State v. Levanger

State v. Levanger, 2015 MT 83 (Feb. 11, 2015) (McGrath, C.J.) (5-0, aff’d)

Issue: Whether lower court abused its discretion when it denied Levanger’s motion to exclude Intoxilyzer 8000 breath test results.

Short Answer: No.

Affirmed

Facts: Levanger was arrested for DUI and transported to county jail for breathalyzer test at 8:40 a.m. Approximately five minutes into the drive, officer stopped vehicle and checked Levanger’s mouth for substances. Intoxilyzer 8000 recommends subject refrain from oral ingestion of anything 20 minutes before test. Levanger had chewing tobacco, which officer asked him to spit out. Officer then asked Levanger to open his mouth and lift his tongue, but did not physically check Levanger’s mouth.

At 9:11 a.m., Levanger’s breath sample on Intoxilyzer 8000 indicated a BAC of .126.

Procedural Posture & Holding: Levanger was convicted of DUI in justice court and appealed to district court, where he moved to exclude the breathalyzer results on the grounds they were obtained in violation of the machine’s recommendations. After hearing testimony, district court denied motion, Levanger pled guilty, reserving right to appeal the denial of his motion.

Reasoning: Lower court determined from testimony that 20 minutes passed from removal of chewing tobacco to administration of test and Levanger had no opportunity to put anything else in his mouth. For this version of Intoxilyzer, no affirmative requirement to comply with checklist, so previous cases are not applicable. No abuse of discretion.