Opinion
Case No. 20000891-CA.
FILED: December 6, 2001. (Not For Official Publication)
Second District, Ogden Department, The Honorable W. Brent West.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellant.
Glen W. Neeley, Ogden, for Appellee.
Before Judges Jackson, Davis, and Thorne.
AMENDED MEMORANDUM DECISION
The State appeals the denial of its Motion to Reconsider, which was treated as a motion for a new trial under Rule 24 of the Utah Rules of Criminal Procedure. See State v. Johnson, 782 P.2d 533 (Utah Ct.App. 1989). We review the trial court's decision for "abuse of discretion. Any legal determinations made by the [district] court as a basis for its denial of a new trial motion are reviewed for correctness." State v. Loose, 2000 UT 11,¶ 8, 994 P.2d 1237.
The State challenges the district court's legal conclusion that a proper foundation for the admission of breath test results requires evidence of the accuracy and reliability of the testing instrumentality, which in this case included an intoxilyzer and a portable breath test. However, we have clearly stated that "proof of proper maintenance of a breathalyzer machine and competence of the person administering the test [are] prerequisites for admission of test results." Williams v. Schwendiman, 740 P.2d 1354, 1357 (Utah Ct.App. 1987). The State provided no such proof. Thus, the district court correctly excluded "all of that evidence."
The State also challenges the trial court's ruling that the remaining evidence "did not rise to the level of probable cause" to believe that Kinne was "under the influence of alcohol . . . to a degree that render[ed him] incapable of safely operating a vehicle." Utah Code Ann. § 41-6-44(2)(a)(ii) (Supp. 1999). We review this conclusion for correctness, "affording a measure of discretion to the trial court."State v. Wright, 1999 UT App 86,¶ 6, 977 P.2d 505. Having excluded all breath test results, the court was "left with" and weighed the following evidence: (1) Kinne was stopped for speeding; (2) he had slow and slurred speech; (3) he admitted to having two beers; (4) the smell of alcohol emanated from his person; and (5) he performed three inconclusive field sobriety tests. The court determined that "this [evidence] did not rise to the level of probable cause . . . even giving [the State] all of the possible benefits of this particular situation." We agree, and conclude that the State failed to provide sufficient evidence to establish probable cause to believe that Kinne violated section 41-6-44(2)(a)(ii). Thus, the district court did not err in its legal conclusions, and did not abuse its discretion in denying the State's Motion to Reconsider.
Affirmed.
WE CONCUR: James Z. Davis, Judge, William A. Thorne, Jr., Judge.