                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 44041

STATE OF IDAHO,                                   ) 2017 Opinion No. 36
                                                  )
       Plaintiff-Respondent,                      ) Filed: June 29, 2017
                                                  )
v.                                                ) Karel A. Lehrman, Clerk
                                                  )
WILBERT LONGHOFER,                                )
                                                  )
       Defendant-Appellant.                       )
                                                  )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Juneal C. Kerrick, District Judge.

       Order denying motion in limine and judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Wilbert Longhofer appeals from the judgment of conviction entered upon his conditional
guilty plea to operating a motor vehicle while under the influence of alcohol. Longhofer argues
the district court abused its discretion when it denied Longhofer’s motion in limine to exclude
the alcohol breathalyzer test results. Because the State’s expert laid the necessary foundation to
show the reliability of the breath-test results, we affirm the district court’s denial of the motion in
limine and judgment of conviction.
                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Longhofer was stopped by a police officer for speeding. The officer conducted field
sobriety tests and used a LifeLoc FC20 breathalyzer to conduct three breath tests. The breath
tests yielded results of .114, INF (Insufficient), and .116. The officer arrested Longhofer.



                                                  1
       The State charged Longhofer with felony operating a motor vehicle while under the
influence of alcohol, Idaho Code §§ 18-8004, 18-8005. 1            Longhofer pleaded not guilty.
Longhofer filed a motion in limine to exclude the blood alcohol concentration (BAC) results,
memorandum in support, and request for hearing, as well as two amended motions. The motion
(and the two subsequent motions) requested an order excluding the results of the BAC tests,
since the performance check on the breathalyzer did not meet the standards required by the Idaho
Breath Alcohol Standard Operation Procedure manual (SOP).
       The SOP requires breathalyzers to undergo a performance verification within twenty-four
hours before or after the breathalyzers are used for a breath test. The performance verification
requires an operator to take two samples which cannot deviate more than 10% from the target
value. In this case, the target value was .08, while the samples measured .073 and .070. A 10%
deviation from .08 meant the sample must fall between .072 and .088. The .070 sample,
therefore, fell outside the acceptable range and did not conform to the SOP. Longhofer argued
that because the SOP was not properly followed, the breath-test results should be excluded from
evidence.
       In response, the State argued that Longhofer’s motion in limine should be denied because
the State intended to call an expert witness at the hearing. The State explained its expert witness
would testify that the breathalyzer had been trending low and the results would have been to the
benefit of Longhofer. Longhofer replied that the State cannot prove the process produced an
accurate result.
       At the hearing, counsel stipulated: (1) the “blows” in the field were conducted properly;
and (2) the twenty-four-hour performance verification on the breathalyzer was not done pursuant
to the SOP. The State’s expert was an employee of the Idaho State Police and helped to calibrate
and certify all of Idaho’s new LifeLoc FC20 breath-testing instruments. The expert created the
SOP for breath-testing. The expert explained the performance verification procedure, which is
required twenty-four hours before or after a breath test and is meant to show that the calibration
is still valid and the instrument is providing reliable results. This calibration is required for the
LifeLoc FC20 breathalyzer because the breathalyzer uses fuel cell technology, which dries out
over time. The expert explained that the fuel cell becomes less responsive to alcohol as it dries

1
      The State charged Longhofer with a felony DUI because Longhofer had a prior felony
DUI conviction in 2007.
                                                 2
out, which produces results that are steadily lower than the actual BAC, but are internally
consistent with each other. When the fuel cell begins to trend low in this way, the software on
the device requires recalibration in order to accurately report the blood alcohol level. After
reviewing the performance verification log, the State’s expert concluded the breath-test readings
had been trending low in this case. The expert also concluded there was no evidence to lead him
to believe the breath-test results were elevated. As a result, the State’s expert concluded he was
confident to a reasonable degree of scientific certainty that Longhofer’s breath test measured an
alcohol content above .08.
        After the hearing, the district court issued a written order denying Longhofer’s motion in
limine. The court found the State’s expert persuasive because “any issue with the device would
cause it to produce lower, not higher readings, and would thus not prejudice Defendant.” As a
result, the court determined the expert testimony provided a sufficient basis to allow the evidence
of the breath tests to be admitted at trial.
        The State filed an amended information that alleged Longhofer was a persistent violator,
I.C. § 19-2514. Pursuant to a conditional plea agreement, Longhofer pleaded guilty to felony
operating a motor vehicle while under the influence of alcohol, and the State dismissed the
persistent violator charge. Longhofer reserved his right to appeal the district court’s denial of his
motion in limine. The district court sentenced Longhofer to a unified sentence of ten years, with
three and one-half years determinate. Longhofer timely appeals.
                                                 II.
                                     STANDARD OF REVIEW
        The decision whether to admit evidence at trial is generally within the province of the
trial court. A trial court’s determination that evidence is supported by a proper foundation is
reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct.
App. 1999). Therefore, a trial court’s determination as to the admission of evidence at trial will
only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121
Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the
lower court correctly perceived the issue as one of discretion, acted within the boundaries of such
discretion and consistently with any legal standards applicable to the specific choices before it,



                                                 3
and reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989).
                                                III.
                                           ANALYSIS
       Longhofer argues the district court abused its discretion when it denied his motion in
limine that sought to exclude the breathalyzer test results. Longhofer asserts the State did not lay
the necessary foundation to show how the breath-test results were reliable. We disagree.
       In order to admit the results of a breath test into evidence, the State must proceed in one
of two ways. See State v. Healy, 151 Idaho 734, 736-37, 264 P.3d 75, 77-78 (Ct. App. 2011).
First, the State may establish that the administrative procedures, which ensure the reliability of
that test, have been met. State v. Mazzuca, 132 Idaho 868, 869, 979 P.2d 1226, 1227 (Ct. App.
1999); State v. Utz, 125 Idaho 127, 129, 867 P.2d 1001, 1003 (Ct. App. 1993). As part of this
first option, the State can show that a state agency approved the equipment and an officer
operated the equipment and administered the test in conformity with applicable standards. Idaho
Code § 18-8004(4); State v. Nickerson, 132 Idaho 406, 411, 973 P.2d 758, 763 (Ct. App. 1999).
Second, even without fulfilling the administrative procedures, the State may still make the test
results admissible if it calls an expert witness to establish the reliability of the test. State v.
Charan, 132 Idaho 341, 343, 971 P.2d 1165, 1167 (Ct. App. 1998).
       Here, both parties agree the State did not comply with the administrative procedures
when it executed the breath test. Because it is uncontroverted that the State did not comply with
the administrative procedures, the admissibility of evidence in this case depends upon whether
the State’s expert witness properly established the reliability of the breath test. Longhofer argues
the State did not lay the necessary foundation to show how the breath-test results were accurate,
and thus failed to meet the requisite standard for admissibility. We disagree.
       In accordance with several legislative developments, the Idaho Supreme Court has
established that, when analyzing an alcohol test, we focus on whether a defendant is above the
legal limit of .08, rather than the exact alcohol concentration within the blood. See Elias-Cruz v.
Idaho Dep’t of Transp., 153 Idaho 200, 203, 280 P.3d 703, 706 (2012). In 1970, the Idaho Code
created a presumption of intoxication if a driver’s BAC exceeded the legal limit. See I.C. § 49-
1102 (1970). In 1984, the statute was repealed and codified as I.C. § 18-8004, so that test results
no longer created a presumption of intoxication, but could be used to establish a per se violation.

                                                 4
Elias-Cruz, 153 Idaho at 203, 280 P.3d at 706. A 1987 amendment removed the requirement of
showing the amount, by weight, of alcohol in the blood. See 1987 Idaho Sess. Laws, ch. 122, §
2, pp.247-50. A violation can instead be established through the results from an approved blood,
breath, or urine test. Id. The Supreme Court provided the following explanation to summarize
the recent legislative history:
                After the 1987 amendment, a violation can be shown simply by the results
        of a test for alcohol concentration that complies with the statutory requirements.
        With that change, the margin of error in the testing equipment is irrelevant. The
        equipment need not precisely measure the alcohol concentration in the person’s
        blood. The test need only be based upon the correct formula, and the equipment
        must be properly approved and certified.
Elias-Cruz, 153 Idaho at 204, 280 P.3d at 707. The Court acknowledged it does not require the
State to establish the precise amount of alcohol in the driver’s blood at the time of driving, even
if the alcohol concentration at the time of driving could be lower than at the time of testing. Id.
at 205, 280 P.3d at 708. The Court in Elias-Cruz further explained the current standard as
follows:
        The issue is not the alcohol concentration in the blood. It is the alcohol
        concentration as shown by the test results. There is nothing to which to compare
        the test results. All that is required is that the test results show that the alcohol
        concentration was above the legal limit.
Id. at 206, 280 P.3d at 709.
        More recently, the Supreme Court affirmed the holding in Elias-Cruz that the proper
standard is no longer the concentration of alcohol in the driver’s blood. State v. Jones, 160 Idaho
449, 451, 375 P.3d 279, 281 (2016). This Court also recognized Elias-Cruz as controlling
precedent.   State v. Tomlinson, 159 Idaho 112, 121, 357 P.3d 238, 247 (Ct. App. 2015).
However, in Tomlinson we issued an additional explanation that the Elias-Cruz holding does not
prevent a defendant from challenging the accuracy or reliability of the specific machine or test
results. Id. As such, Longhofer properly challenges the reliability of the breathalyzer in this
case, but the State is not required to show exactly the alcohol concentration in Longhofer’s blood
in order to admit the evidence of the test results. Instead, the State must show that the test results
reliably demonstrate that Longhofer’s BAC was .08 or more.
        We find the Supreme Court’s analysis in Elias-Cruz is controlling in this case. However,
we acknowledge the issue in Elias-Cruz was distinct from the issue here. The question in Elias-
Cruz was whether a testing machine’s margin of error was relevant to determine if the

                                                  5
defendant’s BAC exceeded the legal limit. Elias-Cruz, 153 Idaho at 206-07, 280 P.3d at 709-10.
In contrast, Longhofer does not challenge the breathalyzer’s margin of error. Nonetheless, the
Court in Elias-Cruz does not specify that its holding should be limited to the question of margin
of error. The holding instead described the legislative history and judicial trends in analyzing
alcohol concentration testing, after which the Court decided breath-test results are analyzed
according to the legal limit rather than the actual BAC of the driver. We therefore find the
holding in Elias-Cruz is controlling in this case.
       On appeal, Longhofer argues the breathalyzer was underreporting, and thus the breath
test was inaccurate. Furthermore, Longhofer argues the State’s expert failed to testify why the
procedural defects did not affect the reliability of the test results. Using Jones and Elias-Cruz,
Longhofer contends the actual alcohol concentration is irrelevant. Longhofer concluded: “[The
State’s expert]’s testimony on Mr. Longhofer’s actual alcohol concentration was not relevant to
why the procedural defects did not affect the reliability of the test results.”
       We disagree with Longhofer’s argument. Longhofer correctly cites Elias-Cruz for the
rule that the actual alcohol concentration within the driver’s blood is irrelevant. However,
missing from Longhofer’s analysis is how the State’s expert must still testify that the breath-test
results can be relied upon to show that Longhofer’s BAC was above the legal limit.
       Here, it is first helpful to define and apply the following terms: consistent, reliable, and
accurate.   “Consistent” is defined as “marked by harmony, regularity, or steady continuity
throughout: showing no significant change, unevenness, or contradiction.” WEBSTER’S THIRD
NEW INT’L DICT. 484 (3d ed. 1993).          “Reliable” is defined as “giving the same result on
successive trials.” WEBSTER’S THIRD NEW INT’L DICT. 1917 (3d ed. 1993). Finally, “accurate”
is defined as “in exact conformity to truth or to some standard.” WEBSTER’S THIRD NEW INT’L
DICT. 14 (3d ed. 1993).       Although similar in meaning and usage, the three terms are not
synonyms. A perfect breathalyzer test would give results that are consistent, reliable, and
accurate, so as to indicate the instrument provides regular and predictable results that would be
the same on multiple tests, and precisely reflect the exact amount of alcohol within a driver’s
blood. However, Idaho courts have historically recognized that, at trial, parties have difficulty
proving the extent to which a driver’s “actual” BAC while driving was above or below the
reading on a breathalyzer. See Jones, 160 Idaho at 451, 375 P.3d at 281; Tomlinson, 159 Idaho
at 121-22, 357 P.3d at 247-48; State v. Roach, 157 Idaho 551, 555-56, 337 P.3d 1280, 1284-85

                                                     6
(Ct. App. 2014). As a result, Idaho does not require the State to prove the exact amount of
alcohol within a driver’s blood or that test results reflect the precise concentration of alcohol in
the blood. See Elias-Cruz, 153 Idaho at 205, 280 P.3d at 708. Elias-Cruz made clear that the
actual concentration in the blood is not the issue when analyzing breath-test results. Elias-Cruz,
153 Idaho at 206, 280 P.3d at 709. Similarly, Healy analyzed the expert testimony only as to the
reliability of the breath test, and not the accuracy. Healy, 151 Idaho at 736, 264 P.3d at 77.
       Here, the State’s expert established that the breath-test results were consistent. The
State’s expert explained that as the fuel cell ages, it underreports the BAC. However, the expert
explained that the underreporting is consistent, so that the aging fuel cell still shows consistent
results. The instrument, therefore, provided results that were internally consistent. Upon review
of the logs, the State’s expert concluded the breath-test instrument in this case was
underreporting as expected from an aging fuel cell, but that this reporting was consistent.
       Additionally, the State’s expert established the reliability of the breath test administered
to Longhofer. The question of reliability does not focus on whether the test measures the exact
concentration of alcohol in the driver’s blood.        Instead, based on the reliability standard
articulated in Elias-Cruz, the test results only need to show the test results accurately measured
Longhofer’s BAC as above the legal limit. Elias-Cruz, 153 Idaho at 206, 280 P.3d at 709. In
this case, the expert testified to a reasonable degree of scientific certainty that Longhofer’s BAC
was above .08; as such, the State established the admissibility of the test results.
       In sum, the State’s expert in this case explained the test results in Longhofer’s case were
internally consistent and reliably measured Longhofer’s BAC as greater than .08. The expert did
not opine about the precise concentration level of alcohol in Longhofer’s blood besides that the
level was greater than .08. The expert also did not testify the degree to which the breathalyzer
was underreporting or calculate the precise amount of alcohol in Longhofer’s blood when he was
driving. Instead, the State’s expert issued the following conclusion: “All of the evidence shows
that the instrument appears to be underreporting and definitely not overreporting. So those
results given in the field, that they’re definitely not overreported.” The expert agreed that, in his
expert opinion, he was confident to a reasonable degree of scientific certainty that the breath
measured was above the legal limit of .08. Because the State’s expert explained how the test
reliably measured Longhofer’s BAC as above the legal limit, the State provided sufficient
foundation to admit the evidence of the breath-test results. Furthermore, because the State’s

                                                  7
expert issued his conclusions relative to the legal limit and not an actual concentration of alcohol,
we determine the testimony satisfied Elias-Cruz and sufficiently accounted for the procedural
defects.
                                                IV.
                                         CONCLUSION
       Because the State’s expert demonstrated the breath-test results were reliable, we affirm
the district court’s denial of the motion in limine and judgment of conviction.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




                                                 8
