Opinion No. 50
from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. D. Duff McKee, District Judge;
Hon. Randall F. Kline, Magistrate.
of the district court, on intermediate appeal from the
magistrate, reversing denial of motion to dismiss, affirmed.
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for appellant.
Kenneth K. Jorgensen argued.
& Beaber, P.C.; Alan J. Coffel, Nampa, for respondent.
J. Coffel argued.
State of Idaho appeals from the district court's
intermediate appellate decision reversing the
magistrate's order denying Lacy Starr Luna's motion
to dismiss. Specifically, the State contends that even though
several of Luna's breathalyzer test results were under
the legal limit, she was nonetheless subject to prosecution
under Idaho Code § 18-8004(2) because those results were
unreliable. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
responded to a report of a single vehicle accident. The
driver, Luna, admitted to consuming alcohol, but denied being
involved in an accident. After the required fifteen-minute
observation period, officers administered a breath test. The
first test strip reported three breath alcohol concentration
(BAC) results: 0.146, 0.021, and 0.013. Officers suspected
that Luna was attempting to defeat the test by blowing around
the tube. They administered a second test. The second test
strip reported two test results: 0.011 and 0.000. The
officers again noticed that Luna was attempting to manipulate
the test by plugging the tube with her tongue and blowing out
the sides of her mouth. Officers advised Luna to cooperate by
providing a complete breath sample. On the third test, the
breathalyzer reported three results: insufficient, 0.112, and
0.115. Thus, out of the eight breath samples solicited by
officers, the machine returned completed results on seven
samples. Luna was arrested and charged with driving under the
influence (DUI), Idaho Code § 18-8004.
filed a "Motion to Dismiss/Motion in Limine"
contending that, pursuant to I.C. § 18-8004(2), the
State could not prosecute her for DUI because three of the
seven machine-validated test results were under the legal
limit of 0.08 and, per the statutory language of Section
18-8004(2), the State was precluded from prosecuting where a
valid result is below 0.08. In response, the State argued that because
Luna was manipulating the test to achieve the result below
0.08, the magistrate should allow prosecution, as the low
results were unreliable. The magistrate held as follows:
Based upon the testimony that's been presented, the
Court's going to make a finding that based upon the
officer's testimony, based on his training and experience
that there are ways to manipulate the test which would not
render an insufficient but would still not be a true
representation, the Court's going to deny your motion . .
. . The Court's going to indicate that all three tests
would be brought before--can be brought before the jury. They
can figure out the validity or the trustworthiness. It
becomes a factual matter at that point.
entered a conditional guilty plea, expressly reserving the
right to appeal the magistrate's denial of the motion to
then filed a notice of appeal to the district court, arguing
that the magistrate erred by not dismissing her case. In its
appellate decision, the district court found that, because
the State did not produce a qualified expert to explain the
low test results, the State did not produce sufficient
evidence to establish that the low results were unreliable.
The district court also found that, because several of the
results were under the 0.08 threshold, the State was
prohibited from prosecuting Luna under the statute. The
district court ...