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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES J. GENGLER, )
) Court of Appeals No. A-6761
Appellant, ) Trial Court No. 4FA-96-674 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1617 - January 15, 1999]
______________________________)
Appeal from the District Court, Fourth Judicial
District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: Geoffry B. Wildridge, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Thomas A. Gatlin, Assistant District
Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
James J. Gengler was charged with driving while
intoxicated. At Gengler's trial, the State relied on the result of
an Intoximeter test (i.e., a breath test) that was administered to
Gengler following his arrest.
Under regulations promulgated by the Department of Public
Safety, the calibration of every breath test machine used in Alaska
must be verified at least every 60 days. [Fn. 1] The calibration
of the Intoximeter machine used to test Gengler's breath had been
verified at regular intervals prior to Gengler's test; but,
following Gengler's test, the police failed to verify the
calibration of this Intoximeter before the next 60-day deadline
expired.
At trial, Gengler sought to introduce evidence of this
fact (the police department's failure to meet the next verification
deadline). Gengler argued that the failure to verify the machine's
calibration before the end of the 60 days tended to cast doubt on
the accuracy of his Intoximeter test result. The trial judge
refused to allow Gengler to introduce this evidence. Gengler
challenges this ruling on appeal.
As we explain in more detail below, a police department's
failure to perform the next scheduled calibration verification
following a defendant's breath test can conceivably be relevant to
attack the accuracy of the defendant's test result but only if
the defendant offers evidence that the machine was in fact out of
calibration when it was next tested. Gengler offered no evidence
that the machine's calibration was faulty when it was later tested,
so the failure to verify the machine's calibration within the 60-day
period was irrelevant. The trial judge properly refused to let
Gengler introduce this evidence, and we therefore affirm Gengler's
conviction.
Gengler was arrested for driving while intoxicated on the
evening of March 8, 1996. He submitted to a breath test shortly
after midnight on March 9th. (The result was .143 percent blood-
alcohol.)
The machine used to test Gengler's breath, an Intoximeter
3000, had been tested and its calibration certified on January 11th
58 days before Gengler's test. Under 13 AAC 63.100(c), this
certification was good for up to 60 days. Gengler's breath test was
performed during this 60-day period of certification.
But when Gengler asked about subsequent certifications of
the Intoximeter, the prosecutor admitted that he was not aware of
another documented certification of the machine until May 13, 1996
that is, 123 days after the January 11th certification. Gengler
asked the trial judge to advise the jury of this fact, or allow him
to introduce evidence of this fact, for the purpose of attacking the
accuracy of Gengler's breath test result.
In Herter v. State [Fn. 2], this court held that a breath
test result is normally admissible (and thus presumptively accurate)
if the machine used to administer the breath test has been
"calibrated" within 60 days prior to the challenged test, even if
the police failed to "calibrate" the machine by the next 60-day
deadline. [Fn. 3]
(We have placed the word "calibrate" in quotation marks
because Herter misuses the term. "Calibration" refers to the
process of setting or adjusting a machine so that it yields
scientifically accurate results; this process can be analogized to
setting a clock to a known accurate time or setting an empty scale
to zero. Under 13 AAC 63.100, breath test machines are not
calibrated every 60 days. Rather, their calibration is verified
(tested against a known accurate standard) every 60 days. If,
during this verification process, the tester discovers that the
machine is out of calibration, then the machine must be
recalibrated; under 13 AAC 63.100(b), "the recalibration must be
performed by the scientific director, a supervisor, or other
qualified person designated by the scientific director.")
Gengler does not attack the holding in Herter, and he
concedes that the calibration of the Intoximeter was verified within
60 days prior to his test. Gengler argues, however, that Herter
only establishes a presumption that his breath test was accurate.
Gengler contends that he was entitled to attack this presumption by
showing that the police missed the deadline for the next calibration
verification (i.e., by introducing evidence that the Intoximeter's
calibration was not verified again until May).
We agree with Gengler that he should be able to attack the
accuracy of the breath test result. However, the fact that the
authorities missed the deadline for the next scheduled calibration
verification was, by itself, irrelevant to the accuracy of Gengler's
breath test.
Evidence is relevant only if it tends to prove or disprove
a fact that is of consequence to the proper decision of the
proceeding. [Fn. 4] The accuracy of Gengler's breath test was
obviously of consequence to the proper determination of the charge
against him. But the fact that the Intoximeter's calibration was
not verified again until two months after Gengler's breath test does
not, by itself, tend either to support or undermine the accuracy of
Gengler's breath test. Failure to test a machine indicates nothing
about how well (or how poorly) the machine has been functioning.
We upheld the breath test result in Herter because the
testimony of law enforcement witnesses "provide[d] ample basis to
support the conclusion that the absence of strict compliance [with
the 60-day verification deadline] had no appreciable effect on the
accuracy of Herter's breath test result." [Fn. 5] We noted that
Herter "ha[d] neither alleged nor established any potential adverse
effect that might have resulted" from the State's failure to meet
the next verification deadline. [Fn. 6] In other words, Herter
failed to show that the missed deadline had any relevance to
assessing the accuracy of the breath test result.
We acknowledge that Gengler would have a strong claim of
relevance if, when his Intoximeter was finally tested, it had been
found to be out of calibration (that is, if it was yielding
inaccurate results at that time). But Gengler never asserted that
the Intoximeter was out of calibration when it was tested in May.
Unless accompanied by such an offer of proof, the fact that the
authorities failed to perform the next scheduled verification of the
Intoximeter's calibration had no bearing on the accuracy of
Gengler's breath test.
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
13 AAC 63.100. BREATH TEST INSTRUMENT CALIBRATION AND
CERTIFICATION.
(a) Before an individual breath test instrument is certified
for use in the state, the correct calibration of the instrument must
be verified. This initial verification must be performed by the
scientific director, a supervisor, or other qualified person
designated by the scientific director. The scientific director will
maintain a record of the initial verification of calibration of each
instrument certified for use in the state.
(b) If a breath test instrument must be recalibrated, the
recalibration must be performed by the scientific director, a
supervisor, or other qualified person designated by the scientific
director.
(c) At intervals not to exceed 60 days, the accuracy of the
calibration of a breath test instrument must be verified. The
verification of calibration must be performed by an operator,
supervisor, the scientific director, or other qualified person
designated by the scientific director. In his or her discretion,
the scientific director will require verification of calibration at
more frequent intervals.
Footnote 2:
715 P.2d 274 (Alaska App. 1986).
Footnote 3:
Id. at 276.
Footnote 4:
See Alaska Evidence Rule 401.
Footnote 5:
Herter, 715 P.2d at 276.
Footnote 6:
Id.
