State v. Wilson , 116 Idaho 771 ( 1989 )

JOHNSON, Justice.

This is a driving under the influence (DUI) case. The primary issue presented is whether the trial court properly prohibited and suppressed evidence concerning breath tests using an Intoximeter 3000 with a deactivated Taguchi cell. We hold that the Intoximeter 3000 with a deactivated Taguchi cell was approved by the department of health and welfare (the Department) for use as a direct breath testing instrument. No further certification of the instrument was required. We also hold that the Lewiston police department was approved by the Department as a forensic alcohol examination laboratory. We reverse the order of the trial court and remand the case for further proceedings.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Wilson was arrested for DUI on March 12, 1987. He submitted to a breath test at the Lewiston police department to determine the presence of alcohol in his blood. This test was conducted with an Intoximeter 3000 (the Intoximeter). The primary component of the Intoximeter is an infrared detector that measures the amount of ethyl alcohol in the breath of the person being tested. Another component of the Intoximeter is a Taguchi cell that measures the presence of acetone in the person’s breath. In April 1985 the Taguchi cell on each Intoximeter in service in forensic alcohol laboratories in Idaho was deactivated at the direction of the forensic section of the Department’s bureau of laboratories.

The presence of acetone in a person’s breath can increase the infrared reading for alcohol measured by the Intoximeter. When the Taguchi cell is in operation as part of the Intoximeter, the instrument automatically subtracts the contribution of acetone to the infrared reading for alcohol. Acetone is not present in the breath of most people. In those cases where it is present, studies show that it increases the infrared reading for alcohol by 0.01 to 0.015. In Idaho it is unlawful for a person who has an alcohol concentration of 0.10 to drive or be in actual physical control of a motor vehicle. I.C. § 18-8004(1) (1987). The results of the test of Wilson’s breath using the Intoximeter showed that he had an alcohol concentration of 0.17.

Wilson filed a motion to suppress and a motion in limine requesting that the trial court prohibit the State and its witnesses from introducing, referring to, or producing any testimony or evidence with respect to the breath tests conducted on him using the Intoximeter with the Taguchi cell deactivated. During the hearing on this motion on October 27, 1987, the State stipulated in its argument that the Lewiston police department was not a forensic alcohol laboratory approved by the Department to conduct direct breath tests. At the conclusion of the hearing, the trial court ruled orally that the Intoximeter was not certified, but only approved, by the Department at the time Wilson was tested and granted the motion to suppress. On November 2,1987, the State filed a motion for reconsideration. The affidavit of the deputy prosecuting attorney in support of this motion included a statement that after the trial court’s ruling on October 27, 1987, the State learned from the supervising criminalist for the bureau of laboratories of the Department that the Lewiston police department was certified as a forensic alcohol laboratory for breath tests using the Intoximeter.

On February 24, 1988, the trial court issued findings of fact, conclusions of law, and order to suppress order in limine. The trial court found that in 1981 the bureau of laboratories of the Department authorized use of the Intoximeter in a configuration that included the infrared detector and the Taguchi cell. The trial court also found that if acetone were detected, the Intoximeter had to be “purged” with samples that had not been contaminated with acetone. Additionally, the trial court found that the Department had issued no written certification of the Intoximeter after the deactivation of the Taguchi cell in 1985. Also among its findings was the following:

Plaintiff’s counsel having stipulated in argument, the Court finds that Lewiston Police Department and its premises was not at the time of Defendant’s arrest an approved or certified direct breath alcohol testing laboratory.

The trial court suppressed the evidence obtained through the use of the Intoximeter, because the testing was in violation of I.C. § 18-8004 and the rules and regulations of the Department. The trial court also issued an order in limine, because the Intoximeter with the Taguchi cell deactivated “bears no primary indicia of scientific reliability.”

The State moved for reconsideration of the trial court’s orders. The trial court denied the motion. The State appealed the orders to suppress and in limine and the denial of the motion for reconsideration.

II.

THE INTOXIMETER, WITH THE TAGUCHI CELL DEACTIVATED, WAS APPROVED BY THE DEPARTMENT.

The State asserts that the Intoximeter, with the Taguchi cell deactivated, was approved by the Department at the time Wilson was tested and was not required to be “certified.” We agree.

At the time Wilson was tested, the legislature had authorized the Department to approve laboratories for the analysis of breath for the purpose of determining a person’s blood alcohol concentration. This approval was required to be “under the provisions of approval and certification standards to be set by the department.” I.C. § 18-8004(4). The rules and regulations of the Department provided that in forensic alcohol laboratories approved by the Department, only those direct breath testing instruments approved by the bureau of laboratories of the Department could be used. 16 IDAPA 02.7150.04(A) (1980).

The “certification” of the Intoximeter by the bureau of laboratories of the Department in 1981 stated that the Intoximeter was approved “in the configuration specified by the supervisor of Blood and Alcohol testing of the Forensic Section.” In 1985, the supervising criminalist of forensic section of the bureau of laboratories of the Department directed that the Taguchi cell on each Intoximeter in service in Idaho be deactivated. This constituted the neces-' sary approval of the Department for use of the Intoximeter with the Taguchi cell deactivated. No additional certification was required by I.C. § 18-8004(4) or by the rules and regulations of the Department.

The legislature has prescribed that the Department may approve laboratories for analyzing breath to determine the blood alcohol concentration. According to the rules and regulations of the Department, these laboratories may use only those direct breath testing instruments approved by the Department. The Department has approved the Intoximeter with the Taguchi cell deactivated. Any deficiencies in the accuracy of the measurement of ethyl alcohol that are occasioned by the lack of a Taguchi cell may be attacked by cross-examination or by independent evidence.

III.

THE LEWISTON POLICE DEPARTMENT WAS A LABORATORY APPROVED FOR FORENSIC ALCOHOL TESTING.

Wilson asserts that the finding of the trial court that the Lewiston police department was not an approved or certified direct breath alcohol testing laboratory is an alternate basis for affirming the trial court’s decision. We disagree.

In making its finding in February 1988 that the Lewiston police department was not an approved or certified direct breath alcohol testing laboratory, the trial court relied on the stipulation of the State in its argument at the hearing on Wilson’s motions for suppression and in limine on October 27, 1987. However, by its motion for reconsideration of November 2, 1987, and the supporting affidavit, the State advised the trial court that it had been mistaken and that the Lewiston police department was an approved laboratory. The record also contains a representation by Wilson’s attorney that later in the day on October 27, 1987, after the hearing on Wilson’s motions was held, the parties met in chambers and the State’s attorney “informed the Court that it had come across a written list indicating the Lewiston Police Department to be an approved or certified direct breath alcohol testing laboratory.” Objection to Proposed Order Submitted by Plaintiff, R. 116,117. Since the trial court did not make its findings of fact and conclusions of law for three months thereafter, the trial court should not have continued to rely on the stipulation. At that point, the only evidence before the trial court was that the Lewiston police department was a laboratory approved by the Department for forensic alcohol testing.

To the extent that the trial court relied on the lack of approval of the Lewiston police department as an approved laboratory in making its decision, it was incorrect.

IV.

CONCLUSION.

The orders of the trial court to suppress the breath tests and to prohibit any evidence concerning them is reversed. The case is remanded to the trial court for. further proceedings, if they are appropriate.

BAKES, C.J., and HUNTLEY, J„ concur. SHEPARD, J., sat, but did not participate due to his untimely death.