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Lum v. City of Brewton12/2/2003
formed at the beginning and end of each test sequence. 'Diagnostic Checks Before and After Test - OK' will be noted on the Certificate of Breath Alcohol Analysis to indicate that no malfunction was detected."
At trial, Officer Fillmore testified that the Draeger was the breath-testing device approved by the City of Brewton, and that he had been trained to operate the Draeger and had been issued a permit by the Department to operate the Draeger. Officer Fillmore testified that he followed the normal procedure for administering a Draeger breath test when he administered the test to Lum. Specifically, Officer Fillmore said that he subjected Lum to a 20-minute deprivation period before Lum gave a breath sample, during which Lum was not allowed to eat or drink anything; that he typed in all the relevant information for the testing sequence; that the device performed its internal calibration and diagnostic checks and indicated on the "Certificate of Breath Alcohol Analysis" that the checks both before and after the test were satisfactory; and that the test indicated that Lum's blood-alcohol level was 0.08 percent. Officer Fillmore also testified that the Draeger device reports only the lowest result from two breath samples. During Officer Fillmore's testimony, the City introduced into evidence the "Certificate of Breath Alcohol Analysis." (C. 74.) The document lists all the information regarding the subject of the test and regarding the operator of the machine that is required to be typed into the device pursuant to Reg. 370-1-1-.01(4)(b). In addition, although the operator only inputs his or her permit number, the document, apparently based on the software programming in the device, also lists the expiration date of the permit number. The document also indicates that the internal calibration and diagnostic checks performed before and after the test were "OK." (C. 74.) Finally, the document indicates that two breath tests were administered, but that only the lowest result is reported, and it indicates that result.
Both parties, as well as the Department, agree that caselaw regarding the admissibility of breath-test results from the Intoxilyzer 5000 ("I-5000"), the predecessor device to the Draeger, and the photoelectric intoximeter ("P.E.I."), the predecessor to the I-5000, should be applied to the admissibility of breath tests from the Draeger to the extent that there must be evidence of the accuracy and reliability of the device, i.e., that the device was working properly when the test was administered, in order for the test results to be admissible. As to the nature of the evidence that must be presented to show that the device was working properly, however, Lum takes a different view than both the City and the Department. Lum argues that, like the requirement for admissibility of test results from the I-5000, i.e., that evidence be presented indicating that the machine had been checked on a monthly basis, there must be evidence that the Draeger was certified annually and inspected semiannually before the test results are admissible. The City and the Department, on the other hand, argue that the admissibility requirements of the results of the Draeger are similar to the requirements for admissibility of the P.E.I., which did not require proof of periodic inspections because calibration checks were performed by the operator at the time of each breath test, in that the internal calibration checks that occur both immediately before and immediately after each breath test as well as the internal diagnostic checks that occur 128 times per second are sufficient evidence that the Draeger was in proper working condition at the time of the test and that, therefore, no evidence of annual certificatio
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