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State v. Snell11/23/2004
eport 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 revisions to § 61-8-409, MCA (1997), eliminated the provision limiting the use of PAST results to probable cause determinations. Additionally, in March 2002, the Department of Justice, Forensic Science Division, deleted Rule 23.4.201(7)(b), ARM, and part of Rule 23.4.225(1)(a), ARM, which previously had restricted use of PAST results solely as evidence of probable cause. It is clear from these revisions that the Legislature intended, and the Department concurred, that the results of PAST tests be admissible evidence at trial, provided, of course, that a proper foundation is laid before admission.
After the 1997 amendments, this Court did not again take up an in-depth analysis of the PAST test until it decided Weldele in 2003. In Weldele , the state produced foundation evidence regarding the PAST machine's certification and the training the officers received, but did not produce evidence tending to prove the reliability of the science underlying the PAST. Weldele , 45, 58. Despite the fact that no scientific evidence existed in the Weldele record, this Court took it upon itself to review the evidence submitted five years earlier in Strizich , and the legislative history of the 1997 amendments. See Weldele , 52-54. I agree with Justice Rice's dissent in Weldele , that reviewing evidence presented in a prior case was inappropriate. See Weldele , 86. The Weldele court should have waited until it had scientific evidence before it opined on the "statistically unreliable" nature of the PAST, especially given the fact the Strizich evidence was five years old by the time the Weldele court reviewed it.
I also disagree with the Weldele court's summation of the law as set forth in Strizich . In Strizich , we approved the District Court's order which determined that PAST results could not be substantive evidence at all, and stated that the District Court's decisions "were correctly based on the statutory scheme pertaining to [PAST's]. . . ." Strizich , 286 Mont. at 11, 952 P.2d at 1371. Thus, we held that PAST results were inadmissible as a matter of law. Strizich , 286 Mont. at 12, 952 P.2d at 1372. Then in Weldele , we began with a blanket statement that "the admissibility of [PAST] evidence remains the law as set forth in Strizich ; it has not been overruled and district courts are bound by it." Weldele , 58. However, we then turned around and said:
This is not to say that we will never approve trial admission of this evidence. The State may take the opportunity at any time to establish [PAST] reliability. If the State in any given case establishes that the [PAST] results it seeks to admit are reliable and accurate, the results could then be admissible if they otherwise satisfy all other requirements for admissibility. . . . Under Strizich , Weldele was not obligated to prove that the [PAST] was unreliable. Rather, the State had the burden of offering scientific and expert testimony to establish the test's reliability.
Weldele, 57-58. So which is it? Inadmissible as a matter of law, or admissible if proved reliable? The point is this: in this case the majority's analysis of the PAST issue derives solely from Strizich and Weldele . Strizich at a minimum has been superceded by statute and the shaky analysis of Weldele. Weldele itself was decided on five year old evidence not before the Court. We must give the PAST a fresh look.
Substantial scien
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