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State v. Longhofer

Court of Appeals of Idaho

June 29, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
WILBERT LONGHOFER, Defendant-Appellant.

          2017 Opinion No. 36

          Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Juneal C. Kerrick, District Judge.

         Order denying motion in limine and judgment of conviction, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney General, Boise, for respondent.

          HUSKEY, Judge

         Wilbert 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.

         I.

          FACTUAL AND PROCEDURAL BACKGROUND

         Longhofer 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.

          The State charged Longhofer with felony operating a motor vehicle while under the influence of alcohol, Idaho Code §§ 18-8004, 18-8005.[1] 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).

         The 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.

         In 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.

         At the 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 ...


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