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State v. West2/25/1992
prior to administering the test on the defendant.
Officer Moe testified that he was certified to operate the intoxilyzer and that he calibrated and tested the instrument to insure that it would accurately measure the defendant's breath. He also testified that in order for the intoxilyzer to take an accurate reading, the instrument must be calibrated at .100. He then testified, and the record reflects, that the instrument was properly calibrated at .100 immediately prior to administering the test to defendant.
In addition, the record contains a letter dated May 11, 1990, from the Forensic Science Division of the Justice Department. It stated that the division had inspected and verified the intoxilyzer in the Rosebud County Sheriff's Office and that it met all of the Division's requirements at the time of installation. The letter also stated that Officer Moe was a certified operator because he had completed the Breath Test for Intoxilyser School which was required before he completed his police training in 1989.
We have stated "that the District Court has latitude of discretion in passing on the admissibility of evidence." State v. Hall (1989), 244 Mont. 161, 169, 797 P.2d 183, 188. We will only overturn the district court's determination on the admissibility of evidence when there has been an abuse of discretion. Hall, 797 P.2d at 188. We hold there was sufficient foundation and that the District Court did not abuse its discretion in admitting the results of the alcohol breath test.
IV
Whether the State's references to presumptions based on the results of an alcohol breath test prejudiced the defendant.
Defendant alleges that the State made continual references and placed evidence before the jury relating to a presumption of intoxication. In its opening statement, the prosecution stated:
"And then a central piece of evidence would be the results of a breathilizer test. And we expect that this evidence to be introduced, will show that Mr. West, blowing into the machine, registered a point two-seven alcohol content. And this will be an important number to keep in mind when you receive the Court's instructions as to what level is the presumption of intoxication. [Emphasis added.]" Officer Moe testified in direct examination to the following:
"Q. How did he exhibit that lack of understanding?
"A. He was just — when I asked him to come along, or asked him back to my car, he didn't know what I was asking, and he just acted very intoxicated.
"MR. CARSTENSEN: I object, Your Honor, again, and ask that the answer be stricken.
"MR. FORSYTHE: As to intoxicated?
"THE COURT: Sustained as to the origin which indicated he was very intoxicated.
"Q. So that we don't keep going through this, this is an ultimate conclusion for the jury and we'll ask you not to state the standard of intoxication. . . .
"Q. And your testimony was that you found the maximum of six points, three for each eye; is that correct?
"A. Yes. The normal is if you receive four points, they're usually at point one. And then the forty-five degree angle is, if it's there they're usually over about point one.
"MR. CARSTENSEN: Your Honor, I object and move to strike the answer; it's unresponsive and not proper foundation.
"COURT: Do you have an offer of proof?
"MR. FORSYTHE: No, I'll withdraw that particular question and answer as to the alcohol levels.
"THE COURT: The jury is directed to disregard the testimony as with respect to any particular percentage of alcohol l
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