2009, at approximately 8:00 p.m., Donndelinger was exceeding the speed limit in a construction zone on the interstate when Corporal Sean Klitch of the Idaho State Police (ISP) effectuated a traffic stop. Upon contacting Donndelinger, Corporal Klitch suspected Donndelinger had been drinking alcohol. After Donndelinger indicated he had consumed two martinis with dinner, Corporal Klitch administered field sobriety tests and then called for Trooper Janat Murakami to administer breath alcohol concentration testing. Donndelinger was placed in the back of Trooper Murakami's car during the requisite fifteen-minute observation period prior to administration of the test with the Lifeloc FC20. Donndelinger's breath samples both registered .152, well above the legal limit of .08.

Donndelinger was charged with driving under the influence of alcohol, Idaho Code § 18-8004. Donndelinger filed a motion in limine to exclude the breath test results, contesting the accuracy and reliability of the Lifeloc testing machine. The magistrate denied the motion. Donndelinger also filed a discovery request related to the anticipated testimony of the expert witness disclosed by the State, Jeremy Johnston, a forensic scientist at the ISP forensic lab. Donndelinger received no information in response to his request and the case proceeded to trial. At trial, Donndelinger presented the testimony of two experts,*fn1 who questioned the reliability and accuracy of the Lifeloc and described specific tests they performed in testing the machine. The State called Johnston as a rebuttal witness to challenge the defense experts' opinions. The jury found Donndelinger guilty as charged.

Donndelinger filed a motion for judgment of acquittal or, in the alternative, a new trial, asserting his breath test results were improperly admitted as evidence because the requisite observation period prior to administration of the test was not properly executed, the State failed to comply with his discovery request concerning disclosure of the substance of Johnston's anticipated testimony, and a portion of the video of the traffic stop was improperly admitted. Following a hearing, the magistrate issued a written order denying the motion. Donndelinger appealed to the district court, which affirmed the magistrate's decision. He now appeals to this Court.

II. ANALYSIS

Donndelinger contends the magistrate erred in finding the officer complied with the requisite observation period prior to administering the breath test and, as a result, finding there was sufficient foundation to admit the results of the breath test. He also contends the prosecutor engaged in misconduct by failing to disclose the substance of an expert's testimony during discovery and for misrepresenting the content of the video of Donndelinger's stop that was admitted into evidence. He further challenges the denial of his motion for a judgment of acquittal or a new trial given the erroneous admission of evidence of his breath test, the video, and the prosecutor's misconduct. Finally, he contends an accumulation of these errors deprived him of a fair trial.

On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We examine the magistrate record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at 711, 184 P.3d at 217. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at 711, 184 P.3d at 217.

A. Observation Period

Donndelinger contends the district court erred in admitting evidence of his breath test results because the trooper administering the test did not properly comply with the requirements of a fifteen-minute observation period pursuant to Idaho Code and ISP rules. Specifically, he contends he was not closely enough observed during the observation period, pointing out numerous circumstances he claims inhibited the trooper's ability to properly observe him: he was in the back seat while the trooper was in the front seat, there was a Plexiglass and metal barrier between them (although the area between the driver's and passenger's seat was open), the back windows were open and the passing traffic was loud, an audio advisory CD was playing, the trooper's police radio was turned on, and the trooper engaged in multitasking by filling out paperwork and preparing the testing machine. He asserts that when the trooper was not visually observing ...


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