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Gengler v. State1/15/1999
process, the tester discovers that the machine is out of calibration, then the machine must be recalibrated; under 13 AAC 63.100(b), "the recalibration must be performed by the scientific director, a supervisor, or other qualified person designated by the scientific director.")
Gengler does not attack the holding in Herter, and he concedes that the calibration of the Intoximeter was verified within 60 days prior to his test. Gengler argues, however, that Herter only establishes a presumption that his breath test was accurate. Gengler contends that he was entitled to attack this presumption by showing that the police missed the deadline for the next calibration verification (i.e., by introducing evidence that the Intoximeter's calibration was not verified again until May).
We agree with Gengler that he should be able to attack the accuracy of the breath test result. However, the fact that the authorities missed the deadline for the next scheduled calibration verification was, by itself, irrelevant to the accuracy of Gengler's breath test.
Evidence is relevant only if it tends to prove or disprove a fact that is of consequence to the proper decision of the proceeding. The accuracy of Gengler's breath test was obviously of consequence to the proper determination of the charge against him. But the fact that the Intoximeter's calibration was not verified again until two months after Gengler's breath test does not, by itself, tend either to support or undermine the accuracy of Gengler's breath test. Failure to test a machine indicates nothing about how well (or how poorly) the machine has been functioning.
We upheld the breath test result in Herter because the testimony of law enforcement witnesses "provide ample basis to support the Conclusion that the absence of strict compliance [with the 60-day verification deadline] had no appreciable effect on the accuracy of Herter's breath test result." We noted that Herter "ha neither alleged nor established any potential adverse effect that might have resulted" from the State's failure to meet the next verification deadline. In other words, Herter failed to show that the missed deadline had any relevance to assessing the accuracy of the breath test result.
We acknowledge that Gengler would have a strong claim of relevance if, when his Intoximeter was finally tested, it had been found to be out of calibration (that is, if it was yielding inaccurate results at that time). But Gengler never asserted that the Intoximeter was out of calibration when it was tested in May. Unless accompanied by such an offer of proof, the fact that the authorities failed to perform the next scheduled verification of the Intoximeter's calibration had no bearing on the accuracy of Gengler's breath test.
The judgment of the district court is AFFIRMED.
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