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Gengler v. State1/15/1999
[No. 1617 - January 15, 1999]
Appeal from the District Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge.
James J. Gengler was charged with driving while intoxicated. At Gengler's trial, the State relied on the result of an Intoximeter test (i.e., a breath test) that was administered to Gengler following his arrest.
Under regulations promulgated by the Department of Public Safety, the calibration of every breath test machine used in Alaska must be verified at least every 60 days. The calibration of the Intoximeter machine used to test Gengler's breath had been verified at regular intervals prior to Gengler's test; but, following Gengler's test, the police failed to verify the calibration of this Intoximeter before the next 60-day deadline expired.
At trial, Gengler sought to introduce evidence of this fact (the police department's failure to meet the next verification deadline). Gengler argued that the failure to verify the machine's calibration before the end of the 60 days tended to cast doubt on the accuracy of his Intoximeter test result. The trial Judge refused to allow Gengler to introduce this evidence. Gengler challenges this ruling on appeal.
As we explain in more detail below, a police department's failure to perform the next scheduled calibration verification following a defendant's breath test can conceivably be relevant to attack the accuracy of the defendant's test result - but only if the defendant offers evidence that the machine was in fact out of calibration when it was next tested. Gengler offered no evidence that the machine's calibration was faulty when it was later tested, so the failure to verify the machine's calibration within the 60-day period was irrelevant. The trial Judge properly refused to let Gengler introduce this evidence, and we therefore affirm Gengler's conviction.
Gengler was arrested for driving while intoxicated on the evening of March 8, 1996. He submitted to a breath test shortly after midnight on March 9th. (The result was .143 percent blood-alcohol.)
The machine used to test Gengler's breath, an Intoximeter 3000, had been tested and its calibration certified on January 11th - 58 days before Gengler's test. Under 13 AAC 63.100(c), this certification was good for up to 60 days. Gengler's breath test was performed during this 60-day period of certification.
But when Gengler asked about subsequent certifications of the Intoximeter, the prosecutor admitted that he was not aware of another documented certification of the machine until May 13, 1996 - that is, 123 days after the January 11th certification. Gengler asked the trial Judge to advise the jury of this fact, or allow him to introduce evidence of this fact, for the purpose of attacking the accuracy of Gengler's breath test result.
In Herter v. State , this court held that a breath test result is normally admissible (and thus presumptively accurate) if the machine used to administer the breath test has been "calibrated" within 60 days prior to the challenged test, even if the police failed to "calibrate" the machine by the next 60-day deadline.
(We have placed the word "calibrate" in quotation marks because Herter misuses the term. "Calibration" refers to the process of setting or adjusting a machine so that it yields scientifically accurate results; this process can be analogized to setting a clock to a known accurate time or setting an empty scale to zero. Under 13 AAC 63.100, breath test machines are not calibrated every 60 days. Rather, their calibration is verified (tested against a known accurate standard) every 60 days. If, during this verification
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