438 SO2D 1105 - State v. Tanner

PER CURIAM.

¶1A pretrial hearing was held on defendant’s motion to suppress results from an auto-intoximeter breath test. The state did not object to the hearing. The trial judge found that1 the Louisiana Department of Public Safety Regulations setting forth the guidelines to insure the accuracy of the auto-intoximeter’s test results were not in accordance with the applicable jurisprudence of the state of Louisiana. Cf. State v. Goetz, 374 So.2d 1219 (La., 1979). Specifically, according to the trial court, the state failed “... to bear affirmative and detailed proof that the known alcohol standard used to calibrate the auto-intoximeter was pure *1106and unadulterated ...” (Tr. 22-23). When the ruling was appealed to the Court of Appeal, Third Circuit, that court did not address the issue decided by the trial court, but reversed on other grounds and remanded to the trial court. Accordingly, the writ is granted with the following order:

¶2IT IS ORDERED that the opinion and order of the Court of Appeal, dated May 25, 1983, 432 So.2d 1186, be set aside insofar as it remands the case to the trial court. It is further ordered that this case be remanded to the Court of Appeal, Third Circuit, with direction to specifically address and decide the issue upon which the motion to suppress was granted by the trial court.

LEMMON, J., concurs and assigns reasons.

¶3. In some instances, the admissibility of the evidence must be challenged by a pretrial motion to suppress, in the sense that failure to file a pretrial motion precludes the defendant from raising the issue at trial. State v. Kimbrough, 432 So.2d 833 (La.1980); La.C.Cr.P. Art. 703 F.

LEMMON, Justice,

¶4concurring.

¶5I concur in remanding the matter to the court of appeal to address the merits of the issue raised by the state’s application for supervisory writs.

¶6La.C.Cr.P. Art. 703 requires the trial court, on defendant’s timely motion alleging adequate facts, to conduct a pretrial hearing on the admissibility of evidence which allegedly was unconstitutionally obtained.1 However, under La.C.Cr.P. Art. 3, the trial court has the discretion to conduct, on motion of either side establishing good cause therefor, a pretrial hearing on the admissibility of any evidence.2 See State v. Boettcher, 338 So.2d 1356 (La.1976); State v. Eros Cinema, 262 La. 706, 264 So.2d 615 (1972); State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972).

¶7. Such a procedure is highly advantageous to the state, because the district attorney, in the event of an adverse ruling, can then seek appellate review of a decision (as the present one) which excludes evidence. The state usually faces great practical difficulty in seeking review of evidence excluded during trial.