
    FORT PECK TRIBES, Petitioner/Appellee, v. Llewellyn SPOTTED BIRD, Respondent/Appellant.
    No. 559.
    Fort Peck Court of Appeals.
    March 9, 2012.
    Before BRENDA DESMOND, Chief Justice, JOE RAFFIANT and GERARD M. SCHUSTER, Associate Justices.
   REVISED OPINION AND ORDER

This matter comes before the Court of Appeals on a timely made Motion for Reconsideration filed by Defendant/Appellant, Llewellyn Spotted Bird, by and through counsel, Mary L. Zemyan.

This Court issued an Opinion and Order on February 6, 2012, concluding that since the file contained no briefs by either party, the judgment of the Tribal Court finding Defendant/Appellant guilty of DUI after a bench trial on March 2, 2011, was affirmed.

On reconsideration, we find that Defendant/Appellant’s counsel had filed a Brief in Support of Appeal on December 9, 2011. This brief was not considered in the February 6, 2012 Order Affirming Judgment. No responsive brief by the Fort Peck Tribes had been filed in the matter.

The basic issue on appeal was whether the prosecution had the burden of laying a proper foundation for the admission of the results of breath alcohol concentration (BAC) testing.

Here, the officer testified as to the process used in testing the Defendant for DUI on the night of arrest. However, there was no evidence introduced as to the calibration and certification of the Preliminary Alcohol Screen Test (PAST) device used in testing. The conviction was based largely on the results of the PAST test. The officer had not observed any moving violations prior to the stop, but had made the stop due to a non-operative tail light. There had been a Horizontal Gaze Nystag-mus (HGN) test, the results of which were suggestive of intoxication.

Clearly, the burden of proof beyond a reasonable doubt [Title VI, Section 506(d) ] had not been met here. The results of the PAST should not have been used as the basis for conviction in this case.

IT IS NOW, THEREFORE, THE ORDER OF THIS COURT THAT:

Upon Motion for Reconsideration and good cause showing, IT IS THE REVISED ORDER of this Court of Appeals that Defendant’s DUI conviction be, and the same is hereby reversed.  