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Lum v. City of Brewton12/2/2003
n and semiannual electronic inspections are necessary for admission of the test results. We agree.
It is well settled that for breath-test results to be admissible pursuant to § 32-5A-194, Ala. Code 1975, the following must be established: (1) that the law-enforcement agency involved has adopted the device that was in fact used, whether it be the P.E.I., the I-5000, or the Draeger; (2) that the test was performed according to methods approved by the Department; and (3) that the person who administered the test had a valid permit issued by the Department. See Ex parte Bush, 474 So. 2d 168 (Ala. 1985).
In Ex parte Reed, 492 So. 2d 293 (Ala. 1986), the Alabama Supreme Court addressed an argument identical to Lum's, but with respect to breath-test results from the P.E.I.; the Court stated:
"Defendant initially contends that the State failed to lay the proper predicate for the admission of the P.E.I. test results, since it did not show that the test equipment had been periodically inspected by an agent of the State Board of Health. Defendant cites this Court to the case of Patton v. City of Decatur, 337 So. 2d 321, 322-23 (Ala. 1976), for the proposition that the State must show that the test was performed according to the methods approved by the State Board of Health. He then relies on the following rule of the State Board of Health:
"'420-1-1-.01 Breath
"'(3) Methods Approved by the State Board of Health
"'(a) There shall be a periodic inspection of each breath testing instrument. The inspection shall be conducted at reasonable time intervals set by the State Health Officer through the Technical Director.'
"Rules of State Board of Health, Rule 420-1-1-.01(3).
"In Ex parte Bush, 474 So. 2d 168 (Ala. 1985), this Court addressed the issue of what elements were necessary to lay the proper predicate for admissibility of the P.E.I. test results. There we said:
"'This predicate may be established by showing, first, that the law enforcement agency has adopted the particular form of testing that was in fact used. Alabama Code 1975, § 32-5A-192(a) [sic, § 32-5-192(a)]. See Estes v. State, 358 So. 2d 1050 (Ala. Crim. App.), cert. denied, 358 So. 2d 1057 (Ala. 1978). Second, there must be a showing that the test was performed according to methods approved by the State Board of Health. Alabama Code 1975, § 32-5A-194(a)(1). See Commander v. State, 374 So. 2d 910 (Ala. Crim. App. 1978). This may be proved by the introduction of the rules and regulations the officer followed while administering the test and the officer's testimony that he did, in fact, follow those rules when he administered the test in question. Parker v. State, 397 So. 2d 199 (Ala. Crim. App. 1981). Patton v. City of Decatur, 337 So. 2d 321 (Ala. 1976). Third, there must be a showing that the person administering the test has a valid permit issued by the State Board of Health for that purpose. Alabama Code 1975, § 32-5A-194(a)(1).'
"474 So.2d at 170.
"It is under the second element of the Bush predicate that defendant contends that the State needed to show a periodic inspection of the testing equipment as part of the predicate. However, we believe that imposing such a requirement for admissibility is not justified by our previous cases on the subject, the applicable statutes, or the rules of the State Board of Health.
"In Bush, we held that it was not a necessary part of the predicate for the admissibility of the P.E.I. test result
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