Submitted on Briefs: February 21, 2018
FROM: District Court of the Sixth Judicial District, In and
For the County of Park, Cause No. DC 17-43 Honorable Brenda
R. Gilbert, Presiding Judge.
Appellant: Karl Knuchel, Aaron Brann, Karl Knuchel P.C.,
Appellee: Timothy C. Fox, Montana Attorney General, Ryan
Aikin, Assistant Attorney General, Helena, Montana, Bruce
Becker, Park County Attorney, Livingston, Montana
JEREMIAH SHEA JUDGE.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion, 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 Montana Reports.
Reid Lincoln Erickson appeals the Order of the Park County
Justice Court allowing testimony about the certification of
an Intoxilyzer from a Park County Sheriff's Deputy who
had not personally performed the certifications, and the
Sixth Judicial District Court's Order affirming the
Justice Court's Order. We affirm.
On November 7, 2016, Trooper James Sulages stopped Erickson
in Livingston for following too closely and for speeding in a
school zone. After initiating the traffic stop, Sulages
detected the odor of alcohol in the vehicle. When Sulages
asked Erickson for his license, registration, and proof of
insurance, Erickson repeatedly tried to give Sulages vehicle
registration as proof of insurance. Sulages performed field
sobriety tests on Erickson. Based on the field sobriety test
results, Erickson's driving behavior, and the odor of
alcohol, Sulages arrested Erickson on suspicion of driving
under the influence of alcohol ("DUI"). Following
the arrest, Sulages administered an Intoxilyzer breath test
at the detention center. Erickson registered a blood alcohol
content of .089. Sulages cited Erickson for (1) DUI-first
offense; (2) speeding in a school zone; (3) failure to carry
proof of insurance-first offense; and (4) following too
On November 15, 2016, Erickson requested a trial by jury,
and, on November 17, Erickson pled not guilty to all four of
his violations. On May 2, 2017, the Justice Court conducted a
bench trial. The Justice Court admitted the printed
results of the Intoxilyzer breath test with no objection from
Erickson. The State called Deputy Jason Hopkin to testify
regarding the Intoxilyzer certifications performed on October
25 and December 1, 2016, to certify the Intoxilyzer
instrument used to test Erickson's breath. Though
qualified to certify Intoxilyzer instruments, Hopkin did not
personally certify the Intoxilyzer instrument used on
Erickson. Erickson objected to Hopkin's testimony on
grounds of lack of foundation and hearsay. The Justice Court
overruled Erickson's objection. Erickson was found guilty
of speeding, following too closely, and DUI. The charge of no
insurance was dismissed after Erickson presented evidence he
had insurance at the time of the offense. The Justice Court
sentenced Erickson to ten days in jail, with nine days
suspended, and fined him $945.00. Erickson appealed to the
District Court and argued that the Justice Court abused its
discretion in allowing Hopkin to testify regarding the field
certifications. The District Court affirmed, finding the
field certifications fall within the business records
exception, and that any qualified agent of that department
can testify regarding the evidence. Erickson appeals.
The Park County Justice Court is a court of record. In an
appeal to the district court from a justice court of record,
the district court functions as an intermediate appellate
court and must confine its review to the record. Stanley
v. Lemire, 2006 MT 304, ¶¶ 24-25, 334 Mont.
489, 148 P.3d 643 (citing §§ 3-5-303, MCA,
3-10-115, MCA). The district court reviews the justice
court's findings of fact to determine whether they were
clearly erroneous, reviews discretionary rulings for an abuse
of discretion, and reviews legal conclusions to determine
whether they are correct. Stanley, ¶ 25; §
3-10-115(1), MCA. On appeal from the district court's
review of the justice court decision, this Court examines the
record independently to determine whether the justice
court's findings of fact were clearly erroneous, whether
its discretionary rulings were an abuse of discretion, and
whether its legal conclusions were correct. State v.
Eystad, 2017 MT 29, ¶ 10, 386 Mont. 291, 389 P.3d
1014 (citing Stanley, ¶ 26).
M. R. Evid. 104(a) provides:
Preliminary questions concerning the qualification of a
person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the court.
In making its determination it is not bound by the rules of
evidence except those with respect to privileges.
court considers whether adequate foundation for admission of
breath test results in a DUI prosecution exists, M. R. Evid.
104(a) "authorizes the court to do so without regard to
whether the [Intoxilyzer] certification forms are
hearsay." State v. Jenkins, 2011 MT 287,
¶¶ 8-10, 362 Mont. 481, 265 P.3d 643 (holding that
a district court did not err in admitting breath test
instrument certifications because the certifications were not
substantive evidence of the DUI offense) (citing State v.
Delaney, 1999 MT 317, ¶¶ 16, 18, 297 Mont.
263, 991 P.2d 461). Thus, the State need not demonstrate that
field certifications fall within an exception to the hearsay
rule. Jenkins, ¶ 9. Instead, the State must
demonstrate the accuracy of the instrument was certified in
accordance with regulations as part of the foundation for
admission of breath test evidence. State v.
Incashola, 1998 MT 184, ¶ 8, 289 Mont. 399, 961
P.2d 745; Admin R. M. 23.4.213(1) (2017). Certification
complying with regulations "constitutes an adequate
foundation for admissibility of the breath tests results . .
. ." Incashola, ¶ 16; Admin R. M.
23.4.213(1)(i) (a valid field certification "shall
create the inference that the breath [test] instrument was in
proper working order at the time of the subject test. . .
Erickson argues the Justice Court improperly admitted the
Intoxilyzer field certifications because they were without
foundation and were inadmissible hearsay. Erikson argues the
Justice Court abused its discretion when, over the objections
of Erickson's counsel, it allowed Hopkin to testify to