DUI: Hearsay rule not applicable to breath test foundation, State not required to demonstrate that field certifications fell within hearsay exception… 4th-DUI conviction affirmed… H. Brown affirmed.

Bozeman Officer Hiester saw Jason Jenkins driving a motorcycle erratically 6/19/10. He administered field tests and arrested him for DUI. A breath test at the jail indicated .138. He was charged with 4th or subsequent DUI. At trial the State, through testimony of Hiester, submitted without objection the Intoxilyzer annual certification, then offered through Hiester 2 field certification documents prepared by a Sheriff’s Dept. officer. Jenkins objected on the basis of hearsay because Hiester, while certified as a breath test specialist, was not the author or custodian of the documents. Judge Holly Brown overruled his objection, and he was convicted by a jury, and Brown sentenced him to DOC for 13 months to be followed by 5 years suspended. Jenkins appeals, contending that she erred by admitting hearsay as part of the foundation for his breath test.

Brown did not abuse her discretion in admitting the breath test. Jenkins argues that the field certification documents were hearsay and admissible only upon compliance with the Rule 803(6) “records of regularly conducted activity” exception as attested by the “custodian or other qualified witness,” and that Hiester was not a custodian or other qualified witness because he did not observe or participate in the certification. A judge considering breath test foundation evidence must proceed under Rule 104(4). Delaney (Mont. 1999). 104(4) 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.

104(a) authorizes the judge to determine whether there is adequate foundation for breath test results in a DUI prosecution without regard to whether the certification forms are hearsay. Delaney. White (Mont. 2009) indicates that breath instrument certification documents are hearsay and may not be received unless the State demonstrates an exception to the hearsay rule. This is inconsistent with Delaney and Carter (Mont. 2005) where we followed Delaney and held that a 6th-Amendment confrontation right was not implicated by use of the certification reports. To the extent that White is inconsistent with Delaney, Rule 104(a), and this opinion, it is overruled. The State was not required to demonstrate that the field certifications fell within an exception to the hearsay rule. Neither admissibility of the certifications nor whether they were an exception to the hearsay rule was determinative of whether Brown could consider them in deciding whether there was adequate foundation for the breath test. Foundation is a question of law for the judge. The certifications are not substantive evidence of DUI. Id.

McGrath, Wheat, Morris, Baker, Rice.

State v. Jenkins, DA 11-361, 11/15/11.

Suzanne Marshall (Marshall Law Office), Bozeman, for Jenkins; Asst. AG John Paulson; Dep. Gallatin Co. Atty. Eric Kitzmiller