               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38579

STATE OF IDAHO,                                     )
                                                    )    2012 Opinion No. 51
       Plaintiff-Respondent,                        )
                                                    )    Filed: September 28, 2012
v.                                                  )
                                                    )    Stephen W. Kenyon, Clerk
TIFFANY LEIGH TURBYFILL,                            )
                                                    )
       Defendant-Appellant.                         )
                                                    )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Steven C. Verby, District Judge.

       Order denying motion to dismiss DUI charge, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Tiffany Leigh Turbyfill appeals from her conviction for felony driving under the
influence of alcohol. Turbyfill argues that pursuant to Idaho Code § 18-8004(2), the State is
prohibited from prosecuting her because in breath testing, one of her three breath samples
yielded an alcohol concentration of less than the legal limit. The district court denied Turbyfill’s
motion to dismiss, and she challenges that order.
                                                 I.
                                        BACKGROUND
       Turbyfill was stopped by Deputy Reynolds of the Bonner County Sheriff’s Department
for operating a vehicle with a broken taillight.        Because Turbyfill smelled of alcohol and
admitted that she had been drinking, Deputy Reynolds asked her to submit to breath testing,
utilizing an Alco-Sensor III testing instrument. Turbyfill’s first breath sample yielded an alcohol
concentration reading of .054, and her second sample a reading of .108.            Because of the

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divergence between these two samples, Reynolds had Turbyfill provide a third breath sample,
which showed a .110 alcohol content. As a result of the samples that exceeded the .08 legal
limit, Turbyfill was charged with felony driving under the influence of alcohol (DUI), I.C. §§ 18-
8004(1)(a), 18-8005(5).
       Turbyfill filed a motion to dismiss the charge, asserting that because her first breath test
showed an alcohol concentration of less than .08, the State was prohibited from prosecuting her
for DUI. She urged that dismissal was required by I.C. § 18-8004(2), which generally disallows
prosecution for DUI if the person had an alcohol concentration of less than 0.08 as shown by
analysis of his blood, urine, or breath. At the hearing on Turbyfill’s motion, the State called as
witnesses Deputy Reynolds and Jeremy Johnston, a forensic scientist. Deputy Reynolds testified
that he administered the breath testing properly and that he had no reason to believe that the
testing instrument was malfunctioning in any respect. Mr. Johnston’s testimony centered upon
the extreme variance between the alcohol concentration measured in Turbyfill’s first breath
sample and her two following breath samples. His testimony included the following:
                Q.     Okay. And what would be the potential explanations for why the
       first and second sample were not within a .02 of one another? 1
                A.     There’s several reasons why you could have a sampling event
       where the first and second sample weren’t within the .02. But the .02 correlation
       is put into place to eliminate external sources of alcohol contamination either
       from stomach contents or from actual drinking alcohol, radio frequency
       interference, inconsistent sample delivery or inconsistent sample selection by the
       officer, and actual instrument calibration or malfunction.
                Q.     Okay. And what specifically are you referring to when you make
       reference to sample selection by the officer on this particular incident?
                A.     In this particular instance the Alco-Sensor III, which is in essence
       officer operated, the officers you know instruct the individual or instructed to
       have the individual blow until they get down to where they’re providing a deep
       lung air sample when they’re about to run out of breath. At that point the officer
       is instructed to push the read button which draws in a single point in time sample
       from the individual’s expired breath and analyzes that sample. If the officer is I
       guess a little quick on the trigger and presses the button too early and the person is
       providing either just mouth air or shallow lung air, you will get an



1
        The standard operating procedures for the Alco-Sensor III, adopted by the Idaho State
Police, call for testing of a third breath sample if the first two results differ by more than .02.
Idaho State Police, Standard Operating Procedure: Breath Alcohol Testing 3.2.3 (Rev. February
2008); Idaho State Police, Alco-Sensor III: Operator’s Training Manual, p. 5 (Rev. August
2006).

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       underrepresentation of what the person’s true alcohol content--breath alcohol
       content would have been.
               ....
               Q.       And when the sample turns out to be a .110 and what is the
       significance of the three separate samples in this testing process?
               A.       Well, after the first two samples were obtained, you had a .054 I
       believe is the number and a .108 so in that situation since they weren’t within the
       .02, you have one of two possibilities. You either have the .108 was overreported
       by an external contamination source of error or the .054 was underreported by
       potential inconsistent sample delivery or sample selection at that point. The third
       sample is then requested to try to troubleshoot and find out which one of those
       two is the valid sample.
               In this case the third sample was a .110; is that correct?
               Q.       .110. Correct.
               A.       Okay. .110. That would lead me to believe that the .054 was an
       underreporting situation, whether it was from inconsistent sample deliver[y] or
       inconsistent sample selection by the officer.
               ....
               Q.       Okay. So based on the samples that were provided in this series,
       this particular test sequence, in your opinion is one of those samples an invalid
       sampling?
               A.       I would say that the .054 was the aberration of the three. The first
       two samples not being within the .02. there was a source of error associated with
       one of the two samples. The first [sic] sample in essence validates the second
       sampling event and points to the first sample, the .054 being an aberration in the
       testing sequence.
               ....
               In this particular scenario I called it an aberration because after the first
       two samples were obtained there was clear evidence from the results that one of
       the two was an aberration and the third sample would then lend weight to which
       one was the aberration.

       After all the evidence was heard, the district court denied Turbyfill’s motion to dismiss,
concluding that the motion presented an issue of fact that would require a jury determination at
trial. The jury ultimately found Turbyfill guilty of DUI, and she appeals from the resulting
judgment. She challenges only the denial of her motion to dismiss the charge.
                                                II.
                                           ANALYSIS
       Turbyfill asserts that dismissal of her DUI charge is required by I.C. § 18-8004(2), which
states, “Any person having an alcohol concentration of less than 0.08 . . . as shown by analysis of
his blood, urine, or breath, by a test requested by a police officer shall not be prosecuted for
driving under the influence of alcohol . . . .”       This Court exercises free review over the

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application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106
(Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give
effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132
Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67
(Ct. App. 2000). The language of the statute is to be given its plain, obvious, and rational
meaning.    Burnight, 132 Idaho at 659, 978 P.2d at 219.             If the language is clear and
unambiguous, there is no occasion for the court to resort to legislative history, or rules of
statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage
in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative
intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.
App. 2001). To ascertain such intent, not only must the literal words of the statute be examined,
but also the context of those words, the public policy behind the statute and its legislative history.
Id. It is incumbent upon a court to give an ambiguous statute an interpretation which will not
render it a nullity. Id. Constructions of an ambiguous statute that would lead to an absurd result
are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004).
       Turbyfill’s argument that the test result of less than .08 on her first breath sample ipso
facto prohibits prosecution by operation of I.C. § 18-8004(2) ignores the evidence that this test
result was not an accurate measure of her actual breath alcohol concentration. Mr. Johnston’s
testimony indicated that the inconsistency between the .054 alcohol concentration result for
Turbyfill’s first breath sample and the results for her two subsequent samples was due to the
initial test being based upon a sample that contained only mouth air or shallow lung air, and not
the deep lung air that is necessary for an accurate measure of alcohol concentration. This,
according to Johnston, would result in an underrepresentation of the true alcohol content.
       In our view, Section 18-8004(2) does not prohibit prosecution where the test result of less
than .08 was demonstrably inaccurate or unreliable.          The same statute states that “[a]ny
person . . . whose test result is determined by the court to be unreliable or inadmissible against
him, may be prosecuted for driving or being in actual physical control of a motor vehicle while
under the influence of alcohol . . . on other competent evidence.” I.C. § 18-8004(2). Thus, the
statute expressly contemplates that only breath samples that are reliable will be utilized in




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application of the DUI laws. 2 Moreover, the purpose of the DUI statutes--to prevent accidents
and hazards caused by intoxicated drivers and to punish those drivers who choose to endanger
themselves and others--would not be served if test results on inadequate breath samples that
understate the driver’s true breath alcohol concentration could be used to trigger the Section 18-
8004(2) prohibition against prosecution. Such an application of the statute would give drivers an
incentive to produce deficient breath samples yielding inaccurate measures of breath alcohol
content. Interpretation of the statute in a manner that would validate inaccurate breath test
results and encourage intoxicated drivers to manipulate the breath testing procedures in order to
elude punishment would yield an absurd result that plainly was not the intent of the Idaho
Legislature in adopting this provision of Section 18-8004(2).
       Turbyfill argues, however, that a refusal to apply the Section 18-8004(2) bar against
prohibition in her case would be inconsistent with this Court’s decisions in State v. Mills, 128
Idaho 426, 913 P.3d 1196 (Ct. App. 1996), and State v. Mazzuca, 132 Idaho 868, 979 P.2d 1226
(Ct. App. 1999). We disagree. In Mills, the appellant provided two breath samples. The first
sample showed an alcohol concentration of .10, while the second measured .09. Id. At that time,
the legal limit for alcohol concentration was .10, so the .09 test result enabled Mills to invoke the
I.C. § 18-8004(2) bar against prosecution. Mills, 128 Idaho at 429, 913 P.3d at 1199. The State
contended that for purposes of I.C. § 18-8004(2), a “test” consists of two samples. Therefore,
the sole issue in Mills was whether both samples must be below the legal limit in order for the
Section 18-8004(2) bar against prosecution to apply. This Court held that if the BAC level of

2
       That I.C. § 18-8004(2) authorizes reliance only on accurate and reliable alcohol
concentration tests is further confirmed by legislative history. In 1983, the House Committee in
charge of redrafting I.C. § 18-8004 noted the purpose of the statute:
               First the committee wants to clarify that the analysis of blood, urine,
       breath or other bodily substances for evidence of alcohol, drug or other
       intoxicating substances need not be chemical analysis. Any analysis which is
       reliable is sufficient. This is done specifically to permit any reliable method of
       examination to be employed. Second, the committee wants to clarify that an
       individual may be prosecuted on the “other competent evidence standard” not
       only when he refuses to take an examination, but also when a court determines
       that the results of the examination are unreliable or inadmissible against him.
       This will clarify that should the results of an evidentiary test be suppressed for
       any reason an individual may be prosecuted if there is other competent evidence
       of intoxication.
H. JOURNAL, 47th Legislature, 1st Sess. 196 (1984) (emphasis added).


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any valid sample is less than 0.10, the driver cannot be prosecuted for DUI under Section 18-
8004(2). Mills, 128 Idaho at 429, 913 P.2d at 1199. Although Mills held that a single test result
below the legal limit is sufficient to effectuate the protection of Section 18-8004(2), the decision
does not aid Turbyfill because in Mills it was undisputed that both breath samples provided valid,
reliable measures of the accused’s true alcohol concentration. Here, by contrast, the State
presented extensive evidence that Turbyfill’s first test should not be deemed accurate. Johnston
testified that the differences between the first test and the two subsequent tests led him to the
opinion that the first test was an aberration and underrepresented Turbyfill’s true breath alcohol.
Hence, the holding in Mills does not control the issue before us.
       In the other case cited by Turbyfill, Mazzuca, we were required to decide whether tests
based on deficient breath samples are admissible to support a prosecution for DUI under
I.C. § 18-8004(2). The defendant had disregarded instructions to “blow continuously and as hard
as he could into the mouthpiece,” and instead blew short breaths. Mazzuca, 132 Idaho at 868,
979 P.2d at 1226. The first breath sample registered .14 and the second registered .11, but for
both samples, the test instrument indicated that the sample was deficient. At trial, the State’s
expert explained that “a deficient sample is not an invalid sample, but merely one in which the
subject did not breathe for a long enough period of time to reach sufficient deep lung air to give
the most accurate reading obtainable.” Id. at 870, 979 P.2d at 1228. A majority of this Court
held that these tests were admissible into evidence, despite being based upon deficient samples,
because the expert testimony and case law showed that alcohol concentration in the deficient
samples could not have been higher than the alcohol concentration that would have been
obtained from a proper deep lung air sample. Id. at 870-71, 979 P.2d at 1228-29. That is,
although the test readings for the deficient samples may not have accurately reflected the
defendant’s true alcohol concentration as measured through deep lung air, they did establish that
the defendant’s true alcohol concentration was at least the level shown on the deficient samples,
and therefore those tests constituted reliable evidence that Mazzuca’s alcohol concentration
exceeded the legal limit.
       Turbyfill asserts that it would be inconsistent to hold that a deficient sample resulting
from shallow lung air is valid and reliable when it benefits the State (because the deficient
samples show per se intoxication), but unreliable and invalid when it would prevent prosecuting
a driver. Turbyfill would be correct only if a deficient sample provided a true reflection of actual


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breath alcohol concentration. Both the Mazzuca opinion and the evidence in this case show that
such is not the case. Rather, a shallow breath test indicates only a minimum possible true
alcohol concentration. Therefore, if the shallow breath sample is above .08, it suffices to show a
violation of I.C. § 18-8004(1). But the converse is not true. A shallow breath sample testing at
below .08 does not inherently show that the individual’s true breath alcohol concentration is less
than .08. Consequently, it does not ipso facto bar prosecution by the terms of Section 18-
8004(2). Rather, if the State presents evidence challenging the accuracy of the test, a factual
issue may be presented. Here, there was evidence from which a fact finder could conclude that
the .054 test was not a valid measure of Turbyfill’s true breath alcohol concentration. Therefore,
the existence of the test did not require automatic dismissal by terms of I.C. § 18-8004(2).
        Although Turbyfill does not raise it as a claim of error on appeal, one component of the
trial court’s decision warrants further comment. The trial court here did not resolve the factual
issue presented by the State’s evidence concerning the accuracy and reliability of the test on
Turbyfill’s first breath sample, but instead reserved that factual issue to the jury. We question
the propriety of this resolution. Section 18-8004(2) mandates that a person having an alcohol
concentration of less than .08 “shall not be prosecuted for driving under the influence of
alcohol . . . .” (emphasis added). This directive indicates that the issue must be resolved by the
court upon a motion from the defendant rather than being referred to a jury. If the resolution of
any factual issues raised by a defendant’s motion to dismiss had to be referred to a jury, then the
defendant would be subjected to prosecution all the way through a jury trial instead of receiving
the protection that the statute is intended to provide, which is freedom from criminal prosecution
at all. In addition, the Section 18-8004(2) provision that “[a]ny person . . . whose test result is
determined by the court to be unreliable or inadmissible against him, may be prosecuted for
driving or being in actual physical control of a motor vehicle while under the influence of
alcohol . . .” contemplates that the trial court will make determinations of the reliability of
concentration tests. However, because Turbyfill does not assert as an issue on appeal that the
trial court erred by failing to resolve the factual issue itself, instead of allowing resolution by the
jury, we do not address it further nor attempt to determine whether any remedy would be
available at this juncture.




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       Having rejected Turbyfill’s claim of error, we affirm the district court’s order denying the
motion to dismiss the charge.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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