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State v. Colby7/8/1999
APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.
Submitted on Briefs: March 11, 1999
. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
. Defendant Reginald S. Colby (Colby) appeals from the judgment and order of the Fourth Judicial District Court, Missoula County.
. We affirm.
. We restate the issue as follows:
. Whether the District Court abused its discretion in admitting the results of a breath test.
Standard of Review
. A district court has broad discretion to determine whether evidence is relevant and admissible. State v. Woods (1995), 272 Mont. 220, 222, 900 P.2d 320, 321. Absent an abuse of discretion, we will not overturn a district court's admission of evidence. Woods, 272 Mont. at 222, 900 P.2d at 321.
Factual and Procedural Background
. Very early one morning in November, 1996 Montana Highway Patrol Officer Monzon found Colby asleep in his car in a northbound lane of traffic on Reserve Street in Missoula, Montana. Officer Monzon requested backup. When Officer Mills arrived, he observed that Colby had bloodshot eyes, that Colby's speech was sometimes slurred, and that Colby smelled of alcohol. Colby admitted that he had been drinking alcohol. Officer Mills had Colby attempt several field sobriety tests. Based on Colby's performance of those tests, Officer Mills concluded that Colby was likely under the influence of alcohol. Officer Mills also administered a preliminary breath test (PBT) to Colby; Colby scored a 0.127 blood alcohol content (BAC). Officer Mills arrested Colby and brought him to the Missoula Police Department, where Colby agreed to take a breath test. A device known as an Intoxilyzer 5000 measured a BAC in Colby of 0.116. A video camera recorded Officer Mills as he read aloud the results of the breath test. However, the printer attached to the Intoxilyzer 5000 malfunctioned and did not print out the breath test results.
. In May, 1997 Colby was found guilty of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, 2nd Offense, a misdemeanor, in Justice Court. Colby appealed the judgment and verdict of the Justice Court to District Court, where he had a jury trial in April, 1998. At trial Colby objected that there was insufficient foundation for the admission of the breath test results. The District Court admitted the breath test results. At the close of the trial, the jury found Colby guilty as charged. The District Court sentenced Colby to six months jail with all but seven days suspended. Colby appeals from that judgment and verdict.
. Whether the District Court abused its discretion in admitting the results of a breath test.
. Colby argues that there was insufficient foundation for the Intoxilyzer 5000 breath test results (hereafter, the breath test results). Relying on State v. Woods (1995), 272 Mont. 220, 900 P.2d 320, Colby argues that to admit BAC evidence, the State must lay a foundation showing compliance with Montana's administrative rules. Colby argues that in three respects, Montana's administrative rules were not followed. First, Colby argues that under Rule 23.4.201(31), ARM, a breath test is not complete until
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