Submitted on Briefs: November 8, 2017
Court of the Fourth Judicial District, In and For the County
of Missoula, Cause No. DC-32-2016-333 Honorable John W.
Larson, Presiding Judge
Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law
Office, Missoula, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Kirsten
H. Pabst, Missoula County Attorney, Selene Koepke, Deputy
County Attorney, Missoula, Montana.
Amicus Curiae: Matthew A. Dodd, Dodd Law Firm, P.C., Bozeman,
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
Beth Williams (Williams) appeals from an order of the Fourth
Judicial District Court, Missoula County, denying her motion
to exclude breath evidence in a Driving Under the Influence
of Alcohol (DUI) proceeding against her. The District Court
issued its order on Williams's appeal from the Missoula
County Justice Court. We affirm.
On January 19, 2016, Highway Patrol Trooper Smart observed
Williams driving at varying speeds, signaling left when no
left turn was possible, weaving within her lane, and crossing
the fog line. Trooper Smart initiated a traffic stop and
noticed Williams's speech was slurred, her eyes were
bloodshot, her reaction time and movements were slow, and her
gait was unsteady. Trooper Smart arrested Williams for DUI
and transported her to the Missoula County Detention Center.
Williams provided a breath sample on the Intoxilyzer 8000
indicating she had an alcohol concentration of 0.145. The
State charged Williams with DUI. The Missoula County Justice
Court subsequently convicted Williams of DUI. Williams
appealed de novo to the Fourth Judicial District Court,
Missoula County, and filed a motion in limine to exclude her
Intoxilyzer 8000 breath test results. Williams argued the
evidence should be excluded or her DUI dismissed because of
the State's failure to preserve Computer Online Breath
Records Archive (COBRA) data underlying her breath test
results. Williams maintained the State's actions resulted
in spoliation of the evidence or, alternatively, denial of
her right to due process.
The District Court held an evidentiary hearing. Matthew
Malhiot (Malhiot), the proprietor of Forensic Alcohol
Consulting & Training, testified regarding the
Intoxilyzer 8000 and the fact that some other states have
determined that COBRA statistical analysis may show that an
Intoxilyzer 8000 malfunctioned. Malhiot testified that the
Intoxilyzer 8000 saves electronic data on an internal memory
card inside the unit and the software the State uses does not
allow for COBRA data to be accessed or transferred off the
unit. Malhiot testified that Williams's Breath Analysis
Report Form (BARF) indicated the Intoxilyzer 8000 did not
encounter any errors when it conducted Williams's breath
test. Benjamin Vetter (Vetter), the director of the Breath
Alcohol Program at the State Crime Lab, also testified.
Vetter testified that if the Intoxilyzer 8000 encounters an
error during a breath test, the error will be indicated on
the Intoxilyzer 8000's screen or will print. Vetter
testified that the State is currently in the process of
obtaining funding to purchase new Intoxilyzer 9000 units and
software that will make COBRA data accessible.
The District Court concluded Williams did not establish the
COBRA data would contain "evidence of significance
either favorable or exculpatory" and the State's
failure to maintain software making COBRA data accessible was
not in bad faith. The District Court denied Williams's
motion to exclude concluding the State had not spoliated
evidence or denied Williams due process. Williams changed her
plea from not guilty to no contest and the State reduced her
charge. Williams is supported by amicus curiae, the National
College for DUI Defense, on appeal.
On appeal, Williams first argues spoliation remedies are
available in criminal cases. Spoliation is a civil cause of
action where relevant evidence is destroyed prior to trial.
Oliver v. Stimson Lumber Co., 1999 MT 328, ¶
31, 297 Mont. 336, 993 P.2d 11. Spoliation remedies include
sanctions outlined in the Montana Rules of Civil Procedure.
Spotted Horse v. BNSF Ry. Co., 2015 MT 148, ¶
20, 379 Mont. 314, 350 P.3d 52. In criminal cases, the rules
of criminal procedure outlined in Title 46, MCA, apply, not
the rules of civil procedure. State v. Jeffries,
2018 MT 17, ¶ 25, ___ Mont. ___, ___ P.3d ___. This is a
criminal proceeding and spoliation is not applicable.
Second, Williams argues the State denied her due process by
failing to maintain potentially useful COBRA data in an
accessible format and by intentionally deleting it. In
Arizona v. Youngblood, the United States Supreme
Court held that "unless a criminal defendant can show
bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of
due process of law." 488 U.S. 51, 58, 109 S.Ct. 333, 337
(1988). COBRA data is potentially useful; however, the
State's failure to maintain software making COBRA data
accessible was not made to dispose of evidence and,
therefore, does not demonstrate the State acted in bad faith.
See Jeffries, ¶ 21. Therefore, we conclude
Williams was not denied due process.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. This appeal presents no
constitutional issues, no issues of first impression, ...