State v. Jeffries

390 Mont. 189

410 P.3d 972

2018 MT 17

STATE of Montana, Plaintiff and Appellee,

v.Anna-Grace JEFFRIES, Defendant and Appellant.

DA 17-0225

Supreme Court of Montana.

Submitted on Briefs: December 13, 2017

Decided: February 6, 2018

For Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Jim Nugent, City Attorney, Angela Suzanne Robertson-Bakken, Deputy City Attorney, Missoula, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Anna-Grace Jeffries (Jeffries) appeals from an order of the Fourth Judicial District Court, Missoula County, affirming the Missoula Municipal Court (Municipal Court). The Municipal Court denied Jeffries's motion to exclude breath evidence in a Driving Under the Influence of Alcohol (DUI) proceeding against her. We affirm.

¶2 We restate the dispositive issue as:

Did the Municipal Court abuse its discretion by denying Jeffries's motion to exclude breath evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In the early morning of March 24, 2016, Missoula Police Officer Kamura observed Jeffries driving with no taillights and initiated a traffic stop. Jeffries's vehicle had a large portion of its front bumper missing, only one operational headlight, and was dripping fluid. Further investigation revealed recent property damage along Jeffries's route where pieces of her vehicle were left behind. Upon contact, Officer Kamura noticed Jeffries's speech was slurred. Jeffries admitted to having two or three mixed drinks several hours earlier. While assisting Officer Kamura, Missoula Police Officer Jensen also noticed Jeffries's speech was slurred and noted additionally that her eyes were bloodshot, she was unsteady on her feet, and her breath smelled strongly of alcohol. Jeffries's performance on Standard Field Sobriety Tests indicated she was impaired. Officer Jensen arrested Jeffries and transported her to the Missoula County Detention Center. Jeffries provided a breath sample on the Intoxilyzer 8000, which indicated she had an alcohol concentration of 0.217. The City of Missoula (the City) charged Jeffries with aggravated DUI, failure to have operational headlights and taillights, failure to carry proof of insurance, and failure to give notice of an accident causing property damage.

¶4 During discovery, Jeffries requested information about the Intoxilyzer 8000 used to take her breath sample. Specifically, she requested production of the calibration and testing records for the three months prior to March 24, 2016, any dates it was taken out of service, and any reason it was removed from service. The City provided this information to Jeffries. Additionally, Jeffries requested production of all Computer Online Breath Records Archive (COBRA) data for the Intoxilyzer 8000 for the twelve months prior to March 24, 2016. The City did not possess or have access to the COBRA data requested and did not provide this information to Jeffries. Jeffries filed a motion to compel this disclosure. Jeffries did not request the printed records for the Intoxilyzer 8000 for the twelve months prior to March 24, 2016. The State of Montana Forensic Science Division maintains the printed records.

¶5 Jeffries filed a motion in limine to exclude her Intoxilyzer 8000 breath test results or dismiss her DUI charge as a sanction against the City for failing to produce the requested COBRA data. In her motion to exclude, Jeffries argued the City intentionally spoliated, or destroyed, the COBRA data she requested by not purchasing software that would allow the City to access it and by periodically deleting the Intoxilyzer 8000's internal memory card. Alternatively, relying on California v. Trombetta , 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Arizona v. Youngblood , 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), Jeffries argued the City violated her due process rights by not purchasing software that would allow the City to access COBRA data and by periodically deleting the Intoxilyzer 8000's internal memory card.

¶6 The Municipal Court held an evidentiary hearing on Jeffries's motion to exclude. Benjamin Vetter (Vetter), the director of the Breath Alcohol Program at the State Crime Lab, testified that an Intoxilyzer 8000 is a computer manufactured by CMI, Inc., (CMI) and approved by the National Highway Traffic Safety Administration that uses infrared technology to conduct breath analysis of suspected impaired drivers. Vetter testified that CMI sells software that allows COBRA data to be transferred from an Intoxilyzer 8000's internal memory card and accessed online, but Montana does not have this type of software. Regardless of the type of software used, each Intoxilyzer 8000 saves information for every breath test it completes on an internal memory card. In Montana, the internal memory card of each Intoxilyzer 8000 is deleted annually during regularly conducted maintenance. If an Intoxilyzer 8000's internal memory card fills up prior to its annual maintenance, new test results automatically overwrite older tests. Vetter explained that at the time the State purchased the Intoxilyzer 8000s it currently uses, the State did not have the infrastructure, dedicated phone lines or Internet access, or money to purchase the COBRA-transferring software.

¶7 Vetter testified that after an Intoxilyzer 8000 performs a breath test, it typically prints several copies of the test results on a Breath Analysis Report Form, suitably referred to as "BARF." A BARF contains the serial number of the Intoxilyzer 8000 performing the test; the time, date, and location of the test; and the test taker's name, date of birth, and sex. A BARF lists the test sequence results, which include several air blanks, several diagnostic and calibration tests, and the breath volume and amount of alcohol detected from two separate breath samples of the test taker. If an error occurs during testing, an error code populates on the Intoxilyzer 8000's screen or prints. No BARF will print in the case of an error.

¶8 Vetter testified that COBRA data stored on the internal memory card contains "potentially" more information than what is printed on the BARF. Vetter explained that having access to the COBRA data relevant to Jeffries's Intoxilyzer 8000 breath test result is not necessary to assure the validity of her test result. Vetter testified that he could tell the Intoxilyzer 8000 was correctly functioning on March 24, 2016, by looking at Jeffries's BARF.¹ Vetter testified that instead of being helpful to invalidate or discredit an individual BARF, additional COBRA data, if any, could be helpful to complete statistical analysis and identify the historical trends of an Intoxilyzer 8000. Vetter testified that comparing all the BARFs from a particular Intoxilyzer 8000 to BARFs from another Intoxilyzer 8000 is another way to perform a similar statistical analysis.

¶9 Matthew Malhiot (Malhiot), the proprietor of Forensic Alcohol Consulting & Training, also testified at the evidentiary hearing.

Malhiot has experience working as a police officer and has extensive training from CMI on the Intoxilyzer 8000. Malhiot testified that COBRA data can be used for troubleshooting and statistical analysis. Malhiot testified about two instances in Florida where the Florida Defense Bar utilized COBRA data, which the State of Florida makes publicly available online, to discover software issues with the Intoxilyzer 8000. One instance occurred in 2006 where a software "glitch" "erroneously assigned error messages that were not applicable or failed to assign error messages that were applicable" when test takers began, but did not complete their breath test within the allotted testing time. As a result of the 2006 software glitch, Malhiot testified that the State of Florida issued 168 Brady notifications to defendants whose Intoxilyzer 8000 test results may have been impacted. There was another issue in 2009 where the Florida Defense Bar reviewed COBRA data and noticed that the Intoxilyzer 8000's flow sensors were measuring abnormally high breath volume, amounts that were not "humanly possible." Malhiot testified that, in Montana, the data stored on the Intoxilyzer 8000's internal memory card and not printed on the BARF is "potentially useful" to "look at the data statistically and evaluate the breath test machine operation over time." Without COBRA data, Malhiot testified he would have to "manually go through the breath tests" and would not be able to incorporate any data that is internally stored.

¶10 After the hearing, the Municipal Court denied Jeffries's motion to exclude her Intoxilyzer 8000 breath test results. In its order, the Municipal Court concluded that: (1) the State was not required to maintain information or data in the most convenient format for Jeffries; (2) spoliation was not applicable; and (3) "[Jeffries] did not establish that the COBRA data constituted exculpatory evidence" as required under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to establish a due process violation. Jeffries reserved her right to appeal the adverse determination of her motion to exclude. The Municipal Court held a bench trial, where the City presented Jeffries's Intoxilyzer 8000 breath test results, and Jeffries was found guilty of aggravated DUI, failure to have operational headlights and taillights, failure to carry proof of insurance, and failure to give notice of an accident causing property damage. Jeffries appealed to the Fourth Judicial District Court, Missoula County. The District Court affirmed the Municipal Court's order denying Jeffries's motion to exclude. Jeffries appeals.

STANDARD OF REVIEW

¶11 This Court reviews cases that originate in municipal court and are appealed to district court as if the appeal were originally filed in this Court, examining the record independently of the district court's...