State v. Montoya

305 Neb. 581

941 N.W.2d 474

STATE of Nebraska, appellee,

v.Lorenzo MONTOYA, appellant.

No. S-19-660.

Supreme Court of Nebraska.

Filed April 17, 2020

Joe Nigro, Lancaster County Public Defender, and Sarah J. Safarik, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The defendant appeals his conviction and sentence for driving under the influence, which were affirmed on intermediate appeal to the district court. The defendant argues that the county court should have granted his motions to suppress challenging his stop for lack of reasonable suspicion, his arrest for lack of probable cause, and the results of the test of his breath alcohol content because the machine used was not at the time of its calibration accompanied by a certificate of analysis of the wet bath solutions containing the name of the person who actually tested the solutions as required by the rules and regulations of Nebraska’s Department of Health and Human Services. Amended certificates of analysis were later obtained, which listed the correct name of the person who tested the solutions. The defendant also asserts that the evidence was insufficient to support his conviction and that his sentence was excessive.

BACKGROUND

Lorenzo Montoya was charged in the county court for Lancaster County with one count of operating a motor vehicle while under the influence, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), by operating or being in actual physical control of a motor vehicle while under the influence of alcoholic liquor or of any drug or when he had "a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath," on or about March 12, 2017. Montoya was also charged with having one or more prior convictions under Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2018), having committed one prior offense in November 2008 and another in April 2008.

STOP AND ARREST

At trial, Trooper Michael Thorson of the Nebraska State Patrol testified that he first observed Montoya’s vehicle on March 12, 2017, at approximately 1:50 a.m., traveling in front of him going the same direction. Montoya’s vehicle appeared to be traveling faster than the 35-mile-per-hour speed limit. Thorson also observed the vehicle cross over the center line. According to Thorson, the road was curved, but the weather and road conditions were normal.

Thorson waited until the vehicle was at a good location for radar detection and used his radar to detect the vehicle’s speed. Thorson testified that he is trained at estimating speeds and is certified in the operation of radar devices. Thorson testified that, as required, he had checked his radar at the beginning of his shift on March 12, 2017, with tuning forks to ensure it was working properly. The radar displayed that the vehicle was traveling at 50 miles per hour.

Thorson initiated a traffic stop. Montoya was the driver of the vehicle. There were passengers in the front passenger seat and in the back. When Thorson approached the stopped vehicle, he immediately detected a distinct odor of alcoholic beverage. He noticed that Montoya’s eyes were bloodshot and glossy, which Thorson explained was "typical for someone who’s been drinking."

Thorson asked Montoya to sit in the passenger seat of the police cruiser, where Thorson administered a horizontal gaze nystagmus test. Thorson testified that it is his usual practice to conduct this test inside his police cruiser in order to eliminate outside distractions such as lights. Thorson described that he and Montoya faced each other during the test. Thorson testified that Montoya demonstrated six out of six of the possible clues the test looks for. According to Thorson, observation of four out of the six impairment clues indicates a high probability that the individual "is under the influence of alcohol at a .10 or above." Observing more clues indicates that the individual has an even higher breath alcohol concentration.

Thorson also conducted the walk-and-turn test on Montoya. Thorson testified that Montoya exhibited two out of two of the standardized clues for intoxication during the instructional phase of the test and five out of eight of the clues during the walking phase of the test. According to Thorson, demonstrating only two out of these eight clues is considered failing the test.

After conducting the horizontal gaze nystagmus and the walk-and-turn tests, Thorson asked Montoya if he wished to participate in the one-legged stand test. Montoya declined.

Montoya had initially reported to Thorson during the stop that he had consumed only one "tall boy." Montoya later reported during the stop that, between 11:30 p.m. and 1:45 a.m., he had consumed three "tall boys," each containing 24 to 32 ounces of beer.

Thorson arrested Montoya and took him to a nearby facility where Montoya’s breath alcohol content could be tested by a DataMaster machine. The DataMaster tests a sample of a person’s breath with an infrared detector to determine a person’s breath alcohol content. The test was conducted approximately 1 hour after Montoya’s last reported drink. Thorson followed the appropriate checklist to ensure proper operation of the test. The test showed that Montoya had a concentration of .134 of a gram of alcohol per 210 liters of breath.

Thorson testified that he is trained in driving under the influence investigation and certified in performing a DataMaster test. He has 12 years of experience in which he has conducted approximately 3,000 driving under the influence investigations. Thorson opined that Montoya was under the influence of alcohol when he operated his motor vehicle on March 12, 2017.

DATAMASTER

Officer Grant Powell testified at trial that he is the DataMaster maintenance supervisor for Lancaster County. He conducted the inspections and calibration check of the DataMaster that tested Montoya’s breath sample.

The purpose of calibration verification is to ensure that the DataMaster machine is accurately reading the alcohol content of breath samples. Rules and regulations of the Department of Health and Human Services, which appear in title 177 of the Nebraska Administrative Code, require that calibration must occur within 40 days prior to the subject sample. Powell described that the process utilized by Lancaster County law enforcement and approved under title 177 involves two tests with wet bath water and alcohol mixtures, one containing a target value of .080 and the other of .150. The solutions produce a vapor at the target values when heated to the approximate temperature of exhaled breath.

The wet bath simulator solutions used by Lancaster County law enforcement are provided by a company in North Carolina, RepCo Marketing (RepCo). When shipped, the simulator solutions are accompanied by certificates of analysis which contain information required by the regulations, including the name of the person who prepared, tested, and supplied the solution.

Powell conducted an inspection of the DataMaster subsequently used to test Montoya’s breath alcohol content within the required 40-day period. The digital display, operational lights, operational condition, and printer all passed their required testing. Powell testified that the DataMaster machine used to test Montoya’s breath sample was calibrated within the required 40-day period and that it passed both the internal check and the wet bath solution check. Powell signed a certification so reflecting.

Powell elaborated that the DataMaster in question was calibrated using simulator solutions from lots 16801 and 16104, which were accompanied by certificates of analysis from RepCo certifying that the solutions were accurate for their target values. The certificates of analysis originally accompanying the simulator solutions stated that a RepCo employee, Alma Palmer, had prepared, tested, and supplied the simulator solutions contained in those lots. On April 19, 2018, Powell became aware that the person who had tested the solutions in lots 16801 and 16104 was not the person whose name appeared on the certificates of analysis. On May 7, RepCo sent amended certificates of analysis for those lots stating that a RepCo employee, Colby Hale, not Palmer, was the person who had prepared, tested, and supplied the simulator solutions. The amended certificates were created to put the person’s name on them who had actually tested those solutions. Nothing else in the amended certificates was different from the original certificates of analysis.

Powell testified that he had no concerns about the accuracy of the target values for the simulator solutions in lots 16801 and 16104 or about whether the solutions were working correctly when he conducted the relevant calibration of the DataMaster used to conduct the test on Montoya’s breath sample. Powell noted that the solutions were tested not just at RepCo, but also by a separate company. Further, the solutions were run through four different DataMaster machines, each with their own unique internal reference standards, and the solutions did not test outside of the 5-percent margin of error on any of the four machines.

Powell noted that the "test card" for Montoya’s breath sample showed a normal breath flow rate, a successful blank test and internal standard check, two analyses of the breath sample without any noted errors, and then another successful blank test. Powell testified that in his professional opinion the DataMaster utilized to test Montoya’s breath alcohol content was in proper working order on the date of the test, March 12, 2017.

MOTION TO SUPPRESS EVIDENCE OBTAINED AS RESULT OF STOP

Before trial, on October 31, 2017, Montoya had moved to suppress all fruits of the stop of his vehicle that was allegedly without reasonable suspicion or probable cause, in violation of the 4th and 14th Amendments to the U.S....