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Ex parte M.T.S.6/30/2000
1997), and Gwarjanski v. State, 700 So. 2d 357 (Ala. Crim. App. 1996), hold that, in order to lay a proper predicate for the admission of results of an I-5000 test, the State must show that the test results were in strict compliance with the rules of the Department of Forensic Sciences. In addition, he argues, the State must prove that the testing device was in proper working order when the test was administered, either by having the officer who inspected the device testify that it was working properly when it was used to test the defendant's blood-alcohol content, or by introducing a certified copy of the inspection logbook showing that the device passed inspection before and after the test was administered.
In Senn v. State, 710 So. 2d 503 (Ala. Crim. App. 1997), the Court of Criminal Appeals stated that the State may seek admission of I-5000 test results through the statutory predicate required by § 32-5A-194(a)(1), Ala. Code 1975, or through a traditional evidentiary predicate, which requires the prosecution to show that a qualified officer administered the test and that the I-5000 in question passed inspection. The court concluded that the State had failed to lay a the proper predicate through either method. Specifically, the court found that the State had failed to lay the proper predicate through the traditional evidentiary foundation because it "did not sufficiently establish that the I-5000 used to test the appellant had passed inspection before and after the test." Id. at 504. While the State established that the administrator was qualified to administer the test and that he administered the test in the usual manner, the court found that the State presented no evidence to show that the I-5000 used to test Senn was checked for accuracy after the test.
In this case, the State did not prove that the I-5000 was accurate before the test. Although the inspector noted in the logbook that the I-5000 passed inspection before M.T.S's test, the logbook also reflects that on one of the two required analyses the I-5000 registered a calibration-test result outside the range deemed acceptable by the Department of Forensic Sciences. The I-5000 test results were not in strict compliance with Rule 370-1-1-.02(1)(i) of the Department of Forensic Sciences Rules and Regulations. The rule unambiguously requires that the reading be between 0.076% and 0.084% inclusive. A reading of 0.075% on one of the duplicate analyses is inconsistent with the requirement of the rule. Rule 370-1-1-.02(1) requires that an instrument be removed from service if any failure is not corrected on site by the inspector. The State presented no evidence indicating that the inspector corrected the defect after the March 10 inspection.
The State did not establish a proper predicate for admitting the results of M.T.S.'s blood-alcohol test. The Court of Criminal Appeals has held that admitting such test results without first laying a proper predicate is reversible error. Davis v. State, 712 So. 2d 1115 (Ala. Crim. App. 1997), and McDaniel v. State, 706 So. 2d 1305 (Ala. Crim. App. 1997). The juvenile court did not have the discretion to cure the absence of a proper predicate, given the unambiguous requirement of Rule 370-1-1-.02(1)(i).
The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Hooper, C.J., and Maddox, Houston , Cook, See, Johnstone, and England, JJ., concur.
Brown, J., recuses herself.*
*Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.
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