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State v. Carter11/25/1997
guards contained within the Administrative Rules of Montana. Woods, 900 P.2d at 322 (citing State v. West (1992), 252 Mont. 83, 89, 826 P.2d 940, 944; State v. O'Brian (1989), 236 Mont. 227, 229, 770 P.2d 507, 508). Where the State seeks to admit a breath test analysis as evidence of DUI, but fails to lay a proper foundation by establishing compliance with the administrative rules, the breath test analysis is inadmissible. Woods, 900 P.2d at 322.
Appellant argues that in both 95-203 and 96-090, his breath test analysis was inadmissible because the State failed to lay a proper foundation. Specifically, Appellant argues that the State failed to establish that the breath instrument was field certified and that the breath instrument operator was certified.
The administrative rules require that (1) breath analysis instruments must be field certified for accuracy at least once every seven days by a breath test specialist, § 23.4.213, ARM; (2) no individual may perform a breath test without a valid permit issued by the division of forensic science, § 23.4.218, ARM; and (3) all breath test operators must be recertified on an annual basis by attending a recertification course approved by the division, § 23.4.217, ARM.
As the only support for his argument that the State failed to lay a proper foundation, Appellant refers to an excerpt of a copy of a performance audit prepared by the State of Montana, Office of the Legislative Auditor of the Forensic Science Division, Department of Justice. The audit identifies deficiencies in breath instrument operator training, and a lack of consistent procedures for quality assurance of breath instrument operation. The audit also makes recommendations for correcting these deficiencies. Appellant sets forth the audit as proof that the State failed to comply with the administrative rules. Although Appellant makes no reference to the date of the audit, the audit makes statistical references to the year 1987, and mentions §§ 23.4.205 and 23.4.206, ARM, repealed in 1991, as applicable statutes. Thus, from the record, it appears that the audit was prepared sometime between 1987 and 1991.
Appellant's position has no merit. Aside from being an outdated document, the audit cannot be recognized as legal authority. Moreover, the record shows that the State in fact complied with §§ 23.4.213, 23.4.217, and 23.4.218, ARM. In both 95-203 and 96-090, Appellant's breath test was administered by a certified breath test specialist who had completed the necessary internal checks on the instrument to assure that it was working and properly calibrated. Additionally, in 95-203, the record establishes that the breath instrument was provided to the Lewistown Police Department by the forensic science division of the State of Montana and, therefore, had been approved by the division as provided in § 23.4.209, ARM. Under these circumstances, we hold that the District Court did not abuse its discretion in admitting the results of Appellant's breath tests.
Issue 5
Did the District Court err in admitting Appellant's blood test results?
During the trial of 95-203, Appellant objected on several grounds to the admission of his blood test results. On appeal, Appellant set forth the portion of the transcript containing his objections and then summarily argued that admission of the blood test results "was improper and requires reversal." Appellant set forth no citation to authority or legal analysis to support his argument.
An appellant carries the burden of establishing error by the trial court. Rule 23, M.R.App.P., requires an appellant to cite to authority for the position being advance
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