I agree with the majority that the court of appeals erred in failing to review this case for an abuse of discretion. I also agree with the holding that the trial court erred in suppressing the intoxilyzer results, but I reach this conclusion for a different reason than the majority.

The majority states that the court of appeals erred in conducting a de novo review, however, the majority makes the same mistake by conducting a Rule 403 analysis. As Judge Cochran states in her concurring opinion, there are factors that develop at trial that must be considered in a Rule 403 analysis. Therefore, a pretrial hearing is not appropriate in this situation. Because the majority is essentially conducting a de novo pretrial Rule 403 analysis, I cannot join the opinion and concur only in the result.

Meyers, J.

Filed: January 12, 2005

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