Opinion
No. 5-731 / 04-0965
Filed November 23, 2005
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, District Associate Judge.
Defendant appeals his conviction for operating while intoxicated. AFFIRMED.
Richard Bartolomei of Bartolomei Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Steve Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee-State.
Considered by Miller, P.J., Vaitheswaran, J., and Hendrickson, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On the evening of September 17, 2003, State Trooper Benjamin Lampe received a report of a driver on Interstate 80 who was swerving in the road. Lampe obtained a description of the car and a license plate number. Lampe followed the vehicle for about three miles and observed the vehicle swerving in and out of its lane. The vehicle was exceeding the speed limit and failed to signal when it changed lanes to pass other vehicles.
Lampe stopped the vehicle, which was driven by Steven Koester. Lampe noticed an odor of alcohol on Koester. Koester had watery, bloodshot eyes. He failed the horizontal gaze nystagmus test. Koester admitted to Lampe he had a few beers that evening. Lampe arrested Koester and took him to the Jasper County Jail.
At the jail, Koester agreed to a breath test. Lampe was alleged to be certified to use a DataMaster cdm device. The test results, utilizing the DataMaster at the jail, showed Koester had a blood alcohol content of .135 percent. Koester was charged with operating while intoxicated (OWI), in violation of Iowa Code sections 321J.2(1)(a) (Supp. 2003) (under the influence of an alcoholic beverage) and (b) (having an alcohol concentration of .08 or more).
Koester filed pretrial motions to suppress and a motion in limine directed towards the admissibility of the DataMaster cdm test results. The issues in this appeal are limited to whether the State established the necessary foundation regarding the certification of the DataMaster and whether Trooper Lampe was certified to operate the DataMaster. The district court determined both issues adversely to Koester.
Koester waived his right to a jury trial, and the case was tried on the minutes of testimony. The district court found Koester had been driving while under the influence of an alcoholic beverage and while he had an alcohol concentration of .08 or more. Koester was convicted under sections 321J.2(1)(a) and (b). Koester was sentenced to seven days in jail and assessed a fine.
II. Standard of Review
On issues regarding the admissibility of evidence under Iowa Rule of Evidence 5.104, our review is for the correction of errors of law, and not for an abuse of discretion. See State v. Long, 628 N.W.2d 440, 445 (Iowa 2001). We give deference to the findings of the district court, and will uphold the findings if they are supported by substantial evidence. Id. at 447.
III. Merits
While we could affirm based on Koester's conviction under section 321J.2(1)(a), we note that the trial court corroborated its findings that Koester was driving while under the influence by finding that his test result showed an alcohol concentration greater than .08. Therefore, we will address the issues raised by Koester concerning the DataMaster breath testing device.
Koester contends the State did not adequately establish a foundation to admit the DataMaster test results under section 321J.15. Specifically, Koester claims: (1) the testing and calibration procedures contain numerous errors; (2) the Division of Criminal Investigation (DCI) does not establish a margin of error for each DataMaster machine; (3) the DCI does not establish a margin or error over the machine's entire range of operation; (4) this DataMaster was not properly certified because it was not tested over the entire operational range; (5) the State did not establish the accuracy and reliability of the test results, and (6) the state trooper was not adequately certified.
Section 321J.15 (2003) provides:
Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating a motor vehicle in violation of section 321J.2 or 321J.2A, evidence of the alcohol concentration or the presence of a controlled substance or other drugs in the person's body substances at the time of the act alleged as shown by a chemical analysis of the person's blood, breath, or urine is admissible. If it is established at trial that an analysis of a breath specimen was performed by a certified operator using a device intended to determine alcohol concentration and methods approved by the commissioner of public safety, no further foundation is necessary for introduction of the evidence.
In short, this section has three requirements which must be met for the introduction of the chemical analysis of a person's breath for alcohol concentration: (1) the analysis was performed by a certified operator; (2) the operator was using a device intended to determine alcohol concentration; and (3) the certified operator was using methods approved by the Commissioner of Public Safety.
We will first address whether the arresting officer was certified to operate the DataMaster. Although the trial court made no findings or conclusions regarding this issue, the record reveals that the officer was trained and certified to operate the machine. In addition, he received updates from time to time from the DCI regarding changes to be considered. We are satisfied that the record supports a finding that the officer was properly certified to operate the DataMaster.
The DataMaster has been found to meet the criteria of a device intended to determine alcohol concentration. State v. Hornik, 672 N.W.2d 836, 839-40 (Iowa 2003).
The Commissioner of Public Safety has promulgated rules regarding the certification and recertification of the DataMaster cdm. Iowa Admin. Code r. 661-7.2 (2003). The rule requires that all devices used to test a person's breath for alcohol concentration must be certified to be in proper working order within a period of one year immediately preceding use. Iowa Admin. Code r. 661-7.2(1). The record shows the DataMaster in question was recertified on May 30, 2003, well within one year from September 17, 2003, the date the test was given to Koester.
In addition, the certification procedures provide:
The margin of error for a breath alcohol concentration (grams/210L) will be determined at the time of certification for each instrument. The margin of error can and shall be no greater than 0.004 or 5% which ever is greater.
Id. (citing Department of Public Safety document, "Certification or Re-certification of the DataMaster cdm"). From this statement, Koester claims there must be a specific margin of error determined for each DataMaster machine, and that the margin of error must be determined across the machine's entire range of operation.
Koester asserts that the court in Cripps v. Iowa Department of Transportation, 613 N.W.2d 210, 214 (Iowa 2000), required that a specific margin of error be determined for each DataMaster machine. Our reading of Cripps, leads us to conclude that the statutory language "margin of error inherent in the device or method used" did not command that the margin of error established for a class of devices is the proper criteria rather than the margin of error for the particular machine used. See Cripps, 613 N.W.2d at 214. The court in Cripps concluded that the Iowa Department of Transportation's reliance on the margin of error for the particular machine was not inconsistent with the statute. Id. The court did not hold that this was the only approved method for determining the margin of error. See id.
We conclude that the method used to calibrate the DataMaster conformed to the procedures established by the DCI and contained in the document "Certification or Re-certification of the DataMaster cdm." While Koester suggests there are many possible variables that could lead to inaccuracies in the certification of the machine, we believe, as did the trial court, it would serve no purpose to surmise what might be the situation, when in fact the evidence demonstrated the machine was recertified in accordance with the procedures promulgated by the DCI and the manufacturer.
In State v. Stratmeier, 672 N.W.2d 817, 821 (Iowa 2003), the court concluded:
[U]nless it can be demonstrated that the test results are so unreliable as to preclude consideration, the results of a test taken by methods other than those strictly prescribed by administrative regulation are admissible. Under such circumstances, any challenge to the procedures used in obtaining the chemical test goes to the weight of the evidence rather than its admissibility.
We conclude the State complied with the statutory and administrative requirements for admitting the results of Koester's breath test under section 321J.15. The test was performed by a certified operator. The device used, the DataMaster, was approved for use by the commissioner. The methods for operating the device were approved by the commissioner. The device had been certified to be in proper working order within one year prior to the test. Therefore, we conclude Koester's test results were properly admitted into evidence, and his challenges merely go to the weight of the evidence.
We affirm Koester's conviction.