Friday, June 21, 2013

Besaw and Mixed Emotions

So the Court of Appeals of Idaho went and released an opinion today that at first horrified me but then I became rather uncertain of what the Court was really saying.

First, although the Court of Appeals in Idaho has no choice but to review cases, it does not have to publish an opinion.  It also doesn't have to write much.

So along comes Besaw

Besaw is a terrible opinion.  If you look at the dicta.  But the dicta is pointing in many different directions, and the holding is even weirder.

Although Besaw has exposed some troubling information about the manner in which the 
SOPs for breath testing have been developed or amended, we are not persuaded that he has 
demonstrated that the SOP procedures are incapable of yielding accurate tests. Besaw contends 
that the SOPs are so strewn with “weasel words” and “wiggle room” that they lack scientific 
basis and permit testing procedures that will not yield accurate tests, but there is no evidence in 
the record to support that conclusion. To be sure, the emails and memos to and from ISP 
personnel are disturbing, for some comments and suggestions lacked any apparent regard for the 
way proposed changes could affect the validity of the tests. As Besaw alleges, some participants 
seemed to view the ISP’s task as being to thwart all possible defense challenges to the admission 
of breath tests rather than to adopt standards that will maximize the accuracy of tests upon which 
individuals may be convicted of serious crimes and deprived of their liberty. Further, it appears 
that there was a conscious avoidance of any opportunity for suggestions or critiques from 
persons outside the law enforcement community.5
While we do not endorse or condone such an approach to the ISP’s statutorily-assigned duty to define breath testing procedures and standards, we cannot say that the emails in and of themselves, or any other evidence in the record, establishes that the test procedures actually authorized by the SOPs and applied in Besaw’s case are incapable of producing reliable tests.6 Therefore, we find no error in the magistrate court’s denial of Besaw’s motion to exclude the test results from evidence.

And mind you, this is Lansing writing, and she wrote the dissent in Wheeler that inspires us all to try to get the Court to see how bad the SOPs are.

But what is she saying?  The judges know that the ISP, in 2011, was fucked up.  They know that Jeremy Johnston is doing everything he can to make it impossible to keep breath test results from being thrown out by making them impossible to challenge, rather than more accurate.  But, in 2011, they are saying things aren't that bad yet.  And it's 2013.  And things are much worse now.

Further, the Court has now released two opinions with this footnote (in Besaw it occurs twice):

We have not, however, held that these SOPs and manuals actually constitute “rules” or 
that the ISP has “prescribed by rule” testing instruments and methods as contemplated by I.C. 
§ 18-8002A(3); that issue has never been presented to this Court.

So what does it mean?

For now, not much.  But give it a few years and the SOPs of 2013 are going to get a real grilling.

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