Opinion No. 36
from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. Juneal C. Kerrick, District
denying motion in limine and judgment of conviction,
D. Fredericksen, State Appellate Public Defender; Ben P.
McGreevy, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Ted S. Tollefson,
Deputy Attorney General, Boise, for respondent.
Longhofer appeals from the judgment of conviction entered
upon his conditional guilty plea to operating a motor vehicle
while under the influence of alcohol. Longhofer argues the
district court abused its discretion when it denied
Longhofer's motion in limine to exclude the alcohol
breathalyzer test results. Because the State's expert
laid the necessary foundation to show the reliability of the
breath-test results, we affirm the district court's
denial of the motion in limine and judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
was stopped by a police officer for speeding. The officer
conducted field sobriety tests and used a LifeLoc FC20
breathalyzer to conduct three breath tests. The breath tests
yielded results of .114, INF (Insufficient), and .116. The
officer arrested Longhofer.
State charged Longhofer with felony operating a motor vehicle
while under the influence of alcohol, Idaho Code §§
18-8004, 18-8005. Longhofer pleaded
not guilty. Longhofer filed a motion in limine to exclude the
blood alcohol concentration (BAC) results, memorandum in
support, and request for hearing, as well as two amended
motions. The motion (and the two subsequent motions)
requested an order excluding the results of the BAC tests,
since the performance check on the breathalyzer did not meet
the standards required by the Idaho Breath Alcohol Standard
Operation Procedure manual (SOP).
requires breathalyzers to undergo a performance verification
within twenty-four hours before or after the breathalyzers
are used for a breath test. The performance verification
requires an operator to take two samples which cannot deviate
more than 10% from the target value. In this case, the target
value was .08, while the samples measured .073 and .070. A
10% deviation from .08 meant the sample must fall between
.072 and .088. The .070 sample, therefore, fell outside the
acceptable range and did not conform to the SOP. Longhofer
argued that because the SOP was not properly followed, the
breath-test results should be excluded from evidence.
response, the State argued that Longhofer's motion in
limine should be denied because the State intended to call an
expert witness at the hearing. The State explained its expert
witness would testify that the breathalyzer had been trending
low and the results would have been to the benefit of
Longhofer. Longhofer replied that the State cannot prove the
process produced an accurate result.
hearing, counsel stipulated: (1) the "blows" in the
field were conducted properly; and (2) the twenty-four-hour
performance verification on the breathalyzer was not done
pursuant to the SOP. The State's expert was an employee
of the Idaho State Police and helped to calibrate and certify
all of Idaho's new LifeLoc FC20 breath-testing
instruments. The expert created the SOP for breath-testing.
The expert explained the performance verification procedure,
which is required twenty-four hours before or after a breath
test and is meant to show that the calibration is still valid
and the instrument is providing reliable results. This
calibration is required for the LifeLoc FC20 breathalyzer
because the breathalyzer uses fuel cell technology, which
dries out over time. The expert explained that the fuel cell
becomes less responsive to alcohol as it dries out, which
produces results that are steadily lower than the actual BAC,
but are internally consistent with each other. When the fuel
cell begins to trend low in this way, the software on the
device requires recalibration in order to accurately report
the blood alcohol level. After reviewing the performance
verification log, the State's expert concluded the
breath-test readings had been ...