 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Bird11/15/2002
r alcohol, there is no evidence vouching for the accuracy or reliability of the resulting numeric measure of Bird's blood alcohol content. Any assertion that the PBT result reflected Bird's true blood alcohol content directly contradicts the language of the instruction.
If the purposes of these provisions are as earlier indicated, they have been clearly compromised by Zacharias's failure to follow the manufacturer's instructions in the operation of the Alco-Sensor III. Under section 321J.6(d), implied consent procedures are authorized if there is a PBT result equal to or exceeding .10. A PBT result whose accuracy reflects no more than the presence of alcohol is legally insufficient to support invocation of implied consent procedures. Id. Contrary to the district court's conclusion, we find the record insufficient to establish Zacharias's substantial compliance with either section 321J.6 or rule 661-7.5.
We also note that the subsequent intoxilyzer test confirming Bird's blood alcohol content exceeded .10 is of no consequence to our determination. In State v. Christianson, 627 N.W.2d 910 (Iowa 2001), our supreme court held that implied consent cannot be invoked unless the peace officer first has reasonable grounds to believe a driver is operating while intoxicated. Christianson, 627 N.W.2d at 913. Although Christianson only dealt with the reasonable grounds requirement of 321J.6, we believe the same reasoning requires the requisite PBT result be obtained before invocation of implied consent procedures.
We rely on the same substantial compliance analysis to determine the consequences of the Iowa City Police Department's failure to record the value and standard used to calibrate the Alco-Senor III used in this case. As noted earlier, we presume the purpose of the rule requiring these records is to advance the public interest in the accuracy of such devices. In the absence of the required records, we believe this purpose is compromised by the use of a device the accuracy of which is beyond ascertainment in accordance with the standards set by the department of public safety. For the same reasons stated earlier, the fact that this information may lend itself to subsequent determination is of no consequence to our substantial compliance analysis. Christiansen, 627 N.W.2d at 910.
In reaching our decision we have not ignored the State's argument that it has met its burden to establish the foundational facts necessary for admission of the intoxilyzer test results. See Iowa Code § 321J.15. While establishment of the requisite foundation for admission of intoxilyzer test results and substantial compliance with section 321J.6 do not present mutually exclusive considerations, they are nevertheless distinct issues. To hold otherwise would require the admission of evidence obtained through illegal government activity in direct contradiction of earlier cited authority requiring exclusion of such evidence.
In summary, we hold the arresting officer's failure to follow the manufacturer's operating instructions for the Alco-Sensor III PBT device, as well as the Iowa City Police Department's failure to record the value and method used to calibrate that device, necessitate the exclusion of the intoxilyzer test result in this case. We have not considered Bird's constitutional challenge to the use of PBT based on their inherent unreliability because he failed to raise that issue in the trial court. State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994).
We reverse and remand for further proceedings in conformity with this opinion.
REVERSED AND REMANDED.
|