Opinion
No. 5-009 / 03-1832
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt (motion to suppress) and James D. Birkenholz (sentencing), District Associate Judges.
Donna Williams appeals following her conviction for operating while intoxicated, first offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Defendant Donna Williams appeals from the judgment and sentence entered following her conviction for operating while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2(2)(a) (2001). She claims the district court erred in overruling her motion to suppress a breath alcohol test result. She argues the DataMaster breath alcohol instrument used to take her breath test was not correctly certified to be in working order by the Division of Criminal Investigation (DCI). We affirm the ruling of the district court.
On December 10, 2002, Ankeny police officers were dispatched to investigate a three car accident. Williams was the driver of one of the three vehicles involved in the collision. Officer Brennan spoke to Williams. He noticed that her speech was slow and slurred, her eyes were bloodshot and watery, and she smelled strongly of alcohol. Williams admitted to Officer Brennan that she had been drinking alcoholic beverages prior to the accident. Officers found a partially full beer can in her vehicle. Officer Brennan transported Williams to the Ankeny Police Department, where she failed standardized field sobriety tests. A preliminary breath test indicated her blood alcohol concentration exceeded the legal limit. Williams then submitted to a DataMaster breath test, which showed her blood alcohol concentration was .141.
The State charged Williams with OWI, first offense. Williams moved to suppress the DataMaster breath test results. Her motion alleged that the DCI laboratory certification of the machine was invalid. The district court overruled Williams's motion. Williams waived her right to a jury trial and stipulated to a trial on the minutes of testimony. The district court found her guilty of OWI, first offense. Williams now appeals.
Williams contends the district court erred in concluding the DataMaster machine used to take her breath test was correctly certified by the DCI. We review motion to suppress rulings that are based on alleged statutory violations for the correction of errors at law. State v. Stratmeier, 672 N.W.2d 817, 820 (Iowa 2003).
The State claims that by supplementing the certification forms, it cured any alleged deficiencies making Williams's argument moot. See State v. Briggs, 666 N.W.2d 573, 576 (Iowa 2003) ("As a rule, we do not decide appeals in which the issue becomes nonexistent or academic and, consequently, no longer involves a justiciable controversy.") Because the record does not affirmatively show that the minutes of testimony were amended to include the supplemented certification forms, we will address the merits of Williams's claim.
Iowa Administrative Code rule 661-7.2(1) mandates the annual re-certification of the DataMaster for direct breath testing by the DCI criminalistics laboratory. Iowa Admin. Code r. 661-7.2(1) (2002). On September 17, 2002, DCI criminalist James Bleskacek examined the DataMaster at the Ankeny police department. On September 18, 2002, the Criminalistics Laboratory certified that the DataMaster at the Ankeny police department was in proper working order. Robert Monserrate, the senior criminalist in the Breath Alcohol Section of the criminalistics laboratory, signed the September 18 report as the "Laboratory Analyst." Bleskacek also signed the September 18 report, next to the words "Reviewed By."
Citing Iowa Code section 691.2 and Iowa Administrative Code rule 661-12.8(g), Williams argues that the foundational requirements for the admission of Williams's breath test results from the DataMaster were not met since DCI criminalist Monserrate did not personally inspect, examine, analyze, compare or identify anything before he signed the certificate verifying the reliability of the DataMaster for direct breath testing as of September 17, 2002. The State concedes that Monserrate never examined the Ankeny Police Department's DataMaster.
Iowa Code section 691.2 states:
Any report, or copy of a report, or the findings of the criminalistics laboratory shall be received in evidence, if determined to be relevant . . . with the same force and effect as if the employee or technician who accomplished the requested analysis, comparison, or identification had testified in person.
Iowa Administrative Code rule 661-12.8 provides:
A report issued by the laboratory is on a form providing the following information, if known: . . .
g. The findings of the examining person and the examining person's signature.
According to the DCI lab's practice, Monserrate reviewed reports brought back to the lab by Bleskacek, and then, as senior criminalist, signed the certification forms based on Bleskacek's inspection of the instruments.
Because the September 18, 2002, report contains Bleskacek's findings and his signature, we find the State substantially complied with Iowa Code section 691.2 and Iowa Administrative Code rule 661-12.8(g). Monserrate's signature on the September 18 report does not invalidate the report, nor does it call into question the accuracy of the report's findings or the validity of the DataMaster's test results. See State v. Bird, 663 N.W.2d 860, 862 (Iowa 2003) (holding that substantial compliance with statutes and administrative rules governing calibration of preliminary breath testing machines is sufficient when the underlying purpose of preliminary breath testing is not compromised). Accordingly, we conclude the district court did not err in overruling Williams's motion to suppress.