PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Madison Circuit Court, CC-91-0003, Court of Criminal Appeals, CR-92-234). Charles Lynwood Smith, Jr., Madison Circuit Court, TRIAL JUDGE.
Rehearing Denied December 16, 1994. Released for Publication March 25, 1995.
Almon, Hornsby, C. J., and Shores, Houston, Steagall, Kennedy, Ingram, and Cook, JJ., concur. Maddox, J., concurs in the result.
The opinion of the court was delivered by: Almon
Marvin Mayo was convicted in the Madison Municipal Court of driving under the influence of alcohol. Upon his appeal to the circuit court for a trial de novo, he filed a motion to suppress the results of a breath test that was administered to him. The circuit court held two hearings on the motion, with testimony presented by the officer who administered the test, the officer who inspected the machine on which Mayo was tested, an expert on behalf of Mayo, the director of the Department of Forensic Sciences (DFS), and the deputy director of DFS, who is the technical director of the blood alcohol testing program. After hearing this evidence, the circuit court denied the motion. Mayo then pleaded guilty, reserving the right to raise on appeal the denial of his motion to suppress. The Court of Criminal Appeals affirmed with an unpublished memorandum. ___ So. 2d ___ (table).
Mayo states three issues that he alleges to be of first impression. The first concerns the adequacy of DFS's breath testing rules. He asserts that the Court of Criminal Appeals erred in holding that the administrative rules promulgated by the Alabama State Board of Health and now applied by DFS are sufficient written guidelines for the administration of the breath testing program in the State of Alabama. He continues:
"For the first time the Appellate Courts of Alabama are being asked to look at the breath testing program and its 'rules' to judicially determine if the program is set up in a way to reasonably ensure that a given breath test result is an accurate and reliable reflection of the amount of alcohol in that tested individual's system."
There are two components of this issue: One, whether the methods for inspecting the machines should be set forth in published rules, and two, whether the methods adopted for testing individuals give a sufficient guarantee of accuracy and reliability to support admission of the test results.
The second issue is whether DFS has improperly continued to apply the rules promulgated by the Board of Health or has improperly amended them without complying with the Administrative Procedure Act. The third issue is whether, assuming that the breath test is not admissible pursuant to a statute, a sufficient predicate was laid for the admission of the breath test.
Code 1975, § 32-5A-194(a), provides for the admission of evidence of chemical tests:
"Upon the trial of any ... criminal ... action ... arising out of acts alleged to have been committed by any person while driving ... a vehicle while under the influence of alcohol ..., evidence of the amount of alcohol ... in a person's blood at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath or other bodily substance, shall be admissible. Where such a chemical test is made the following provisions shall apply:
"(1) Chemical analyses of the person's ... breath ... to be considered valid under the provisions of this section shall have been performed according to methods approved by the department of forensic sciences and by an individual possessing a valid permit issued by the department of forensic sciences for this purpose. The court trying the case may take judicial notice of the methods approved by the department of forensic sciences. The department of forensic sciences is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department of forensic sciences. The department of forensic sciences shall not approve the permit required in this section for making tests for any law enforcement officer other than a member of the state highway patrol, a sheriff or his deputies, a city policeman or laboratory personnel employed by the department of forensic sciences."
(Emphasis added.) Act No. 88-660, Ala. Acts 1988, transferred these responsibilities to DFS from the Board of Health simply by amending this section to read "the department of forensic sciences" everywhere it had formerly read "the state board of health." *fn1 Section 2 of that Act, now codified at § 32-5A-194.1, also preserved the rules promulgated by the state Board of Health "until rescinded, modified or adopted" by DFS.
The only existing rules for breath testing were promulgated by the Board of Health in 1982 and were amended in 1982, 1984, and 1987. They have not been amended by DFS; indeed, they are still in the Alabama Administrative Code in the chapter for rules of the State Board of Health/the Department of Public Health. The breath testing rules are a single page long. Rule 1 states that an applicant for a testing permit "must have satisfactorily completed the course in the theory and operational procedures of the breath testing instrument and be a full-time employee for one of the agencies listed in Section 32-5A-194." Rule 2 regards permits: 2(a) provides that the permits will be "issued by the State Health Officer and certified by the Technical Director," 2(b) provides for expiration of permits, and 2(c) requires continuing education each year. Rule 3 is entitled "Methods Approved by the State Board of Health," and it reads:
"(a) There shall be a periodic inspection of each breath testing instrument. The inspection shall be conducted at reasonable time intervals set by the State Health Officer through the Technical Director.
"(b) Approval of Instrumentation.
"1. Intoxilyzer 5000. The approved procedure, technique or method of operation appears on the Intoxilyzer 5000 Operational Procedure Card."
(Emphasis added.) Rule 4 reads simply "Appendix."
Appended to the rules is a page with the heading "Intoxilyzer 5000 Operational Procedure," a form with blanks to be filled and steps to be marked as completed. It gives the following seven steps: "Attach Mouthpiece, Press Start Button, Insert Test Record, Subject Blows Sample, Time Sample Collected _____, Remove Test Record, [and] Results ____." It includes a space marked "test record," where the printout from the machine can be attached. The form on which Mayo's breath test was recorded is substantially like this appendix, with two changes: It adds the statement "WARNING: Subject must be under observation by the arresting officer and/or operator for a period of twenty minutes before the test is administered," and it adds an eighth step, "Remove mouthpiece."
In Patton v. City of Decatur, 337 So. 2d 321 (Ala. 1976), this Court reversed a judgment of the Court of Criminal Appeals affirming a conviction of driving while intoxicated. This Court applied the predecessor of § 32-5A-194, *fn2 emphasizing the language stating that a chemical analysis "shall have been performed according to methods approved by the state board of health," 337 So. 2d at 322. The Court held that proof of these methods is part of the predicate for admission of the test results. The Court concluded:
"Nowhere is it shown that duly adopted methods or regulations of the State Board of Health were followed in administering the test. The trial court therefore had before it no certified methods promulgated by the Board of Health for the administration of the test and consequently was ...