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Wells v. State7/14/1999
, one aspect of Wells's claim is unpreserved, while the other aspect of his claim is moot.
Wells failed to preserve any objection to the admissibility of this evidence at the suppression hearing. Even though Ridling testified about (and was cross-examined concerning) his administration of the portable breath test to Wells at the scene of the traffic stop, Wells never questioned the admissibility of this evidence while his suppression motion was being litigated.
Only later did Wells raise the issue of the portable breath test. After Judge Wood denied Wells's suppression motion and the parties made ready to begin jury selection, Wells declared that he would object if the State tried to offer the portable breath test result into evidence at trial. The problem, Wells asserted, was foundational: the State had no proof that the portable breath test machine had been properly calibrated.
Judge Wood indicated that he would not rule on Wells's foundational challenge unless and until the State actually attempted to introduce the portable breath test result. But because this evidentiary issue remained unresolved, Judge Wood directed the prosecutor not to mention the portable breath test during jury selection.
This evidentiary issue was never resolved because Wells never went to trial. A few minutes after Judge Wood deferred ruling on this foundational issue, the parties announced that they had reached a settlement: Wells would plead no contest to driving while intoxicated. Thus, the trial ended before Judge Wood was called upon to resolve Wells's foundational objection to the portable breath test result.
Ultimately, Wells's case was not resolved by a plea of no contest. Rather, Wells and the government agreed to a court trial on stipulated facts. However, the stipulated facts do not mention the result of the portable breath test; indeed, the stipulated facts do not even mention that Ridling administered a portable breath test to Wells. Thus, for present purposes, the parties' second settlement is equivalent to their first settlement: neither settlement required Judge Wood to rule on Wells's foundational objection to the portable breath test result.
For these reasons, we reject Wells's challenge to the portable breath test. With regard to the admissibility of the portable breath test result at the hearing on Wells's suppression motion, Wells never objected, and so his claim is not preserved. With regard to the admissibility of the portable breath test result at trial, the State never tried to introduce this evidence against Wells, and so his claim is moot.
The judgment of the superior court is AFFIRMED.
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