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Lum v. City of Brewton12/2/2003
ero, they actually check the device to make sure it is in proper working order. If either of the calibration checks or internal diagnostic checks indicates a problem with the device, the testing sequence is aborted and no test results will be produced. Under these circumstances, just as with the previous P.E.I., it would be superfluous to require that both the annual certifications and the semiannual inspections of the Draeger device be proven when it is clear that the accuracy of the test results from the Draeger depends on the calibration checks and internal diagnostic checks performed by the device itself at the time each breath test is administered. Therefore, we hold that proof of the annual certifications and semiannual inspections contained in Reg. 370-1-1-.02(2) are not a necessary part of the statutory predicate for admission of breath-test results from the Draeger.
In this case, the record reflects that the City established the statutory predicate for admission of the test results. As noted above, Officer Fillmore testified that the City of Brewton had approved the Draeger as a breath-testing device and that he had a permit from the Department to operate the Draeger, thus satisfying the first and third elements of the statutory predicate. In addition, Officer Fillmore testified that he followed the normal procedure for administering the test -- inputting the appropriate information and observing the appropriate 20-minute deprivation period -- and that the certificate of analysis produced by the Draeger showed that the device was operating properly at the time of the test and that two breath tests had been administered, but only the lowest result was reported, thus satisfying the second element of the statutory predicate. We also note that the certificate of analysis that the City introduced into evidence also establishes the second and third elements of the statutory predicate by itself. The certificate specifically states that the person operating the machine had a valid permit from the Department. In addition, as noted above, the failure to follow the procedure contained in the device's software, the procedure specifically approved by the Department in its rules, results in the device aborting the test sequence and not producing any results. Thus, the mere fact that the device produced the certificate with a test result shows that the methods approved by the Department in Reg. 370-1-1-.01 were followed in administering the test.
Because the City properly established the statutory predicate for admission of Lum's test results from the Draeger, the trial court properly admitted those results into evidence.
II.
Lum also contends that the trial court erred in denying his motions for a judgment of acquittal, made at the close of the State's case and at the close of all the evidence, because, he says, the evidence was insufficient to sustain his conviction for DUI. Specifically, Lum argues that without the results of the Draeger breath test, there was no evidence indicating that he was driving under the influence of alcohol. However, we have already determined in Part I of this opinion that the results from the Draeger breath test were properly admitted. Suffice it to say, the test results, along with Officer's Fillmore's observations of Lum, were more than sufficient to sustain Lum's conviction for DUI. Therefore, the trial court properly denied Lum's motions for a judgment of acquittal.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
McMillan, P.J., and Cobb, Baschab, and Wise, JJ., concur.
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