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Ex parte M.T.S.6/30/2000
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
(Re: M. T. S., Jr. v. State)
M.T.S., Jr., was adjudicated delinquent in the juvenile court on underlying charges of speeding and driving under the influence of alcohol. See § 32-5A-171(2) and § 32-5A-191(a)(2), Ala. Code 1975, respectively. The Court of Criminal Appeals affirmed, on December 18, 1998, with an unpublished memorandum. M.T.S. v. State (No. 97-1637), ___ So. 2d ___ (Ala. Crim. App. 1998) (table). This Court granted M.T.S.'s petition for certiorari review, and we now reverse and remand.
On March 13, 1998, State Trooper Charles Rogers arrested M.T.S. for speeding and driving under the influence . Trooper Rogers tested M.T.S.'s blood-alcohol content shortly thereafter with the Intoxilyzer 5000 ("I-5000"), a blood-alcohol testing device; the test showed a blood-alcohol content of .05%. The I-5000 had been inspected three days earlier. Separate calibration tests recorded by the inspector showed a reading of 0.083% and 0.075% when a 0.080% calibration solution vapor was introduced into the instrument. The inspector recorded "PASS INSPECTION" on the logbook entry.
Department of Forensic Sciences Rule 370-1-1-.02(1)(i) states:
"(i) Calibration Check. The Department of Forensic Sciences shall verify the concentration of each lot of calibration solution used for breath test instrument calibration....
"....
"Enter pass if the instrument produces a reading between 0.076% and 0.084% inclusive when a 0.080% calibration solution vapor is introduced into the instrument upon duplicate analyses. Enter fail if the instrument produces any other reading upon the introduction of a 0.080% calibration solution vapor into the instrument and remove the instrument from service until corrected and re-inspected...."
(Emphasis added.)
At trial, the State sought to lay its predicate for the admission of M.T.S.'s blood-alcohol-content-test results by introducing into evidence a copy of the inspection logbook. The trial court allowed the logbook entry and the test results to be admitted into evidence.
In affirming the delinquency adjudication, the Court of Criminal Appeals addressed this issue in its unpublished memorandum:
"When the state moved to admit the I-5000 test results, M.T.S. made the juvenile court aware of the apparent discrepancy between the inspector's clear notation in the I-5000 machine's logbook that the machine had passed inspection on March 10 and the numerical entries in the logbook for the calibration check performed on that date reflecting that the machine had produced readings of `.083' and `.075.' We find that any discrepancy in this regard was a matter for the juvenile court to resolve. The juvenile court did not abuse its discretion by accepting as accurate the inspector's notation that the I-5000 machine used on M.T.S. had passed inspection on March 10 before and after the blood-alcohol test was administered to M.T.S. Therefore, we find that the state established a sufficient predicate for admission of the results of the I-5000 test that was administered to M.T.S. See Steiner [v. State], 706 So. 2d at 1313-14 [(Ala. Crim. App. 1997)]. See also Gwarjanski v. State, 700 So. 2d 357, 358 (Ala. Cr. App. 1996) (holding that the admission of the I-5000 logbook was sufficient `substantive proof that the machine had passed inspection and was properly calibrated and operating at the time of the [defendant's] test')."
M.T.S. argues that the juvenile court erred by admitting the results of the I-5000 blood-alcohol test. He argues that Steiner v. State, 706 So. 2d 1308, 1310 (Ala. Crim. App.
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