annual laboratory certification document

DA 07-0759
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 26
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CAROL F. WHITE,
The dispositive issue on appeal is whether the District Court abused its discretion in
admitting the results of the breath analysis over White’s objection that the prosecution did
not lay a proper foundation for the evidence.
While there may be few instances in which the State laboratory certification of a
breath analysis instrument is an issue at trial after the required notice is given, the requirements of M. R. Evid. 803(6) are specific and clear. The notice requirement of the Rule is self-executing; it is a mandatory duty of the prosecution that does not depend upon a pretrial motion, demand, or objection by the defendant.
The notice required by 803(6) in time to obtain depositions or subpoena the report’s author for trial. When the prosecution offered the State laboratory report into evidence at trial, White made a timely and appropriate foundation objection that was overruled by the District Court. This was error and neither the evidence of the annual testing nor the results of the breath test should have been admitted.
Reversed and remanded for a new trial.