State v. Turner

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100714‐CA
)
v. ) FILED
) (July 12, 2012)
Randy James Turner, )
) 2012 UT App 189
Defendant and Appellant. )

‐‐‐‐‐

Third District, Salt Lake Department, 071906703
The Honorable Vernice Trease

Attorneys: Jason A. Schatz, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges McHugh, Voros, and Davis.

McHUGH, Presiding Judge:

¶1 Randy James Turner appeals from his conviction for driving under the influence
of alcohol (DUI) in violation of Utah Code section 41‐6a‐502, a third degree felony. See
Utah Code Ann. §§ 41‐6a‐502, ‐503(2) (2010). Turner argues that the breath test
procedures adopted by the Commissioner of the Department of Public Safety (the
Commissioner) pursuant to Utah Code section 41‐6a‐515(1) violate rule 702 of the Utah
Rules of Evidence. See Utah Code Ann. § 41‐6a‐515(1); Utah R. Evid. 702.1

1
Rule 702 of the Utah Rules of Evidence was amended effective December 1,
2011. See Utah R. Evid. 702, 2011 advisory committee note. However, these changes
(continued...)
Alternatively, Turner asserts that section 41‐6a‐515 is an unconstitutional infringement
on the Utah Supreme Court’s power to enact rules of evidence. See Utah Const. art.
VIII, § 4 (“The Supreme Court shall adopt rules of procedure and evidence to be used in
the courts of the state and shall by rule manage the appellate process.”). Turner also
contends that the admission of the breath test results violated his due process rights
both because the results are unreliable and because section 41‐6a‐515 unconstitutionally
shifted the burden of proof from the State to Turner. We affirm.

BACKGROUND

¶2 In June 2007, a police officer stopped Turner for making several lane changes and
a U‐turn without signaling. Suspecting that Turner was intoxicated, the officer
requested the assistance of another officer to conduct a DUI investigation. Turner
admitted to drinking “about five beers.” After administering several field sobriety tests,
the officers determined that Turner exhibited signs of impairment and arrested him.
One of the officers at the scene obtained Turner’s consent to a breath test. After
inspecting Turner’s mouth and waiting seventeen minutes, the officer used a portable
Intoxilyzer (Intoxilyzer) to test Turner’s breath alcohol concentration. The test revealed
a breath alcohol concentration of 0.170 grams, which is over twice the legal limit of 0.08
grams.2 See Utah Code Ann. § 41‐6a‐502(1). The officer did not test Turner more than
once and did not confirm the Intoxilyzer results with a contemporaneous blood test or
other alternative testing method.

¶3 Before trial, Turner filed a motion to suppress the Intoxilyzer results. Turner
argued that Utah Code section 41‐6a‐515 violates the Utah Constitution’s delegation of
power to the Utah Supreme Court to establish court rules by supplanting the
requirements of rule 702 of the Utah Rules of Evidence. See Utah Const. art. VIII, § 4.
Turner also claimed that the State’s “periodic accuracy verification process” for
Intoxilyzers, as well as its suspect‐specific testing methods, were inadequate to ensure

1
(...continued)
were intended to be “stylistic only.” See id. Accordingly, we cite the current version for
the convenience of the reader.
2
“[A]lcohol concentration in the breath” is “based upon grams of alcohol per 210
liters of breath.” Utah Code Ann. § 41‐6a‐502(2) (2010).

20100714‐CA 2
reliable test results, thereby violating Turner’s due process rights under the Utah and
United States Constitutions. The State responded by challenging each of Turner’s
positions.

¶4 At a hearing on Turner’s motion to suppress, two experts testified about the
procedures for maintaining and calibrating Intoxilyzer machines and for administering
Intoxilyzer tests. The State called a trooper (Trooper) for the Utah Highway Patrol
(highway patrol), who was a member of the Intoxilyzer and alcohol crew. The defense
presented an emeritus professor of pharmacy (Professor) from a state university.

¶5 Trooper testified that as part of his primary duties, he maintained Intoxilyzers in
several counties. He explained that this included “check[ing] each [I]ntoxilyzer every
40 days, verify[ing] that [the Intoxilyzers were] functioning properly, provid[ing] the
supplies, respond[ing] to any issues that any officers might have, troubleshoot[ing],
maintain[ing], [and] basically just check[ing to] make sure that [the Intoxilyzers were]
working properly.” To gain the skills necessary to perform his job, Trooper attended a
ten‐day course taught by the manufacturer of the Intoxilyzer and also received
additional training from his supervisors. After describing his duties and training,
Trooper testified regarding the internal diagnostic tests the Intoxilyzer automatically
conducts before each individual breath test to verify that the machine is operating
properly. He then identified the various tests he performed every forty days, as
required by rule R714‐500‐6 of the Utah Administrative Code. Specifically, he described
a series of checks he conducts to confirm that the Intoxilyzer will disallow an improper
test, including pressing the start button or breathing into the machine at the wrong
time, holding a source of alcohol next to the breath tube, and placing alcohol on his
tongue immediately before blowing into the machine. Trooper explained that
Intoxilyzers are designed to measure alcohol in the deep lung air and that these checks
ensure that the Intoxilyzer is properly disallowing tests where mouth alcohol is
detected.

¶6 Trooper also testified that the State uses a “wet bath simulator,” also known as
an external calibrator, every forty days to “check the [I]ntoxilyzer’s known internal
standards” by simulating a breath test. He explained that the wet bath simulator uses a
known ratio of water to alcohol to test the machine. If the Intoxilyzer is working
accurately, it should register a reading of 0.100 whenever that solution is used.
However, Trooper indicated that the administrative rule governing the calibration of
Intoxilyzers allows a margin of error of “plus or minus 5 percent or .005, whichever is

20100714‐CA 3
greater.” He also reported that the testing solution used as the standard to measure the
accuracy of the Intoxilyzer results is commercially produced by the manufacturer of the
wet bath simulator and then independently tested by an unaffiliated laboratory to
ensure that the water‐to‐alcohol ratio in the solution is as represented.

¶7 During direct examination, the State asked Trooper whether other states require
two or more breath tests per DUI suspect, and Trooper replied that some states do, but
that other states, like Utah, require only a single breath test. Trooper also noted that
although some states require a calibration verification, such as a wet bath simulator,
whenever a DUI suspect is tested, other states join Utah in not requiring pretest
calibration in the field. Turner did not raise any objections to Trooper’s qualifications or
his testimony.

¶8 On cross‐examination, the defense asked Trooper why the highway patrol
performed only one breath test on DUI suspects instead of performing two or more
tests to verify accuracy by means of comparison. Trooper explained that multiple tests
are unnecessary because “the sample is continuously analyzed during the test” and that
the Intoxilyzer is “sampling or testing that same [breath] sample several times a second
as it’s processing through.” In response to the defense’s further inquiry, Trooper
explained that it would “be extremely difficult to contaminate a person’s breath” and
that even belching while blowing on the Intoxilyzer would not contaminate the results.

¶9 The defense’s expert, Professor, testified that if an external calibrator, such as a
wet bath simulator, is not used at the time a DUI suspect is tested, then the procedure
“is not recognized forensically as a reliable procedure.” He explained that “testing . . .
once every 40 days to check to see if the machine is operating properly . . . doesn’t
assure that the machine’s operating [properly] at the time that the individual subject is
being tested.” Professor also testified that the majority of states require duplicate
testing of a DUI suspect’s breath and opined that duplicate results should be obtained
to guarantee accurate and reliable results.

¶10 In addition to the expert testimony, Turner presented reports from various
organizations and experts in the field regarding the best practices recommended to
ensure accurate Intoxilyzer results. The reports assert that “[b]reath alcohol
measurements should be conducted on at least duplicate independently exhaled . . .
breath samples” and that external calibration with a wet bath simulator or another type
of simulator should be performed before each test of a DUI suspect.

20100714‐CA 4
¶11 After the hearing, the trial court issued a memorandum decision and order. It
first ruled that Utah Code section 41‐6a‐515 was constitutional. Second, the trial court
considered the admissibility of the Intoxilyzer results under rule 702 of the Utah Rules
of Evidence, reasoning that Trooper’s testimony provided a threshold showing of
reliability. In making this determination, the trial court recognized that it is “not the
function of the court in [its] gatekeeper role to decide which procedure is more reliable.”
Instead, the court recognized that its proper role was to “determine only that the
[Intoxilyzer] test procedures the State utilizes, if not generally accepted by the relevant
scientific community, meet a threshold showing of reliability, are based on sufficient
data, and have been reliably applied in this case.”

¶12 After the trial court’s ruling, Turner entered a guilty plea, specifically preserving
his right to appeal the trial court’s ruling. He then filed a timely appeal challenging the
trial court’s denial of his motion to suppress the Intoxilyzer results and the subsequent
entry of his conviction and sentence.

ISSUES AND STANDARDS OF REVIEW

¶13 On appeal, Turner first contends that the trial court erred in admitting the
Intoxilyzer results under rule 702 of the Utah Rules of Evidence because the calibration
and maintenance procedures established by the Commissioner under Utah Code
section 41‐6a‐515(1) are unreliable. We review a trial court’s admission of expert
testimony “under an abuse of discretion standard,” reversing only where “the decision
exceeds the limits of reasonability.” State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794
(internal quotation marks omitted).

¶14 Alternatively, Turner argues that section 41‐6a‐515 is unconstitutional because it
infringes on the Utah Supreme Court’s authority to enact rules of evidence under article
VIII, section 4 of the Utah Constitution and because it improperly shifts the burden of
proof to the defendant. “Constitutional challenges to statutes present questions of law,
which we review for correctness.” State v. Robinson, 2011 UT 30, ¶ 7, 254 P.3d 183
(internal quotation marks omitted).

¶15 Next, Turner argues that the admission of the Intoxilyzer results violated his due
process rights because those results were not obtained in a manner that would ensure

20100714‐CA 5
their scientific accuracy and reliability. Turner also argues that section 41‐6a‐515
violated his due process rights because it unconstitutionally shifts the burden of proof
from the State to Turner. See Utah Code Ann. § 41‐6a‐515 (2010). “Constitutional
issues, including questions regarding due process, are questions of law that we review
for correctness.” Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

ANALYSIS

I. The Trial Court Did Not Exceed Its Discretion in Applying Rule 702.

¶16 Section 41‐6a‐515 provides that the Commissioner of the Department of Public
Safety “shall establish standards for the administration and interpretation of chemical
analysis of a person’s breath,” and that if those standards are met, “there is a
presumption that the test results are valid and further foundation for introduction of
the evidence is unnecessary.” See Utah Code Ann. § 41‐6a‐515. The Commissioner has
promulgated standards for the administration and interpretation of Intoxilyzer test
results by rule. See generally Utah Admin. Code R714‐500‐1 to ‐13. Turner contends that
section 41‐6a‐515 is unconstitutional because it infringes on the powers of the Utah
Supreme Court to enact rules of evidence and because it shifts the burden of proof from
the State to the Defendant. See Utah Const. art. VIII, § 4 (supreme court’s rulemaking
powers); id. art. I, § 7 (due process). Turner also asserts that the rule R714‐500 standards
do not meet the threshold level of reliability required under rule 702 of the Utah Rules
of Evidence and, therefore, the trial court violated Turner’s constitutional due process
rights by admitting the Intoxilyzer results.

¶17 In addition to its ruling that section 41‐6a‐515 is constitutional, the trial court
determined that the Intoxilyzer results were admissible because they met a threshold
showing of reliability under rule 702. In reaching that conclusion, it did not consider
the presumption of admissibility created by section 41‐6a‐515 or the fact that the
calibration, maintenance, and administration of the Intoxilyzer used to test Turner
complied with the requirements of administrative rule R714‐500 of the Utah
Administrative Code. Instead, the trial court based its decision on Trooper’s testimony
about the methods employed to ensure the reliability of the Intoxilyzer results. In
Murray City v. Hall, 663 P.2d 1314 (Utah 1983), the supreme court explained that the

20100714‐CA 6
statute then in effect relating to the admissibility of Breathalyzer3 results was designed
to avoid the “financial burden of calling as a witness in every DUI case the public officer
responsible for testing the accuracy of the [B]reathalyzer equipment.” Id. at 1320 (citing
a prior version of Utah Code Ann. § 41‐6‐44.3 (current version at id. § 41‐6a‐515 (2010))).
Here, the officer responsible for testing the accuracy of the Intoxilyzer equipment
testified, thereby eliminating the need to rely on the statutory presumption. And the
trial court did not rely on it. Thus, if the trial court acted within its discretion in
admitting the test results under rule 702, we need not reach Turner’s constitutional
challenges to section 41‐6a‐515. See, e.g., Gardner v. State, 2010 UT 46, ¶ 93, 234 P.3d 1115
(recognizing the supreme court’s “obligation to avoid addressing constitutional issues
unless required to do so” (internal quotation marks omitted)); Citizens for Responsible
Transp. v. Draper City, 2008 UT 43, ¶ 15, 190 P.3d 1245 (same); State v. Johnson, 2009 UT
App 382, ¶ 18, 224 P.3d 720 (“[C]ourts should avoid reaching constitutional issues if the
case can be decided on other grounds.” (internal quotation marks omitted)).

¶18 Rule 702 provides that an expert may testify if his specialized knowledge “will
help the trier of fact to understand the evidence or to determine a fact in issue,” see Utah
R. Evid. 702(a), and “there is a threshold showing that the principles or methods that
are underlying in the testimony [1] are reliable, [2] are based upon sufficient facts or
data, and [3] have been reliably applied to the facts,” see id. 702(b). The rule assigns trial
judges the role of “‘gatekeeper’” in an effort “to screen out unreliable expert testimony.”
Id. R. 702 advisory committee note. However, the trial court need only determine that
the testimony meets a “threshold showing” of reliability. See id. (internal quotation
marks omitted). This requirement will be satisfied if there is “a basic foundational
showing of indicia of reliability.” Id. Accordingly, it is not the court’s responsibility to
determine that the testimony is “indisputably correct.” See id. Even when opposing
experts apply different methodologies or reach contradictory conclusions, the trial court
should admit the evidence so long as the threshold showing of reliability has been
satisfied. See State v. Sheehan, 2012 UT App 62, ¶¶ 27‐28, 273 P.3d 417. “[T]he factfinder
bears the ultimate responsibility for evaluating the accuracy, reliability, and weight of
the testimony,” while the court makes the preliminary determination of admissibility.

3
Breathalyzers and Intoxilyzers are each machines used to test breath alcohol
concentration. Because they use different technologies, we distinguish between them in
this opinion. See generally State v. Relyea, 2012 UT App 55, ¶ 14 n.5.

20100714‐CA 7
See Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20,
¶ 47, 269 P.3d 980; see also Sheehan, 2012 UT App 62, ¶¶ 27‐28.

¶19 The State argues that Trooper’s testimony satisfied the threshold requirement of
reliability under rule 702, specifically noting that it was not the trial court’s
responsibility to determine which procedure was more reliable. In contrast, Turner
contends that his expert’s testimony and the evidence supporting his testimony
constitute the generally accepted standards of the “relevant expert community.”
Because that evidence advocates procedures different than those followed in Utah, he
claims that the Intoxilyzer results were unreliable and therefore inadmissible.
However, Turner’s argument would expand the role of the trial judge from the
gatekeeper to the factfinder. Where both experts’ testimony meets the threshold
requirements of rule 702, both should be admitted and the question of which is more
persuasive and reliable is left to the jury. See Gunn Hill, 2012 UT App 20, ¶ 47. We now
consider whether the trial court acted within its discretion in admitting Trooper’s
testimony on the reliability of the Intoxilyzer results.

¶20 Because Turner did not challenge Trooper’s expert qualifications, we proceed to
the question of whether the principles underlying Trooper’s testimony are reliable,
based upon sufficient facts or data, and are reliably applied to the facts of the case. See
Utah R. Evid. 702. We first clarify that Turner challenges the procedures the State
currently uses to maintain Intoxilyzers, not the reliability of Intoxilyzer results when
proper procedures are followed. Indeed, the Utah Supreme Court has recognized that
Intoxilyzer results are “universally accept[ed]” as reliable. See Hall, 663 P.2d at 1320
(citing a prior version of Utah Code Ann. § 41‐6‐44.3 (current version at id. § 41‐6a‐515
(2010))). Turner argues that the State’s maintenance procedures are deficient in that (1)
duplicate test samples are not obtained from each DUI suspect and (2) an external
calibration is not performed every time a DUI suspect is tested. Thus, we must
determine whether, despite these challenges, the trial court properly admitted the
evidence under rule 702.

¶21 First, we consider whether the principles and methods underlying Trooper’s
testimony “are reliable.” See Utah R. Evid. 702(b)(1). The Utah Supreme Court recently
determined that an expert’s testimony was considered reliable, and the expert did not
need to identify a particular methodology, where the expert testified as to his
experience dealing with similar situations and his “expertise was unchallenged.”
Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 15, 242 P.3d 762. Here,

20100714‐CA 8
Trooper testified regarding his experience maintaining Intoxilyzer machines for three
years, including calibration to ensure accurate results. He indicated that he was
personally involved in the discussions that led to the modification of the Utah
Intoxilyzer procedures, and that his primary responsibility was to test the accuracy of
Intoxilyzers. “Because [Trooper’s] expertise was unchallenged, his specialized
knowledge met the threshold showing of reliability required for the admission of his
expert testimony.” See id. (holding that a physician’s testimony regarding his
experience in dealing with situations similar to the plaintiff’s constituted a threshold
showing of reliability).

¶22 Second, we consider whether Trooper’s testimony was based on “sufficient facts
or data.” See Utah R. Evid. 702(b)(2). Trooper based his testimony on the training he
received from the manufacturer of the Intoxilyzer, his experience maintaining
Intoxilyzer machines, and his knowledge of Utah’s and other states’ Intoxilyzer
procedures. With this foundation, Trooper addressed the alleged deficiencies in the
State’s maintenance of the Intoxilyzer machines. With respect to the necessity of
obtaining duplicate breath samples, Trooper explained that multiple tests are
unnecessary because “the sample is continuously analyzed during the test” and that
“[the Intoxilyzer is] sampling or testing that same [breath] sample several times a
second as it’s processing through.” Trooper further testified that it would “be
extremely difficult to contaminate a person’s breath” and that even belching while
blowing on an Intoxilyzer would not contaminate the results. He also related that
although some states require two or more breath samples, other states, like Utah,
require only a single breath test. Likewise, Trooper explained that some states, but not
all, require that the officer in the field conduct a pretest calibration before each breath
test. According to Trooper, while other states have a variety of requirements for
calibration, Utah’s requirement that Intoxilyzer machines be calibrated every forty days
is within the range of the requirements imposed by other states, and “the majority of
other states aren’t as stringent as [Utah] on the results from the simulator solution.”
Because of Trooper’s experience maintaining Intoxilyzers, his frequent testing of the
machines to verify their calibration, and his knowledge of the procedures used in Utah
and other states, his testimony satisfies the threshold showing that it was based on
sufficient facts and data.

¶23 Third, we determine that Trooper’s testimony meets the threshold that the
scientific principles at issue were “reliably applied to the facts” of this case. See Utah R.
Evid. 702(b)(3). In doing so, we note that Turner does not challenge this prong of the

20100714‐CA 9
rule 702 test on appeal. Furthermore, the testimony showed that the State had complied
with the testing, calibration, and maintenance procedures supported by Trooper’s
testimony and certified it as working properly before and after Turner was tested.

¶24 Based on our review, we conclude that the trial court did not exceed its
discretion by finding that the testimony of Trooper satisfied each of the requirements of
rule 702. In making this determination, we do not decide that Trooper’s testimony is
correct or the most credible. Rather, Professor’s contrary testimony goes to “‘the weight
of the evidence rather than its admissibility.’” Gunn Hill Dairy Props., LLC v. Los Angeles
Dep’t of Water & Power, 2012 UT App 20, ¶ 43, 269 P.3d 980 (quoting Hemmings v.
Tidyman’s Inc., 285 F.3d 1174, 1188 (9th Cir. 2002)). It is not the trial court’s role to
choose between two competing scientific positions, particularly where neither expert’s
qualifications were challenged. Rather, if each expert opinion satisfies rule 702, both
should be admitted. Ultimately, the reliability of the Intoxilyzer results was a question
for the trier of fact to decide. Therefore, the trial court’s determination that Trooper’s
testimony met the threshold reliability requirements does not “exceed the limits of
reasonability,” State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794, and we will not disturb it.

II. Turner Has Not Indicated How the Trial Court’s Admission of the Intoxilyzer
Evidence Violated His Due Process Rights.

¶25 Next, Turner contends that the admission of the Intoxilyzer results violated his
due process rights under the Utah Constitution because the results were not obtained in
a manner that would ensure their scientific accuracy and reliability.4 See Utah Const.
art. I, § 7 (“No person shall be deprived of life, liberty or property, without due process
of law.”). Turner relies on two Utah decisions in support of his position, Layton City v.

4
Turner argues for the first time on appeal that he has a due process right to
cross‐examine the persons who selected the procedures set forth in administrative rule
R714‐500. Because Turner did not raise this argument in the trial court, it has not been
preserved for appeal. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
Furthermore, the trial court did not rely on the presumption of admissibility provided
in section 41‐6a‐515, instead reaching an independent conclusion that the Intoxilyzer
results met a threshold level of reliability under rule 702. For both of these reasons, we
do not consider this argument further.

20100714‐CA 10
Peronek, 803 P.2d 1294 (Utah Ct. App. 1990), and State v. Ramirez, 817 P.2d 774 (Utah
1991).

¶26 In Peronek, this court held that a disciplinary action based on an electronic breath
analysis violated a prisoner’s due process rights because

[n]othing in the incident report itself or in [the testifying
officer’s] testimony supported any inference that the device
used to administer the breath test was functioning properly,
or that the person administering the test had the appropriate
skills to operate the device and interpret the results, or that
the record card appended to the incident report was an
accurate reflection of the device’s readings.[5]

See 803 P.2d at 1299. Here, there is no dispute that the field officer administered
Turner’s test and that Trooper maintained the machine according to state procedures.

¶27 In Ramirez, the Utah Supreme Court discussed the due process implications of
eyewitness identification evidence. See 817 P.2d at 778‐89. In explaining that the trial
court may not “abdicate its charge as gatekeeper to carefully scrutinize proffered
evidence for constitutional defects and . . . simply admit the evidence, leaving all
questions pertinent to its reliability to the jury,” the supreme court relied on its decision
in State v. Rimmasch, 775 P.2d 388 (Utah 1989), superseded in part by rule as recognized in
State v. Sheehan, 2012 UT App 62, ¶ 20, 273 P.2d 417. See Ramirez, 817 P.2d at 778‐79. In

5
In Layton City v. Peronek, 803 P.2d 1294 (Utah Ct. App. 1990), the court cited
Triplett v. Schwendiman, 754 P.2d 87, 88 (Utah Ct. App. 1988), for the contrary
proposition that such evidence is admissible when the state provides evidence that the
Breathalyzer was operating properly shortly before the defendant’s test and the test was
conducted according to department regulations. See Peronek, 803 P.2d at 1300. The
Triplett court rejected the defendant’s argument that the state procedures were
inadequate because they did not include a requirement to test the machine both
immediately before and after the defendant’s test—commonly referred to as
bookending—because of the “universal acceptance of the reliability of [Breathalyzer]
evidence” and because when the state procedures are followed, bookending would be
redundant, expensive, and unnecessary. See 754 P.2d at 89.

20100714‐CA 11
turn, Rimmasch explains that the trial court performs its gatekeeper role when it
properly examines evidence under rule 702. See 775 P.2d at 397‐99. Here, the trial court
considered the reliability of the Intoxilyzer results based on Trooper’s testimony under
rule 702 and, thus, did not abdicate its gatekeeper role.6

¶28 Here, Turner argues that the admission of Intoxilyzer results based on the
presumption provided in section 41‐6a‐515 is unconstitutional. That case is not before
us. The trial court did not rely on the statutory presumption, instead admitting the

6
Turner cites several cases from other states in support of his interpretation of the
Utah Constitution. While we are not bound by these decisions, we note that they are
either distinguishable or supportive of the trial court’s decision. See Mack v. Cruikshank,
2 P.3d 100, 106 (Ariz. Ct. App. 1999) (holding that the State violated the defendants’ due
process rights by using an admittedly unreliable breath testing machine); Meehan v.
Kansas Dep’t of Revenue, 959 P.2d 940, 946‐47 (Kan. Ct. App. 1998) (collecting cases and
holding that “[e]xpert testimony which only purports to show that there may be
marginally more accurate tests than that mandated by the applicable statutes and
regulations is not properly admissible in this type of administrative hearing [license
revocation] either to prevent the admission of the test results at all, or to challenge the
weight to be given them”); State v. McElroy, 568 So. 2d 1016, 1016‐17 (La. 1990) (Dennis,
J., concurring) (disagreeing with the majority opinion, see 553 So. 2d 456 (La. 1989),
which approved in dicta, the admission of blood alcohol results and the pathologist’s
testimony notwithstanding the failure to comply with statutory procedures, so long as
the state did not rely on the statutory presumption of admissibility); State v. Honeyman,
560 So. 2d 825, 829 (La. 1990) (holding that blood alcohol test results, where a statutory
presumption did not apply, were properly admitted based on the testimony from the
state’s experts, despite the failure to comply with statutory procedures, because they
complied with due process and fairness); State v. Busby, 2004‐1231, pp. 4, 11 (La. App. 3
Cir. 2/2/05), 893 So. 2d 161, 163, 167 (explaining that blood alcohol tests are admissible
despite a failure to comply with statutory procedures if the State otherwise proves that
reliability satisfies due process, but holding that the State’s failure to identify the person
who drew the blood sample rendered the tests inadmissible); State v. Garthe, 678 A.2d
153, 157‐59 (N.J. 1996) (holding that Breathalyzer results taken in compliance with
statutory requirements met a “probability of trustworthiness” standard that allowed
their admission, subject to the defendant’s challenge to their reliability (internal
quotation marks omitted)).

20100714‐CA 12
Intoxilyzer evidence based on its determination that Trooper’s testimony provided it
with a threshold level of reliability. Turner fails to explain how the admission of the
evidence after a rule 702 analysis created “claimed deficiencies [that] are so serious as to
constitute a violation of due process, i.e., the program is so deficient that it fails to
‘comport with prevailing notions of fundamental fairness.’” See Layton City v. Watson,
733 P.2d 499, 500 (Utah 1987) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
While Turner provided evidence in support of his claim that the Intoxilyzer results are
unreliable, he does not address how the introduction of the results based on Trooper’s
testimony, subject to his challenge, violates his due process rights or explain why this
procedure is so deficient that it does not “comport with prevailing notions of
fundamental fairness.” Id. (internal quotation marks omitted).

¶29 “It is well established that a reviewing court will not address arguments that are
not adequately briefed.” State v. Thomas, 961 P.2d 299, 304 (Utah 1998); see also Utah R.
App. P. 24(a)(9) (outlining the requirements for the argument section of an appellate
brief). “An issue is inadequately briefed when the overall analysis of the issue is so
lacking as to shift the burden of research and argument to the reviewing court.” Smith
v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 (internal quotation marks omitted).
Turner’s failure to address the fundamental fairness of permitting the finder of fact to
resolve the conflict between the experts after the trial court determines its threshold
reliability has shifted the “burden of research and argument to” this court. See id.
Accordingly, his due process argument is inadequately briefed and we do not consider
it.7

III. We Need Not Reach the Issue of Whether Utah Code Section 41‐6a‐515
Unconstitutionally Shifts the Burden of Proof from the State to Turner.

¶30 Finally, Turner argues that Utah Code section 41‐6a‐515 unconstitutionally shifts
the burden of proof from the State to Turner. Again, Turner ignores the fact that the
trial court did not rely on the statutory presumption to admit the Intoxilyzer results.
Consequently, we need not reach this issue. See Citizens for Responsible Transp. v. Draper

7
Turner also argues that his federal due process rights were violated; however,
his briefing on this issue is similarly inadequate, and we do not consider this argument.
See State v. Thomas, 961 P.2d 299, 304 (Utah 1998); see also Utah R. App. P. 24(a)(9).

20100714‐CA 13
City, 2008 UT 43, ¶ 15, 190 P.3d 1245 (“[T]his court should avoid addressing
constitutional issues unless required to do so.” (internal quotation marks omitted)).

CONCLUSION

¶31 The trial court did not exceed its discretion in concluding that the State had
established a threshold showing of reliability of the Intoxilyzer results under rule 702(b)
of the Utah Rules of Evidence. Because the trial court did not rely on a statutory
presumption of admissibility in admitting the test results, we do not reach Turner’s
constitutional challenges to Utah Code section 41‐6a‐515.

¶32 Affirmed.

____________________________________
Carolyn B. McHugh,
Presiding Judge

‐‐‐‐‐

¶33 WE CONCUR:

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

____________________________________
James Z. Davis, Judge

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