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State v. Colby7/8/1999
a printed record is produced. Rule 23.4.201(31), ARM, defines breath analysis tests and provides that they are complete when "a final result is obtained and a printed record is produced by the breath test instrument." Colby argues further that because the Intoxilyzer 5000 did not produce a printed record of his breath test, the Intoxilyzer 5000 malfunctioned and his breath test results should not have been admitted.
. Second, Colby argues that there was insufficient foundation for the breath test results because the State failed to establish that the ethyl alcohol solution used to calibrate the Intoxilyzer 5000 met the requirements of Rule 23.4.213, ARM. Rule 23.4.213, ARM, requires the State to certify the accuracy of breath analysis instruments with ethyl alcohol solutions and provides that an "ethyl alcohol solution will not be used for more than 20 analyses or longer than two months after its first date of use, which ever comes first." Rule 23.4.213(c), ARM. Finally, Colby argues that there was insufficient foundation for the breath test results because the State failed to establish that Officer Mills, who administered the breath test, had been certified as required by Rule 23.4.218(1), ARM. Colby appears to argue that in order to lay a foundation for the admission of the breath test results, the State had to provide written proof of Officer Mills' certification.
. The State responds that even if the District Court erred in admitting the breath test results, the error was harmless because sufficient independent evidence supported the jury's verdict. The State argues further that Colby failed to preserve his objection to the lack of printed test results for the breath test. We agree: the record shows that Colby did not object on that ground. We conclude that Colby has failed to preserve this issue for our review. See Unified Industries, Inc. v. Easley, 1998 MT 145, 15, 289 Mont. 255, 15, 961 P.2d 100, 15 (concluding " he general rule in Montana is that this Court will not address either an issue raised for the first time on appeal or a party's change in legal theory") (citation omitted).
. The State argues that Montana's administrative rules do not require that the State produce written documentation that an ethyl alcohol solution has been used in compliance with Rule 23.4.213, ARM. The State further contends that Colby has not shown that he has been prejudiced because of the State's failure to establish the age of the ethyl alcohol solution that was used to certify the accuracy of the Intoxilyzer 5000. Finally, the State appears to argue that Officer Mills' testimony established that he was qualified to administer the breath test.
. We have previously held that to lay a foundation for the admission of breath test results, the State must establish compliance with Montana's administrative rules. In State v. Woods (1997), 285 Mont. 124, 947 P.2d 62, we concluded:
"a defendant charged with driving under the influence of alcohol is entitled to the procedural safeguards contained within the administrative rules. Where the State fails to lay a proper foundation by establishing compliance with the administrative rules, we have held that the results of the breath test analysis are inadmissible." Woods, 285 Mont. at 127, 947 P.2d at 63 (citations omitted).
. In the present case, however, we conclude that apart from the breath test results, there was very substantial evidence from which a jury could conclude that Colby was driving under the influence of alcohol in violation of § 61-8-401, MCA. The record establishes that Colby was discovered sound asleep in a northbound traffic lane of Reserve Street in Missoula. Colby's eyes were red an
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