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.

DUI Independent blood test

2002 MT 29
STATE OF MONTANA, v.
ALLEN FRANCIS MINKOFF.
Minkoffs first issue on appeal is whether the District Court erred in failing to dismiss the charge against him on grounds that his right to have an independent blood test was frustrated when the arresting officer told him a blood test would result in a higher alcohol reading than the breath test. Because we reverse on this issue, we do not reach the other issues Minkoff raises.
We hold, therefore, that the District Court erred in failing to dismiss the charge against Minkoff on grounds that his right to have an independent blood test was frustrated when the arresting officer told him a blood test would result in a higher alcohol reading than the breath test.
Reversed.

Prior conviction enhancement infirm

2002 MT 276
STATE OF MONTXNA, v.
NANETTE MAAUREEN HOWARD,
The sole issue on appeal is uhether thc Distrcct Court erred in denying
motion to dismiss the felony DUl charge.
We coneltide that the District Court's ruling that t-loxard validly waived her right to counsel was incorrect as a matter of law: bvaiver of the right to counsel must be express and must he secured before the entcring of a guilty plea. Therefore, we hold that Howard's 1997 DUL conviction was constitutionally infirm and may not serve to enhance the October 2000 DlUI conviction.
Accordingly, we reverse the District Court's holding.