                                          No. 04-273

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 122


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

PATRICK EUGENE FLAHERTY,

              Defendant and Appellant.



APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark, Cause No. ADC 2003-129
                     The Honorable Dorothy McCarter, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Wendy Holton, Attorney at Law, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, Mark W. Mattioli,
                     Assistant Attorney General, Helena, Montana; Robert J. Wood, Assistant
                     City Attorney, Helena, Montana



                                                        Submitted on Briefs: February 2, 2005

                                                                   Decided: May 17, 2005



Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Patrick Eugene Flaherty appeals from a Decision and Order of the Montana First

Judicial District Court denying his motion to suppress the results of an Intoxilyzer 5000

breath test. We affirm.

                                          ISSUE

¶2     Did the District Court abuse its discretion when it denied Flaherty’s motion to

suppress the results of the Intoxilyzer 5000 test?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     On February 22, 2003, at approximately 2:00 a.m., Helena Police Officer Derek

Wakefield observed a vehicle stopped partially in the roadway with its brake lights engaged.

Wakefield discovered Flaherty behind the wheel, apparently asleep, with his foot on the

brake pedal. Flaherty awakened and had difficulty putting the vehicle in park.

¶4     Wakefield observed that Flaherty appeared to be confused, had red eyes, and smelled

of alcohol. After conducting field sobriety tests and a preliminary alcohol screening test

(PAST), Wakefield arrested Flaherty, and placed him in handcuffs in the back seat of

Wakefield’s patrol vehicle.

¶5     Wakefield drove Flaherty to the Lewis and Clark County Detention Center, where

Flaherty submitted to a breath test using an Intoxilyer 5000 breath analysis instrument. The

Intoxilyer measured Flaherty’s blood alcohol content (BAC) at .252. Flaherty was charged

with driving under the influence of alcohol (first offense), pursuant to § 61-8-401, MCA, and

operating a noncommercial vehicle with a BAC of .10 or more (“DUI per se”), pursuant to


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§ 61-8-406, MCA (2001).

¶6     Flaherty was tried in Helena City Court, where he was convicted of DUI per se,

pursuant to § 61-8-406, MCA (2001), and acquitted of driving under the influence of alcohol,

pursuant to § 61-8-401, MCA. Flaherty appealed to the District Court for a trial de novo,

and moved to suppress the results of the Intoxilyzer test. The District Court denied his

motion to suppress by Decision and Order issued October 21, 2003. Flaherty pled guilty to

DUI per se, reserving his right to appeal the denial of his suppression motion. From this

denial, Flaherty timely appeals.

                               STANDARD OF REVIEW

¶7     The standard of review for evidentiary rulings is whether the district court abused its

discretion. State v. Fenton, 1998 MT 99, ¶ 11, 288 Mont. 415, ¶ 11, 958 P.2d 68, ¶ 11

(citations omitted).

                                      DISCUSSION

¶8     Did the District Court abuse its discretion when it denied Flaherty’s motion to

suppress the results of the Intoxilyzer 5000 test?

¶9     Flaherty argues that the District Court erred when it denied his motion to suppress the

results of the Intoxilyzer test because the test was not administered in compliance with Rule

23.4.212(7), A.R.M., which requires breath analyses to be performed according to the

operational checklist for the particular analysis instrument being used. Flaherty claims the

operational checklist required a 15-minute observation period, but he was at the Detention

Center for only 12 or 13 minutes before the test was administered. He argues that prior to

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his arrival, Wakefield could not have closely observed him to ensure that he did not put

anything in his mouth, nor belch or regurgitate, because Wakefield was otherwise occupied

driving his patrol vehicle while Flaherty was in the back seat, behind a partition. Flaherty

also claims that after they arrived at the Detention Center, Wakefield spent several minutes

at the opposite end of the hallway from where Flaherty was sitting, and actually left the room

at one point. Flaherty notes that he was left in the company of a jailer, but argues that there

is no evidence that the jailer was aware of the observation requirement. Thus, he concludes,

he was not observed for 15 minutes prior to the administration of the Intoxilyzer test in such

a manner as to comply with the requirements of the applicable A.R.M., and that this

foundational failure should have precluded the State from entering the Intoxilyzer results into

evidence.

¶10    The State responds that most of Flaherty’s detention was recorded on videotape, and

that it is clear from the tapes that Flaherty was always in the presence of police and/or

detention officers. The State points out that while Flaherty is visible on the Detention

Center’s videotape for 12 or 13 minutes prior to the Intoxilyzer test, Wakefield’s patrol car

video indicates that after arrival at the Detention Center, they remained in the car for a few

minutes while waiting for another DUI suspect to be processed. In addition, the walk from

the vehicle to the location where Flaherty appears on the Detention Center’s video took a

minute or two. Thus, the State maintains that Flaherty was under observation for well over

15 minutes before the test was administered.



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¶11    Flaherty directs our attention to State v. Utz (Idaho Ct. App. 1993), 867 P.2d 1001,

in which the Idaho Court of Appeals held that an officer who leaves a suspect with jailers

during the 15-minute observation period did not meet the foundational requirements for the

test results to be admissible as evidence. He further points to several cases from Tennessee,

in which that state’s court held that the observation period must be strictly followed. See,

e.g., State v. McCaslin (Tenn. Crim. App. 1994), 894 S.W.2d 310 (only 16 minutes of the

20-minute observation period occurred at the police station after the suspect was transported

in a patrol car where a plexiglass barrier separated him from the officer); State v. Korsakov

(Tenn. Crim. App. 2000), 34 S.W.3d 534 (while “an unblinking gaze” is not required, the

officer must be watching the defendant rather than performing other tasks).

¶12    The State responds that the Tennessee cases ignore the practical realities of law

enforcement, and that one of the functions of the video equipment is to allow an officer to

perform such tasks as pat-downs and booking without jeopardizing the officer’s effort to

obtain a timely breath test result. The State further asserts that many other state courts have

considered this issue and do not require as stringent a standard as does Tennessee. See, e.g.,

Nasser v. State (Ind. Ct. App. 1995), 646 N.E.2d 673 (officer left handcuffed suspect

unattended in back of patrol vehicle for several minutes during the deprivation period);

Glassman v. State, Dept. of Revenue (Colo. Ct. App.), 719 P.2d 1096 (officer completed

paperwork and admitted he took his eyes off suspect “for a second” while working on

forms); McKown v. Director of Revenue (Mo. Ct. App.), 908 S.W.2d 178 (officer watched

suspect in his peripheral vision while he completed other tasks).

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¶13    The District Court reviewed the videotapes from the Detention Center and the patrol

car in determining whether the 15-minute observation period was properly observed. The

court found that Wakefield observed Flaherty continually from the time he approached

Flaherty’s car until he placed Flaherty in the back seat of his patrol vehicle, and that while

Flaherty was in the back seat, Wakefield observed him via the rear view mirror. The court

further found that upon his arrival at the Detention Center, Flaherty was under observation

by at least one detention officer, as well as by videotape. Noting that the entire time from

the stop until Flaherty took the breath test well exceeded 15 minutes, the District Court

concluded that the test complied with the observation requirements of the operational

checklist referenced in Rule 23.4.212(7), A.R.M.

¶14    Every defendant is entitled to the protection of the procedural safeguards that are

contained in Montana’s administrative rules. Fenton, ¶ 16. However, as we noted recently

in City of Missoula v. Lyons, 2004 MT 255, ¶ 17, 323 Mont. 67, ¶ 17, 97 P.3d 1120, ¶ 17,

Rule 23.4.212(7), A.R.M., requires that the breath analysis be performed according to an

operational checklist, and the operational checklist has changed since Fenton was decided.

Our review of the record indicates that this newer version of the operational checklist was

in use at the time of Flaherty’s arrest. We know this because the operational checklist from

Flaherty’s arrest, signed by Wakefield, is part of the record and was, in fact, submitted to us

by Flaherty as a supplemental exhibit to his Brief. At the time of Flaherty’s arrest, the

checklist in use did not require that the subject be observed for 15 minutes, Fenton, ¶ 15, but

rather required “no oral ingestion of any material,” as we pointed out in Lyons, ¶ 17.

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¶15    The operational checklist requires that during the 15 minutes prior to testing, no oral

ingestion of any material occurs; that the suspect be instructed to deliver a proper sample;

and that the suspect be observed during sample delivery. We held in Lyons that the

operational checklist does not require that the test administrator keep his eyes on the subject

at all times, but requires observation during the actual testing. Lyons, ¶ 15. In Flaherty’s

situation, it is undisputed that he was observed during the actual testing, and the evidence

clearly demonstrates that he did not orally ingest any material during the 15 minutes prior

to the Intoxilyzer test.

¶16    We affirm district court decisions which reach the correct result regardless of the

court’s reasoning in reaching the decision. Phillips v. City of Billings (1988), 233 Mont. 249,

252, 758 P.2d 772, 774. Although the District Court based its conclusions on the premise

that the operational checklist, and by extension the applicable A.R.M., required the suspect

to be observed for 15 minutes prior to the Intoxilyzer test, the result reached is nonetheless

correct in light of the current requirements of the operational checklist. Thus, the District

Court did not abuse its discretion when it denied Flaherty’s motion to suppress the result of

the Intoxilyzer test.

                                      CONCLUSION

¶17    For the foregoing reasons, we affirm the District Court.


                                                                 /S/ PATRICIA O. COTTER




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We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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