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Town of Columbus v. Harrington12/11/2001
mory."
It is obvious from the trial transcript that Newell was using the report to refresh his memory. We hold that the District Court did not abuse its discretion by allowing Newell to use his report to refresh his memory, as permitted by Rule 612, M.R.Evid.
Harrington also raises several objections to the use of the results of the Preliminary Alcohol Screening Test (PAST) at trial. He filed a Motion in Limine in District Court, arguing that the PAST results should be excluded because Rule 23.4.201(7)(b), ARM, limited use of PAST results to probable cause determinations only. The State argued that a 1997 amendment to § 61-8-404, MCA, superseded the administrative rule and allowed for use of PAST results at trial. The District Court denied Harrington's motion in limine and allowed the prosecution to enter an estimate of the PAST results into evidence at the trial.
Preliminary alcohol screening tests fall under the definition of associated equipment in Rule 23.4.201(7)(b), ARM. The Rule states that " nalysis from this type of device, e.g. a preliminary breath tester, are to be considered as probable cause evidence only." The Rule was enacted on December 31, 1995, and has not been amended or repealed.
Section 61-8-404(b), MCA, provides that "a report of the facts and results of one or more tests of a person's blood or breath is admissible in evidence if: (i) a breath test or preliminary alcohol screening test was performed by a person certified by the forensic sciences division of the department to administer the test." (Emphasis added.) The 1997 Legislature inserted the reference to a preliminary alcohol screening test.
An agency's rules are valid only if they are "consistent and not in conflict with the statute." Safeway, Inc. v. Montana Petroleum Release Comp. Bd. (1997), 281 Mont. 189, 194, 931 P.2d 1327, 1330, citing § 2-4-305(6)(a), MCA.
We conclude that the portion of Rule 23.4.201(7)(b), ARM, which states that analysis from preliminary breath tests may be considered as probable cause evidence only, is inconsistent and in conflict with the amended portion of § 61-8-404(b), MCA. Accordingly, we hold that the District Court was correct in not excluding the PAST results based on Administrative Rule 23.4.201(7)(b).
Harrington also objected at trial that a proper foundation had not been laid for the PAST results. After a short recess, and outside of the presence of the jury, the prosecution recalled Newell to the stand to lay a proper foundation. Newell testified from a training manual he had received in April 1998 to show that the model used for the PAST had been approved. Harrington objected to this testimony as hearsay and also objected that the document was dated after Harrington's arrest. The District Court overruled the objections and allowed the testimony. Harrington renews his objections on appeal.
The determination of whether adequate foundation exists for the admissibility of evidence is within the sound discretion of the district court and is made by the court in accordance with Rule 104(a), M.R.Evid. State v. Delaney, 1999 MT 317, 14, 297 Mont. 263, 14, 991 P.2d 461, 14. The rule states, "Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court. In making its determination it is not bound by the rules of evidence except those with respect to privileges." Rule 104(a), M.R.Evid. In Delaney, we concluded that the district court could consider hearsay evidence in its determination on whether an adequate foundation existed. We stated that "the plain language of the Rule authorizes a trial court to consider any evidence includ hearsay and other ev
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