Submitted on Briefs: January 4, 2017
FROM: District Court of the Tenth Judicial District, In and
For the County of Fergus, Cause No. DC 14-72 Honorable Jon A.
Oldenburg, Presiding Judge
Appellant: Chad Wright, Chief Appellate Defender, Moses
Okeyo, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana Thomas
P. Meissner, Fergus County Attorney, Lewistown, Montana
Jeremiah Shea Justice.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Ryan Jeffrey Counts appeals the Tenth Judicial District
Court, Fergus County, order denying his motion to suppress
his breath test and his subsequent jury conviction for
Driving Under the Influence in violation of §
61-8-406(1), MCA. On September 1, 2013, Counts was arrested
on suspicion of driving under the influence of alcohol. He
was transported to the Fergus County Sheriff's Office
where he submitted a breath sample on the Intoxilyzer 8000.
The breath test indicated Counts had a blood alcohol content
(BAC) of .201 percent. Following a bench trial, Counts was
convicted on a single count of DUI in Fergus County Justice
Court. Counts appealed to the District Court for a new trial
pursuant to § 46-17-311(1), MCA. On November 19, 2014,
Counts moved to suppress the results of the breath test. The
District Court denied the motion on January 28, 2015. On
April 30, 2015, following a trial de novo, a jury convicted
Counts of DUI per se. On May 4, 2015, the District Court
sentenced Counts to two days in jail with two days suspended,
and ordered him to pay a $600 fine and $75 surcharge. Counts
We review a district court's rulings on admissibility of
the evidence for an abuse of discretion, which occurs if the
district court acts arbitrarily or unreasonably and
substantial injustice results. State v. Jenkins,
2011 MT 287, ¶ 4, 362 Mont. 481, 265 P.3d 643.
"When a court bases a discretionary ruling on a question
of law, however, we review that conclusion to determine
whether the district court correctly interpreted the
law." State v. Frickey, 2006 MT 122, ¶ 9,
332 Mont. 255, 136 P.3d 558.
Before the District Court, Counts argued the State did not
know which gas standard was used during his breath test and
whether the gas standard had expired because the State did
not produce written documentation. At the suppression
hearing, Sheriff Eades produced the gas standard itself and
testified that he had personal knowledge that it was the gas
standard used when administering Counts' breath test.
Counts argued that Sheriff Eades' testimony was
insufficient to lay the foundation for admission of his
breath test. The District Court rejected Counts' argument
and correctly ruled: "Whether [Sheriff Eades']
testimony is sufficient to satisfy a jury at trial regarding
the validity of the test is yet to be seen. That is an issue
of the credibility and weight of the testimony that must be
decided by the trier of fact."
On appeal, Counts argues that the breath test was
inadmissible and the District Court should have suppressed
the evidence because the State failed to lay the foundation
by demonstrating the Intoxilyzer used for the breath test was
properly field certified pursuant to the Senior
Operator's Manual and the Administrative Rules of
Montana. The State argues that we should not consider this
argument because at no time in Counts' written motion or
during the suppression hearing before the District Court did
he argue that the Intoxilyzer was not properly field
certified and Counts now seeks to present new legal theories
for exclusion of the Intoxilyzer evidence. We agree.
Counts maintains that his theory has always been that the
State cannot provide an adequate foundation for his breath
test, and that parties may "bolster their preserved
issues with additional legal authority or to make further
arguments within the scope of the legal theory articulated to
the trial court." State v. Claassen, 2012 MT
313, ¶ 19, 367 Mont. 478, 291 P.3d 1176 (quoting
State v. Montgomery, 2010 MT 193, ¶ 12, 357
Mont. 348, 239 P.3d 929). While this is true, Counts'
foundation argument at trial was limited to the State's
ability to establish which gas standard was used in the
Intoxilyzer when the test was administered and whether the
gas standard had expired. Counts did not challenge the
Intoxilyzer's field certification, nor did he even
reference the Administrative Rules or field certification
procedures which now form the basis for his challenge on
appeal. Merely uttering the word "foundation"
before the trial court does not give a party carte blanche to
raise every conceivable foundation argument on appeal under
the auspices of it being "within the scope of the legal
theory articulated to the trial court."
Claassen, ¶ 19.
"The rule is well established that this Court will not
address an issue raised for the first time on appeal."
State v. Martinez, 2003 MT 65, ¶ 17, 314 Mont.
434, 67 P.3d 207. Allowing a party to raise new arguments or
change its legal theory on appeal "is fundamentally
unfair" to the district court, which would be faulted
for failing to rule on an issue it never had the opportunity
to consider. Martinez, ¶ 17. A party must state
grounds for an objection that are sufficiently specific to
preserve the appeal. Claassen, ¶ 19. In this
case, the District Court was only given the opportunity to
rule on Counts' theory that the State failed to lay
foundation for the breath test because it could not show
which gas standard was used when Counts' breath was
tested. The District Court was not given the opportunity to
address Counts' argument that the Intoxilyzer was not
properly field certified pursuant to the Manual and the
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable standards of
review. Counts failed to raise and, therefore, waived his
claim that the Intoxilyzer was not properly field certified.