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Lum v. City of Brewton12/2/2003
s that the State show that the person who had previously calibrated the test equipment was certified by the State Board of Health. After reviewing the applicable statutes, § 32-5A-194 and § 32-5-192(a), Code 1975, and the rules promulgated by the State Board of Health, we held that such a showing would be 'superfluous, since the accuracy of the test results depends upon the final calibration by the administrator of the test, and not the previous calibrator.' Bush, supra.[ ] Bush emphasized that the accuracy of the test results depends upon the final calibration by the test operator at the time the test is given. It is therefore the 'methods approved by the State Board of Health' for the point in time that the test is given that must be shown by the State as part of the predicate for admissibility.
"The methods established by the State Board of Health with respect to the point in time of the administering of the P.E.I. test is found in the following rule:
"'(3) Methods Approved by the State Board of Health
"'....
"'(b) Approval of Instrumentation.
"'1. Photo-electric Intoximeter. The approved procedure, technique, or method of operation appears on the Photo-electric Intoximeter Operating Record Card.'
"Rules of State Board of Health, Rule 420-1-1-.01(3)(b). The clear import of this rule is that the test operator must follow the method or procedure outlined on the 'operating record card' when administering the P.E.I. test. It is this method, stated on the operator's card, which the test operator must testify to in order to satisfy the predicate for admissibility of the P.E.I. test results. Therefore, there is no need for the State to offer testimony concerning a periodic inspection of the testing equipment in order to lay the predicate for admissibility of the P.E.I. test results."
492 So. 2d at 294-95.
As in Ex parte Reed, Lum's argument centers on the second element of the statutory predicate for admission of breath-test results: that the test be performed according to methods approved by the Department. Lum does not challenge the first or third elements of the statutory predicate, and the record reflects that the State established each of those elements. Officer Fillmore testified that the Draeger had been specifically approved by the City of Brewton as its breath-testing device and that he had a permit from the Department to operate the Draeger. The only question in this case, as in Ex parte Reed, is whether the annual certification and semiannual inspections contained in Reg. 370-1-1-.02(2) are part of the "methods" approved by the Department that must be proven for admission of the breath-test results. We hold, as the Supreme Court did in Ex parte Reed, that they are not; it is the methods for the point in time the test is given that must be shown as part of the statutory predicate for admissibility. As noted in Reg. 370-1-1.01(4)(b), the approved methods for the Draeger device for the point in time that the test is administered are contained within the device's computer software, which, upon initiation of a testing sequence, automatically requires the operator to input certain information and then performs internal calibration and diagnostic checks.
We recognize that, when Alabama began using the I-5000, the Alabama Supreme Court held that for I-5000 breath-test results to be admissible proof that the device had been inspected on a monthly basis was necessary. However, the Court did so because of the differences between the P.E.I. and I-5000 devices; the Court stated, in re
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