In Interest of Oaks

571 P.2d 1364, 1977 Utah LEXIS 1301

• Court: Utah Supreme Court
• Decided: November 14, 1977
• Docket: 14896
• Status: Published

Opinions

ELLETT, Chief Justice:

In the Juvenile Court defendant was convicted of driving a motor vehicle while under the influence of intoxicating liquor (Section 41-6-44, U.C.A.1953).¹ He now appeals.

The arresting officer first noticed defendant driving a vehicle shortly before midnight at an apparently high rate of speed. The officer pursued defendant for a distance until he could no longer see him. Later he observed a vehicle, parked at the side of the road, that was the same automobile he had previously seen. Upon contacting defendant, the officer noted the odor of an alcoholic beverage on his breath. According to the officer, defendant’s face was flushed, his eyes were “kinda” bloodshot, and his speech was not good.

Defendant was arrested and given a field sobriety test. Again, according to the officer, defendant did poorly when directed to touch his nose with his finger and when he walked the white line. Defendant was taken to the police station in Vernal, Utah, where the arresting officer gave him a breathalyzer test.

The foregoing facts were adduced at the trial. The state then proceeded to question Officer Horton concerning the manner in which he administered the breathalyzer test and to lay a foundation for the introduction into evidence of Exhibits 1 and 2. (Exhibit 1 concerned the administration of the test, and Exhibit 2 indicated the results of the test.)

Defense counsel did not object to any evidence concerning the result of the test; but in his brief on appeal, appellant claims error in that the officer had failed to fill in the blanks on Exhibit 1, identifying by number the machine and ampoule used in the test. A Highway Patrol officer was called as a witness. Defense counsel stipulated that he was qualified to repair and analyze breathalyzer machines. The sergeant testified that a certain machine had been located in the Vernal station over the years; however, he did not know if the machine was there on March 24, 1976. He testified that he had checked machine # 2979 on March 4 and May 25, 1976, and found it to be working properly both times. To his knowledge, there was no other machine located in the Vernal station during the aforementioned dates. The court admitted the exhibits into evidence. Exhibit 2 indicated a blood alcohol content of .11 percent.²

Aside from the breathalyzer test, the evidence before the court was sufficient to justify the verdict. Such evidence was as follows:

(1) The attention of the officer was directed to the appellant because of the excessive speed at which appellant was driving.

(2) The face of appellant was flushed, his eyes were bloodshot, and his speech was poor.

(3) Appellant was unable to perform the field sobriety tests; to-wit: he could not walk a straight line, pick up coins, or touch his nose with his finger without difficulty.

(4) Two officers testified that appellant had been drinking.

The smoke screen about the breathalyzer machine is without validity. The machine was the only one used in the area, and it made no difference whether the technician recorded its number on the test card or did not so record it. Also the fact that the machine was accurate on March 4 and on May 25 leads to the fair conclusion that it was accurate on March 24. A qualified technician can administer a test and then testify to his findings. The omission of the number of the machine or of the ampoule on the test card would not make the testimony of the expert incompetent. This would be true even if the ampoule were lost or destroyed. Further, as to the number of the ampoule not being on the test card, the matter was not raised at trial and, therefore, cannot be claimed as an error on this appeal.³ In fact, when the tests were offered into evidence, counsel for Mr. Oaks asked the court to withhold the ruling until after the cross-examination of the witness. At the end of all the testimony, defense counsel moved to dismiss “on the grounds that the state failed to make a _no evidence.” The court’s reply was as follows:

THE COURT: When the Court considers the total evidence, that you add to it the appearance of the young man at the time and physical tests, coupled with the tests which, by the way, I received in evidence.

MR. MCRAE: Did you also receive the report and referral?

THE COURT: Yes. Motion denied.

MR. MCRAE: And what is the finding of the Court?

THE COURT: Found guilty.

There was never any objection made at trial to the result shown by the tests; hence, there cannot be any question of error in that regard raised on this appeal.⁴

The judgment is affirmed. No costs are awarded.

CROCKETT, and HALL, JJ., concur.

1 . Sec. 55-10-105(2) provides that an adjudication by a juvenile court shall not be deemed a conviction of a crimé, except in cases involving traffic violations.

2 . U.C.A., 1953, 41-6-44.2. This section makes it unlawful to drive a motor vehicle when the alcoholic content by body weight is .10% or greater.

3 . Hamilton, et al. v. Salt Lake County Sewerage, etc., 15 Utah 2d 216, 390 P.2d 235 (1964).

4 . id.