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State of Montana v. Thomas D. Gai

October 23, 2012

STATE OF MONTANA, PLAINTIFF AND APPELLEE,
v.
THOMAS D. GAI, DEFENDANT AND APPELLANT.



APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 11-117 Honorable Susan P. Watters, Presiding Judge

The opinion of the court was delivered by: Justice Jim Rice

Submitted on Briefs: August 15, 2012

Decided: October 23, 2012

Filed:

Clerk

Justice Jim Rice delivered the Opinion of the Court.

¶1 Thomas D. Gai (Gai) appeals from the order of the Thirteenth Judicial District Court affirming his justice court conviction for DUI per se. We affirm and address the issues:

¶2 1. Did the District Court err by affirming Gai's conviction based upon an incorrect application of Montana Rule of Evidence 803(6)?

¶3 2. Did the District Court err in concluding that there was sufficient evidence to support Gai's conviction?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On August 8, 2010, Trooper Mark Tome (Tome) of the Montana Highway Patrol was dispatched to single-car crash on the western outskirts of Billings. Upon his arrival, Tome observed a pickup in an irrigation ditch and Gai standing nearby in a private driveway. Gai told Tome he had probably fallen asleep behind the wheel. Tome noticed an odor of an alcoholic beverage on Gai's breath and that his eyes were bloodshot and glassy. When asked, Gai confirmed that he had consumed alcohol.

¶5 This prompted Tome to commence an investigation of Driving Under the Influence (DUI) of alcohol. Tome's investigation culminated in Gai providing a breath sample on an Intoxilyzer 8000 machine (Intoxilyzer) approximately two hours after the crash. The sample reported a blood alcohol concentration (BAC) of 0.081. Tome cited Gai for driving a motor vehicle on a public road with an alcohol concentration of 0.08 or more, in violation of § 61--8--406(1)(a), MCA, Montana's "DUI per se" statute.

¶6 Prior to trial, the State sent notice to Gai of its intention to introduce reports at trial from the Montana state crime laboratory (Crime Lab) concerning the Intoxilyzer's accuracy. Attached to the notice were Crime Lab reports documenting the Intoxilyzer's conformity with state administrative rules regarding regular maintenance and testing of the machine. Also attached was a report of Gai's Intoxilyzer test. The State's notice was sent in conformity with M. R. Evid. 803(6), which permits the State to introduce "written reports" from the Crime Lab that would normally be inadmissible hearsay, so long as the State gives sufficient notice to allow the defendant to depose the compiler of the reports or to subpoena the compiler for trial. Gai did not depose or subpoena anyone from the Crime Lab.

¶7 A bench trial in Justice Court was conducted on February 11, 2011. The State called Tome as its only witness, who recounted the events of August 8, 2010, and confirmed that Gai had provided a breath sample which reported a 0.081 BAC. Gai's counsel cross-examined Tome as to the accuracy of the Intoxilyzer. During this examination, Gai's counsel offered as evidence a 2005 letter sent from a Crime Lab forensic scientist to an attorney on another case. In the letter, the forensic scientist acknowledged that the Intoxilyzer had a margin of error of up to five percent. The Justice Court sustained a hearsay objection to the letter and excluded it. Gai's counsel continued to cross-examine Tome, who acknowledged that the Intoxilyzer was subject to potential inaccuracies.

¶8 At the close of the State's case-in-chief, Gai moved the Justice Court to dismiss the charge on the ground the State had failed to present sufficient evidence to establish guilt beyond a reasonable doubt. Gai argued that the margin of error in the Intoxilyzer's result created reasonable doubt that Gai's alcohol concentration had, in fact, reached the statutorily prohibited 0.08 level. During his argument on the motion, Gai's counsel reoffered the 2005 letter, and the Justice Court admitted it. The Justice Court did not immediately rule on the motion, and Gai rested without calling any witnesses. The Justice Court advised it would render a verdict in a few days. In a written order, the Justice Court denied Gai's motion and found him guilty. Gai appealed to the District Court, alleging the Justice Court erred, inter alia, by denying his motion to dismiss.

ΒΆ9 The District Court affirmed the Justice Court's denial of Gai's motion. The District Court began by noting that Gai had failed to depose or subpoena any expert from the Crime Lab to trial in response to the State's notice under M. R. Evid. 803(6) that it would introduce the reports. The District Court reasoned that Gai's failure to utilize these pre-trial procedures to attack the admission of these ...


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