               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41325

STATE OF IDAHO,                                 )
                                                )     2014 Opinion No. 51
       Plaintiff-Respondent,                    )
                                                )     Filed: July 3, 2014
v.                                              )
                                                )     Stephen W. Kenyon, Clerk
HEIDI H. SWENSON,                               )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael R. McLaughlin, District Judge; Hon. Kevin Swain,
       Magistrate.

       Intermediate appellate decision of the district court affirming judgment of
       conviction for misdemeanor driving under the influence, affirmed.

       Gabriel J. McCarthy, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent. Daphne J. Huang argued.
                 ________________________________________________
LANSING, Judge
       Heidi H. Swenson appeals from her conviction of misdemeanor driving under the
influence of alcohol. Swenson contends that the magistrate court erred at trial in allowing the
State, over her objection, to establish the foundation for the admission of her breath alcohol
concentration test partially through hearsay evidence. We affirm.
                                               I.
                                       BACKGROUND
       On May 11, 2012, Swenson was contacted in her vehicle by Ada County Sheriff’s
Deputies Shaver and Walls. As the deputies spoke with Swenson, they detected the odor of an
alcoholic beverage coming from the vehicle and observed that Swenson’s eyes were bloodshot.
The deputies conducted field sobriety tests and concluded that Swenson was intoxicated.
Swenson was arrested for driving under the influence, and Deputy Shaver administered a breath


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alcohol concentration (BAC) test on a portable device, the Lifeloc-FC20.            The test results
indicated breath alcohol concentrations of .191, .151, and .161.
       Swenson was charged with misdemeanor driving under the influence, Idaho Code § 18-
8004(1)(a). At trial, the State sought to lay a foundation for admission of the breath test results
by showing compliance with the Idaho State Police’s (ISP) “standard operating procedures”
(SOP) for administering a breath-alcohol test. The first to testify was Deputy Shaver, a jail
deputy who was in training to become a patrol deputy and was under the supervision of Deputy
Walls on the day in question. Shaver testified that he administered Swenson’s breath test. As to
foundation for the breath test results, Shaver said that within twenty-four hours of Swenson’s
breath tests he conducted a “performance verification” (he called it a “calibration check”) on the
Lifeloc-FC20 instrument at issue. When the prosecutor moved to admit State’s Exhibit 2, the
printout of the breath test results, defense counsel objected that there was inadequate foundation.
The magistrate court decided to conditionally admit the exhibit subject to further foundation, and
allowed Shaver to testify to the test results. After further questioning of Shaver, the prosecutor
sought unconditional admission of the exhibit, but the magistrate court adhered to its earlier
ruling. The State then called Deputy Walls, who testified that he was present and participated
equally with Shaver in all of the events at issue, but no specific further foundation for admission
of the test results was elicited from Walls.
       Jeremy Johnston, a forensic scientist with the Idaho State Police, was the State’s third and
final witness. Johnston said that he did not personally participate in the events surrounding
Swenson’s arrest, but that he had reviewed the contents of a performance verification log for the
breath testing instrument at issue.     Over a defense hearsay objection, the magistrate court
allowed Johnston to testify to the contents of the log. Johnston testified that the log showed a
performance verification was conducted on the day of Swenson’s test, using a performance
verification solution with a target value of .080. He said that he, as the alcohol discipline leader,
had certified and approved the solution.        Johnston further described how a performance
verification is properly done and said that the performance verification results in this case--.083
and .080--were “within specifications.” At the close of Johnston’s testimony, the magistrate
court held that the State had presented sufficient foundation for admission of the test results.
Defense counsel requested the opportunity to make “more of a record” on his objections and the
magistrate court’s rulings, but the court denied this request stating, “There is foundation,” and


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“it’s a simple evidentiary ruling,” and “I’m not going to hear further argument on the
admissibility of State’s 2.”    The magistrate court did not state its reason for overruling
Swenson’s hearsay objection.
       The jury returned a guilty verdict. Swenson appealed from the judgment to the district
court, and the district court affirmed. This appeal followed.
                                                II.
                                  STANDARD OF REVIEW
       When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
       The Supreme Court reviews the trial court (magistrate) record to determine
       whether there is substantial and competent evidence to support the magistrate’s
       findings of fact and whether the magistrate’s conclusions of law follow from
       those findings. If those findings are so supported and the conclusions follow
       therefrom and if the district court affirmed the magistrate’s decision, we affirm
       the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
       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); State v. Healy, 151 Idaho 734, 736, 264 P.3d
75, 77 (Ct. App. 2011).
                                               III.
                                           ANALYSIS
       Idaho Code §§ 18-8004(4) and 18-8002A(3) charge the Idaho State Police agency with
promulgating rules prescribing standards for administration of breath alcohol content tests. State
v. Besaw, 155 Idaho 134, 140, 306 P.3d 219, 225 (Ct. App. 2013); Platz v. State, 154 Idaho 960,



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964, 303 P.3d 647, 651 (Ct. App. 2013). Although the ISP has adopted administrative “Rules
Governing Alcohol Testing,” see Idaho Administrative Code (IDAPA) 11.03.01, et seq., its
standards for evidentiary testing and calibration of equipment are not presented in the body of
those administrative rules. Instead, IDAPA 11.03.01.014.03 (4/7/11) currently states: “Breath
tests shall be administered in conformity with standards established by the department.
Standards shall be developed for each type of breath testing instrument used in Idaho, and such
standards shall be issued in the form of analytical methods and standard operating procedures.”
Also, IDAPA 11.03.01.007 states: “Alcohol Testing information is available on the internet.”
The ISP posts its standard operating procedures and analytical methods 1 on its website, and it
amends these documents from time to time. See Platz, 154 Idaho at 965, 303 P.3d at 652. We
have treated those documents as “rules” for purposes of judicial review because they constitute
the only materials by which the ISP has acted upon the Idaho Code § 18-8002A(3) charge for the
ISP to “prescribe by rule” the testing methods that are approved by the ISP and because their
validity is not challenged in this case. See Besaw, 155 Idaho at 140-44, 306 P.3d at 225-29;
Platz, 154 Idaho at 965, 303 P.3d at 652; In re Hubbard, 152 Idaho 879, 881-82, 276 P.3d 751,
753-54 (Ct. App. 2012); In re Schroeder, 147 Idaho 476, 479 n.3, 210 P.3d 584, 587 n.3 (Ct.
App. 2009).
       For the admission into evidence of a breath-alcohol test, the State must establish an
adequate foundation. State v. Utz, 125 Idaho 127, 129, 867 P.2d 1001, 1003 (Ct. App. 1993);
State v. Uhlry, 121 Idaho 1020, 1022, 829 P.2d 1369, 1371 (Ct. App. 1992); State v. Bell, 115
Idaho 36, 39, 764 P.2d 113, 116 (Ct. App. 1988). Absent expert testimony explaining why any
noncompliance with one or more of the requisite ISP administrative standards and methods for
administration of the test did not affect the reliability and accuracy of the test results, compliance
with those standards is a foundational prerequisite to having the test results admitted into
evidence. Healy, 151 Idaho at 737, 264 P.3d at 78; Utz, 125 Idaho at 129, 867 P.2d at 1003;
State v. Bradley, 120 Idaho 566, 568, 817 P.2d 1090, 1092 (Ct. App. 1991); Bell, 115 Idaho at
38-40, 764 P.2d at 115-17.




1
       As far as this Court has been able to discern, “analytical methods” and “standard
operating procedures” refer to the same thing.


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       Swenson cites a number of SOP “performance verification” testing procedures specific to
the Lifeloc breath testing machine that must be followed to establish foundation for admission of
test results under the statutory method. 2 She asserts that this foundation was not laid because the
State presented the foundational information only by inadmissible hearsay through Johnston’s
testimony about the entries in the performance verification log.
       Whether a proper foundation has been laid to admit breath test results is a preliminary
question of admissibility to be decided by the trial court under Idaho Rule of Evidence 104(a),
which states, “Preliminary questions concerning . . . the admissibility of evidence shall be
determined by the court.” Utz, 125 Idaho at 129, 867 P.2d at 1003; Uhlry, 121 Idaho at 1022,
829 P.2d at 1371; Bell, 115 Idaho at 40, 764 P.2d at 117. Rule 104(a) further provides: “In
making its determination [the trial court] is not bound by the rules of evidence except those with
respect to privileges.” By terms of this rule, the magistrate court possessed discretion to consider
Johnston’s hearsay testimony in determining that foundation for admission of the breath test
results had been shown, and Swenson has not shown an abuse of that discretion.
       We caution, however, that when inadmissible evidence is allowed, even for foundational
purposes, care should be taken to ensure that a party will not be prejudiced by the jury hearing
inadmissible evidence. Idaho Rule of Evidence 103(c) directs:
              In jury cases, proceedings shall be conducted, to the extent practicable, so
       as to prevent inadmissible evidence from being suggested to the jury by any


2
        The SOP version applicable at the time of Swenson’s tests is entitled: “6.0 Idaho
Standard Operating Procedure Breath Alcohol Testing (Revision 3 Effective 4/23/12).” It states
that a performance verification is a “verification of the accuracy of the breath testing instrument
utilizing a simulator and a performance verification solution.” 6.0 Idaho Standard Operating
Procedure, Glossary (Revision 3 Effective 4/23/2012). A performance verification solution is a
“premixed ethyl alcohol solution used for field performance verifications.” Id. A performance
verification on a Lifeloc FC20 is done by attaching the solution to the instrument with a tube,
and blowing into the tube through a mouthpiece until a result is obtained. State v. Besaw, 155
Idaho 134, 141, 306 P.3d 219, 226 (Ct. App. 2013), citing Idaho LIFELOC FC20 Reference
Manual (Rev. Effective 8/20/10). Among other standards, a performance verification consists of
two samples, SOP 5.1.2 (Revision 3 Effective 4/23/2012), the verification must be performed
“within 24 hours before or after an evidentiary test,” SOP 5.1.3 (Revision 3 Effective 4/23/2012),
the simulator temperature must be between 33.5°C and 34.5°C, SOP 5.1.6 (Revision 3 Effective
4/23/2012), and the results are acceptable according to the ISP’s standards if each sample falls
within 10 percent above or below the particular solution’s target value. SOP 5.1.5 (Revision 3
Effective 4/23/2012).


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       means, such as making statements or offers of proof or asking questions in the
       hearing of the jury.

And Idaho Rule of Evidence 104(c) states:
               Hearings on the admissibility of confessions in criminal cases shall be
       conducted out of the hearing of a jury. Hearings on other preliminary matters in
       all cases shall be so conducted whenever the interests of justice require or, in
       criminal cases, whenever an accused is a witness, if the accused so requests.

       In this case, Swenson advances no allegation of trial prejudice from the prosecutor’s
unusual choice to elicit the foundational evidence from Johnston rather than from Deputy
Shaver, the officer who conducted the performance verification and testified before Johnston did.
Nor do we perceive any prejudice.         Shaver testified, albeit succinctly, that he personally
conducted the performance verification within twenty-four hours of Swenson’s tests, and he was
thus available for defense cross-examination as to the particulars of that verification process.
Indeed, the prosecutor’s unusual choice to present the foundational evidence through Johnston
provided Swenson a line of attack that she took advantage of, pointing out to the jury that
Johnston was not present during the performance verification and thus had no personal
knowledge of that to which he had testified. Under these circumstances, Swenson’s only real
complaint is that the foundation for admission of the breath test results was laid, in part, through
the wrong trial witness, and no prejudice is evident. 3
       This circumstance differs significantly from that presented in State v. Watkins, 148 Idaho
418, 224 P.3d 487 (2009). In that case, the defendant was indicted for lewd conduct with a
minor for allegedly having sexual contact with a six-year-old girl. A recently used condom and
the child’s underwear were sent to a private DNA laboratory for analysis. At trial, the State’s
DNA expert, over the defense’s hearsay objection, was allowed to testify that, according to tests
performed by an analyst at the witness’s private laboratory, the defendant’s DNA was in the
semen on the girl’s underwear and inside the condom and the girl’s DNA was on the outside of
the condom. The witness had not performed nor observed the DNA testing but instead relied on



3
        The magistrate court’s procedure here was not ideal, however. The court denied
Swenson’s request for an explanation of the court’s allowance of hearsay evidence for the
foundation. Had the court given an explanation (such as reliance on I.R.E. 104(a)), the appeal to
the district court and a further appeal to this Court might have been avoided. At a minimum, a
better record for appellate review would have existed.

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conversations with and notes prepared by her nontestifying colleague who did the testing. The
analyst who actually conducted the tests did not testify. Our Supreme Court found reversible
error in allowing the hearsay evidence to be presented to the jury. Id. at 427, 224 P.3d at 496.
Watkins is distinguishable from the present case for several reasons. First, the application of
I.R.E. 104 was not an issue in Watkins. The State did not raise that rule as a justification for its
use of any of the hearsay evidence. Second, the hearsay testimony in Watkins was not used
merely to lay a foundation to show that testing equipment was properly maintained; it was
utilized to show that any tests were performed at all, to identify the specific location on items
that were tested, to show how the items arrived at the laboratory, to show the chain of custody,
and to describe every detail of the testing procedure. As the Supreme Court stated, the hearsay
testimony was used to show “that Watkins’ semen was found on the child’s panties, and that
DNA from both Watkins and the child was found on a used condom.” Id. at 427, 224 P.3d at
494. Thus, the witness was improperly allowed to serve as a conduit for hearsay evidence
bearing directly on a critical jury issue--whether sexual contact between the defendant and the
child had occurred. Our Supreme Court cited this particular testimony in concluding that the
error was not harmless. Id. Third, in Watkins the person who actually handled the evidence and
conducted the test did not testify at all and was not available for cross-examination.
       The concerns created by the hearsay testimony in Watkins do not arise from the
foundational hearsay testimony presented in Swenson’s trial. Here, the hearsay testimony was
presented for a very narrow purpose, to show that the accuracy of the breath testing equipment
had been verified within twenty-four hours of Swenson’s breath test; it was strictly foundational
evidence for introduction of the breath test results. As noted above, this hearsay information was
not prejudicial and did not embrace an ultimate issue for the jury to decide.
       Swenson has not shown error in the trial court’s admission of hearsay testimony to lay
part of the foundation for admission of her breath test results. Therefore, the district court’s
appellate decision affirming the judgment of conviction is affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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