State v. Stump

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 34515

STATE OF IDAHO, ) 2009 Opinion No. 5
)
Plaintiff-Respondent, ) Filed: January 22, 2009
)
v. ) Stephen W. Kenyon, Clerk
)
GREGORY STUMP, )
)
Defendant-Appellant. )
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Teton County. Hon. Jon J. Shindurling, District Judge. Hon. Colin W. Luke,
Magistrate Judge.

Order of the district court affirming the magistrate’s denial of the defendant’s
motion to exclude evidence of breath test, affirmed.

Ronald L. Swafford, Swafford Law Office, Chartered, Idaho Falls, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy
Attorney General, Boise, for respondent.
______________________________________________
GRATTON, Judge
The issue presented on this appeal is whether the prosecution presented a sufficient
foundation for the admission of breath test results by showing that the officer adequately
performed the required fifteen-minute monitoring of the defendant before administering the test.
The magistrate denied Stump’s motion to exclude evidence of the breath test and, on
intermediate appeal, the district court affirmed. We affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
Teton County Sergeant Jared Hurt arrested Gregory Stump on suspicion of driving under
the influence, I.C. § 18-8004, and transported him to the Teton County Sheriff’s Office to test his
breath alcohol level using an Intoxilyzer 5000. Upon arrival, Officer Hurt seated a handcuffed
Stump approximately two feet from the Intoxilyzer 5000. Stump was advised to tell officer Hurt
if Stump belched or vomited. Officer Hurt then walked eight to ten feet to the position from

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which he observed Stump. Officer Hurt positioned himself behind a partition which had a
writing surface on top. Officer Hurt stood behind the partition, facing Stump. Officer Hurt filled
out some paperwork on the writing surface atop the partition while facing Stump. Officer Hurt
stood next to Stump while reading the DUI Advisory Form to him. Given Stump’s seated
proximity to the Intoxilyzer 5000, Office Hurt kept Stump in view, by not turning his back, while
preparing the Intoxilyzer 5000 for the test.
Stump filed a motion in limine seeking to exclude evidence of the breath test on the
ground that the prosecution could not establish foundation for its admission because (1) Officer
Hurt did not observe Stump for a full fifteen-minute period prior to administration of the test,
and (2) Officer Hurt failed to adequately observe Stump for the required fifteen-minute period
prior to the administration of the test. After conducting a hearing, the magistrate denied the
motion. Stump then entered a conditional guilty plea, reserving the right to appeal the
magistrate’s denial of his motion in limine. Stump appealed to the district court, which affirmed
the magistrate’s decision. This appeal followed.
II.
ANALYSIS
On review of a decision of the district court, rendered in its appellate capacity, we
examine the record of the trial court independently of, but with due regard for, the district court’s
intermediate appellate decision. State v. Ward, 135 Idaho 400, 402, 17 P.3d 901, 903 (Ct. App.
2001). The issue presented is whether the officer’s actions constitute compliance with
foundational prerequisites set out in the operator’s manual for the Intoxilyzer 5000. This is a
question of law over which we exercise free review. State v. Remsburg, 126 Idaho 338, 339, 882
P.2d 993, 994 (Ct. App. 1994); State v. Bradley, 120 Idaho 566, 568, 817 P.2d 1090, 1092 (Ct.
App. 1991).
Pursuant to I.C. § 18-8004(4), the Idaho State Police (I.S.P.) are charged with
promulgating standards for administering tests for breath alcohol content. The statute provides
that when it is shown that the breath test was administered by a method approved by the I.S.P.,
the results are admissible without the necessity of further evidence to establish the reliability of
the testing procedure. The I.S.P. has approved the Intoxilyzer 5000 as a method of determining
breath alcohol content and has set out in an operator’s training manual for that machine the
approved methodology for administering the test. The pertinent portion of the manual instructs:

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Observe the subject for 15 minutes. During this time, the subject may not
smoke, consume alcohol, belch, vomit, use chewing tobacco, or have any other
substance in the mouth. If belching or vomiting does occur or something is found
in the mouth, wait an additional 15 minutes.

Stump contends that the magistrate court erred in finding that the officer complied with
the observation period. We disagree.
Stump first contends that the magistrate court erred in finding that Officer Hurt’s
observation of Stump lasted at least fifteen minutes prior to the administration of the test. Stump
argues that the prosecution was unable to prove that the fifteen-minute observation period took
place prior to the administration of the test because of the disparity among various time records
made the night of Stump’s arrest. Whether the observation period lasted a full fifteen minutes is
a question of fact. The magistrate found that, per the officer’s testimony, the observation period
began at 00:15 and that the test was not administered until at least fifteen minutes after that time.
On review of a decision of the district court, rendered in its appellate capacity, we review the
decision of the district court directly. State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct.
App. 2008). We examine the 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. Id. 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. Id.
The report from the Intoxilyzer 5000 reflects that Officer Hurt began the fifteen-minute
observation period at 00:15. Officer Hurt testified that the report was accurate and that 00:15
was the time he began the fifteen-minute observation period. Officer Hurt recalled, independent
of the report, that he observed Stump for at least fifteen minutes. Officer Hurt testified that the
Intoxilyzer 5000 clock was accurate. The report from the Intoxilyzer 5000 reflects that the
administration of the first test began at 00:34. Stump presented evidence that the dispatch
record, and the incident report which is based on information from the dispatch record, report
Officer Hurt arriving at the office at about 00:29, approximately fourteen minutes after the
Intoxilyzer 5000 reports reflects that the observation period commenced. In explanation for this
discrepancy, Officer Hurt cited the inaccurate work of the specific dispatcher involved in the
preparation of the dispatch record at issue. Officer Hurt also testified that dispatch record

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accuracy was dependent on the training, experience and recording habits of dispatchers. He
stated that inaccurate dispatch records were a “continual problem.”
After the magistrate denied the motion in limine, Stump filed a motion to re-open the
evidentiary hearing to present evidence from the tow truck driver called to tow Stump’s vehicle.
Rather than pursue this motion before the magistrate, Stump and the prosecutor stipulated to
supplement the evidentiary record with an affidavit and attachment from the tow truck driver
showing his recordation of 00:30 being the time Officer Hurt released Stump’s automobile to the
tow truck driver at the scene. This evidence would place Officer Hurt on the scene of the
accident four minutes before the administration of the first test, which is inconsistent with both
the dispatch record, the Intoxilyzer 5000 report and the testimony of Officer Hurt. The district
court, although sitting in its appellate capacity appears to have noted this evidence, mentioning,
specifically, the “truck driver” and the “various” time records made the night of Stump’s arrest.
The district court held that substantial evidence supported the magistrate’s finding that the
fifteen-minute waiting period occurred. We too hold that although there may be conflicting
evidence, substantial and competent evidence in the record supports the magistrate’s finding that
Officer Hurt’s observation of Stump lasted at least fifteen minutes prior to the administration of
the test. However, we note that the proper procedure would have been for the magistrate to first
consider the tow truck driver evidence. The magistrate was the finder of fact. By stipulating that
the evidence “may be considered, weighed, and reviewed by appellate courts,” the parties
attempted to improperly place the appellate courts in the position of the finder of fact. We
strongly disavow such a practice as appellate courts will not weigh evidence or review a record
not properly placed before the trial court. Marshall v. Blair, 130 Idaho 684, 686, 946 P.2d 984,
986 (Ct. App. 1996). Therefore, a motion or stipulation to supplement the evidence must be
addressed to the finder of fact and, if allowed, considered and weighed by the finder of fact, not
the appellate courts.
Stump next contends that the magistrate court erred in finding that Officer Hurt
adequately observed Stump during the fifteen-minute period of monitoring prior to the
administration of the test. In State v. Carson, 133 Idaho 451, 453, 988 P.2d 225, 227 (Ct. App.
1999), this Court noted that the observation period is required in order to rule out the possibility
that alcohol or other substances have been introduced into the subject’s mouth from the outside
or by belching or regurgitation. The level of surveillance must be such as could reasonably be

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expected to accomplish the purpose of the requirement. In Remsburg, 126 Idaho at 340-41, 882
P.2d at 995-96 this Court held that, in light of the purposes of the requirement, “observation” can
include not only visual observation but use of other senses as well. So long as the officer is
continually in position to use all of his senses, not just sight, to determine that the defendant did
not belch, burp or vomit during the observation period, the observation complies with the
training manual instructions. In this regard, the officer need not “stare fixedly” at the subject for
the entire observation period. In State v. DeFranco, 143 Idaho 335, 338, 144 P.3d 40, 43 (Ct.
App. 2006), this Court noted that the fifteen-minute monitoring period is not an onerous burden
and that “[t]his foundational standard ordinarily will be met if the officer stays in close physical
proximity to the test subject so that the officer’s senses of sight, smell and hearing can be
employed.”
Officer Hurt was, at all times, within eight to ten feet of Stump and never left the room.
There is no evidence in the record of any circumstance or condition inside the room which might
have interfered with or impaired Officer Hurt’s senses. Officer Hurt turned his back on Stump
only so long as it took to walk eight to ten feet to the place of observation behind the partition.
Officer Hurt observed Stump over the partition. Stump was within Officer Hurt’s direct or
peripheral vision at all times, including while filling out paperwork and preparing the Intoxilyzer
5000 for administration of the test. Although advised to do so, Stump did not tell Officer Hurt
that he had belched or regurgitated. Officer Stump testified that at no time did he see, hear or
smell a belch or vomit and that he observed Stump to the best of his ability during the monitoring
period. Because Officer Hurt was continually in position to use all of his senses to determine
that Stump did not belch, burp or vomit during the observation period, the observation complied
with the training manual instructions and the foundational standard was met.
III.
CONCLUSION
We conclude that the officer in the instant case complied with the mandatory observation
period. Accordingly, we affirm the opinion and order of the district court affirming the
magistrate’s denial of the defendant’s motion to exclude evidence of the breath test.
Chief Judge LANSING and Judge PERRY, CONCUR.

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