STATE v. CARDENAS-MORENO
This text of 2020 OK CR 15 (STATE v. CARDENAS-MORENO) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
STATE v. CARDENAS-MORENO
2020 OK CR 15
Case Number: S-2019-797
Decided: 07/23/2020
THE STATE OF OKLAHOMA, Appellant v. JULIO HUMBERTO CARDENAS-MORENO, Appellee.
Cite as: 2020 OK CR 15, __ __
SUMMARY OPINION
¶1 Julio Humberto Cardenas-Moreno, Appellee, was charged with Driving a Motor Vehicle While Under the Influence of Alcohol in the District Court of Texas County, Case No. CM-2019-94. After a hearing on October 28, 2019, the Honorable A. Clark Jett granted Appellee's Motion to Suppress. The State appealed this decision under 22 O.S.2011, § 1053(5).
¶2 Appellant, the State, raises the following sole proposition of error in support of its appeal:
The district court erred in suppressing evidence of the PBT as 47 O.S. 11-902 (N) allows all field sobriety tests into evidence in a DUI trial.
¶3 After thorough consideration of the entire record before us, including the original record, transcripts, and briefs, we reverse and remand for further proceedings. We review the decision to grant a motion to suppress for abuse of discretion, deferring to the trial court's findings of fact and reviewing the legal conclusions de novo. State v. Hodges, 2020 OK CR 2, ¶ 3, 457 P.3d 1093, 1095. "An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts." Id. (citation omitted).
¶4 Oklahoma prohibits a person from driving a vehicle while under the influence of alcohol. 47 O.S.Supp.2018, § 11-902(A)(2). Admissible evidence of impairment (but not of a specific alcohol concentration level) includes testimony regarding the results of standard field sobriety tests, given by a trained and experienced witness. 47 O.S.Supp.2018, § 11-902(N). The question here is whether a preliminary breath test (PBT) should be treated as a field sobriety test, or is more like a test for specific blood alcohol concentration, such as a breath test given under 47 O.S.Supp.2019, § 752.
¶5 Appellee's claim that a PBT is a form of breathalyzer test is unconvincing. Sampling and testing under 47 O.S.Supp.2015, 2019, §§ 752 and 759 are performed to obtain specific alcohol concentration levels, which are intended to be admitted in court proceedings to prove that a defendant has a specific alcohol level greater than that allowed by statute. The record shows that the PBT here did not produce a numerical value for a specific alcohol concentration. Neither the arresting officer nor the prosecutor claim the result of the PBT showed any specific alcohol level, nor was there evidence the test was used to get such results.
¶6 Appellee argues that the Legislature did not include PBTs in a list of standard field sobriety tests. In fact, the Legislature did not provide a list of standard field sobriety tests in 47 O.S.Supp.2018, § 11-902(N). Instead, the statute refers to standard tests "including, but not limited to" horizontal gaze nystagmus tests. Nothing in this language suggests that the Legislature intended to exclude PBTs from this category. Appellee claims there are three standard tests. He cites no Oklahoma law or regulations for that claim, and no evidence supports it. Appellee admits that PBT devices are not included in the list of approved devices for measurement of specific alcohol concentrations. He claims that PBT instruments are intended to be regulated, and there was no evidence that this PBT instrument had been approved by the State. Any merit this argument might have would go to the weight to be given the test results, not their admissibility. State v. Hovet, 2016 OK CR 26, ¶ 9, 387 P.3d 951, 954-55.
¶7 Appellee relies on a Montana Supreme Court case, State v. Crawford, 2003 MT 118, 68 P.3d 848. Given the significant differences between this case and Oklahoma law, its reasoning is unpersuasive. In a different case, the Montana Supreme Court found that, despite statutory language suggesting otherwise, PBTs could not be admitted at trial to prove a specific alcohol concentration, though they could be admissible to show an estimated concentration, as probable cause evidence before trial proceedings. State v. Weldele, 2003 MT 117, ¶¶ 56-58, 69 P.3d 1162, 1175-76.
¶8 The Crawford case reiterated the substance of the Weldele ruling. In both Crawford and Weldele, the State's PBT results were in the form of a specific alcohol concentration number -- the very thing the Montana court had said could not be admitted. Here, by contrast, the State has not sought to admit a PBT result with a number purporting to show a specific alcohol concentration; the claim that Appellee had a "failing" result is merely an estimate, and a rough one at that. Moreover, there is no evidence supporting a finding that a PBT is not among the standard field sobriety tests normally given to suspects at the scene in Oklahoma.
¶9 The trial court below ruled simply that "The PBT test is not admissible in Oklahoma." No law supports that statement, and the finding is an abuse of discretion. Reviewing the law de novo, we find that PBT tests, when used as a field sobriety test to estimate a suspect's level of impairment, and without including a specific number purporting to equal an alcohol concentration level, may be admissible to support an allegation that a person accused of driving under the influence was impaired. 47 O.S.Supp.2018, § 11-902(N). Like any other evidence, their admissibility in any given case must be determined by the trial court on a case-by-case basis, using the relevant standards for measuring reliability.
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Cite This Page — Counsel Stack
2020 OK CR 15, 471 P.3d 760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cardenas-moreno-oklacrimapp-2020.