                            No.     94-613
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,




APPEAL FROM:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Honorable Ted 0. Lympus, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               James C. Bartlett; Hash, O'Brien & Bartlett,
               Kalispell, Montana

          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Micheal S. Wellenstein, Ass't Attorney General,
               Helena, Montana
               Valerie D. Wilson, Deputy Flathead County
               Attorney, Kalispell, Montana



                                   Submitted on Briefs:   July 6, 1995
                                               Decided:   August 8, 1995
Filed:


                                      I
                                  Clerk
Justice Karla M. Gray delivered the Opinion of the Court

        Anthony J. Woods (Woods) appeals from the Judgment and Order
of Conviction entered by the Eleventh Judicial District Court,
Flathead County, on a jury verdict finding him guilty of operating
a vehicle with an alcohol concentration of .lO or more.                    We
reverse.
        The dispositive issue on appeal is whether the District Court
abused its discretion in admitting breath test evidence over Woods'
objection that a proper foundation was not established and, on that
basis, erred in denying his motion to dismiss the charge.
        Woods originally was charged in the Justice Court of Flathead
County with violating § 61-a-406, MCA, by driving a vehicle while
his alcohol concentration, as shown by analysis, was .10 or more.
His motion to dismiss the charge was denied and he was found guilty
of the offense.      After judgment was entered, Woods appealed to the
District Court.
        A jury trial was held in the District Court on October 17,
1994.      Deputy   Sheriff   Annette   Holliday   testified   regarding   her
activities in arresting Woods,          transporting him to the Flathead
County Detention Center (Detention Center) and conducting sobriety
tests and a breath test to measure Woods' alcohol concentration.
The Montana Department of Justice, Division of Forensic Science,
breath analysis report form, reflecting Woods' breath alcohol
concentration (BAC) at . 188, was admitted over Woods' objection of
insufficient    foundation.     Woods moved for dismissal or a directed
verdict in his favor on the basis that the State had not listed a
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witness qualified to lay the necessary foundation for admission of
the report form; the court denied the motion.
     During Deputy Holliday's continued testimony, Woods objected
on foundation grounds to admission of the Intoxilyzer breath
analysis    report produced at the Detention Center,           which also
reflected   Woods'   BAC at .188.        The District Court admitted the
exhibit.    A videotape of Woods performing sobriety tests at the
Detention Center was played for the jury.
     At the conclusion of the State's case, Woods renewed his
motion to dismiss the charge and direct a verdict, on the basis
that admission of the breath test evidence without the necessary
foundation was impermissible and, absent that evidence, the State
had failed to prove its case.       The District Court again denied the
motion.
     The jury found Woods guilty of the misdemeanor offense of
driving a vehicle with an alcohol concentration of .lO or more.
Woods appeals.
     Did the District Court abuse its discretion in admitting
     breath test evidence over Woods' objection that a proper
     foundation was not established and, on that basis, err in
     denying his motion to dismiss the charge?
     Woods was charged with violating § 61-e-406, MCA, by driving
a vehicle while his alcohol concentration was .lO or more as shown
by an analysis of his blood, breath or urine.           Absolute   liability
attaches to commission of the offense; the State need not prove
that the offense was committed knowingly, negligently or purposely.
Sections 61-8-406 and 45-2-104, MCA.            Thus,   the critical proof
necessary to establish commission of the offense is the blood,
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breath or urine test result.
      The district court has broad discretion in determining whether
evidence is relevant and admissible; absent a showing of abuse of
discretion, we will not overturn the court's determination.          State
v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citation
omitted). Here, given the offense charged and the necessity of the
breath test results to establish that Woods committed the offense,
error in admitting the breath test evidence would necessitate
dismissal of the charge for failure of proof.
      The State of Montana     closely     regulates breath analysis
instruments utilized to determine the alcohol concentration of a
person charged with an alcohol-related driving offense.         See §§
23.4.201 through 23.4.221, ARM.       A defendant charged with such an
offense is    entitled to the procedural        safeguards   which     are
contained in the administrative rules.       State v. West (1992), 252
Mont. 83, 89, 826 P.2d 940,    944; citing State v. O'Brian (1989),
236   Mont. 227, 229, 770 P.2d 507, 508.
      The administrative rule at issue in this case provides, in
pertinent part:
      (1) Breath analysis instruments shall be field certified
      for proper calibration at least once every seven (7) days
      by a breath test specialist/senior operator, or in the
      event of a senior operator's absence, his/her authorized
      designee, using a solution of ethyl alcohol approved by
      the division of forensic science and using the field
      certification   report form for the breath analysis
      instrument being certified.
Section 23.4.213, ARM. Woods contends that the State failed to lay
a foundation for his BAC test results by establishing compliance
with § 23.4.213 (l), ARM, and argues that, as a result, the BAC
                                  4
evidence was inadmissible.
     The State concedes that it did not lay a proper foundation for
admission of Woods' BAC test results.   No evidence whatsoever was
introduced that the Intoxilyzer had been properly and timely
calibrated as required by 5 23.4.213(l), ARM. Absent the required
foundation, we conclude that the District Court abused its
discretion in admitting the breath test evidence. As a result, we
hold that the court erred in denying Woods' motion to dismiss the
charge against him.
     Reversed and remanded with instructions to enter an order of
dismissal.




We concur:
