State v. Damon

2005 MT 218, 119 P.3d 1194, 328 Mont. 276, 2005 Mont. LEXIS 381
CourtMontana Supreme Court
DecidedSeptember 6, 2005
Docket04-294
StatusPublished
Cited by48 cases

This text of 2005 MT 218 (State v. Damon) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Damon, 2005 MT 218, 119 P.3d 1194, 328 Mont. 276, 2005 Mont. LEXIS 381 (Mo. 2005).

Opinions

JUSTICE MORRIS

delivered the Opinion of the Court.

¶1 We once again address the issue of whether the State may admit the results of a defendant’s Preliminary Breath Test (PBT) as substantive evidence at trial. We earlier held in State v. Strizich (1997), 286 Mont. 1, 952 P.2d 1365, State v. Weldele, 2003 MT 117, 315 Mont. 452, 69 P.3d 1162, and State v. Snell, 2004 MT 334, 324 Mont. 173, 103 P.3d 503, that the State had failed to prove the PBT’s statistical reliability and therefore rejected it as substantive evidence. The Eighth Judicial District Court, Cascade County, found in this case, however, that the State had presented sufficient evidence supporting the reliability of the PBT to permit the results of David Damon’s [278]*278(Damon) PBT as substantive evidence at his trial along with two statements that he made to law enforcement. Damon appeals from these rulings and from the District Court’s sentence designating him as a persistent felony offender. We agree that the State met its burden in this case and affirm the District Court in all respects.

¶2 We address the following issues on appeal:

¶3 1. Whether the District Court abused its discretion in determining

that Damon’s PBT result proved sufficiently reliable to be worthy of admission as substantive evidence at trial.

¶4 2. Whether the District Court abused its discretion in admitting evidence of certain statements that Damon made to police during an investigatory stop in spite of the officer’s failure to recite the advisories required by §46-5-402(4), MCA (2001).

¶5 3. Whether the District Court’s designation of Damon as a persistent felony offender fell within the parameters set by statute.

BACKGROUND

¶6 A law enforcement officer allegedly observed Damon driving erratically in the evening hours of December 9, 2002, and pulled him over. As the officer approached Damon’s vehicle, Damon opened his door and began explaining his erratic driving. The officer noticed Damon’s slurred speech and detected a strong odor of alcohol. The officer conducted a series of field sobriety tests. During the course of these tests, Damon blurted out ‘5ust give me a DUI,” and Tm already drunk.” The officer then administered a PBT, also known as a Preliminary Alcohol Screening Test (PAST), that revealed Damon’s blood alcohol content (BAC) to be 0.274. The officer took Damon to the police station where his belligerent behavior prevented officers from administering a second breath test with the station’s non-portable instrument.

¶7 The State charged Damon with the following offenses: driving under the influence of alcohol (DUI), fourth or subsequent offense, a felony (Count I); driving while privilege to do so is suspended or revoked, a misdemeanor (Count II); no insurance, a misdemeanor (Count III); and disorderly conduct, a misdemeanor (Count IV). The prosecutor timely filed a notice of intent to treat Damon as a persistent felony offender, based on Damon’s previous felony DUI conviction of January 14,1999.

¶8 The District Court held a hearing on August 7,2003, and October 8,2003, to determine whether the results from Damon’s PBT would be admissible at trial. The State and Damon presented expert testimony [279]*279on this issue. The District Court issued a written order on November 26, 2003, finding the results of the PBT at issue, the Aleo-Sensor III, to be sufficiently reliable and accurate as an evidentiary tool and allowing the State to introduce the evidence at Damon’s tried.

¶9 Damon moved to suppress various statements that he had made that the police officer recorded on videotape during the investigatory stop based on the officer’s alleged failure to advise him as to the nature of the stop pursuant to the now-repealed §46-5-402(4), MCA (2001). The District Court granted Damon’s motion in part and the court ultimately required the State to excise certain statements from the audio of the tape, but allowed to remain Damon’s statements to police ‘just give me a DUI,” and Tm already drunk.”

¶10 The District Court held Damon’s trial on December 8, 2003, and December 9,2003. The jury convicted Damon and the court sentenced him on March 10, 2004. The District Court sentenced Damon to ten years, with five years suspended, on the felony DUI charge and also designated him to be a persistent felony offender.

¶11 Damon appeals from the court’s evidentiary rulings and the court’s designation of him as a persistent felony offender.

STANDARD OF REVIEW

¶12 This Court reviews rulings on the admissibility of evidence, including oral testimony, under an abuse of discretion standard. Snell, ¶ 17. We leave the determination of the relevancy and admissibility of evidence to the sound discretion of the trial judge and we will not overturn it absent a showing of abuse of discretion. Snell, ¶ 17. We review criminal sentences for legality; that is, we determine whether a sentence falls within statutory parameters. State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, ¶ 8, 106 P.3d 521, ¶ 8; State v. Eaton, 2004 MT 283, ¶ 11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11.

DISCUSSION ISSUE ONE

¶13 Whether the District Court abused its discretion in determining that Damon’s PBT result proved sufficiently rehable to be worthy of admission as substantive evidence at trial.

¶14 Damon’s sole argument rests on his claim that the District Court abused its discretion in concluding that the PBT used in this case, the Aleo-Sensor III, is scientifically rehable. Damon contends that the Aleo-Sensor III cannot determine accurately a person’s BAC as used by police officers in field conditions. Damon relies on several earher [280]*280decisions addressing this same issue, including Strizich, Weldele, and State v. Crawford, 2003 MT 118, 315 Mont. 480, 68 P.3d 848. Damon specifically admitted during oral argument, however, that he had not challenged the procedures followed by the officer who administered the test. He farther conceded that he had not challenged the efficacy of the administrative regulations followed by the officer in administering the PBT.

¶15 The State contends it presented extensive expert testimony and evidence to the District Court regarding the reliability of the AlcoSensor III. The State further maintains that the field protocols used by the administering officer in this case cure any reliability problems.

¶16 Rule 702, M.R.Evid., which is identical to its federal counterpart, governs the admissibility of expert testimony. Rule 702 provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.

¶17 In Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 657 P.2d 594, overruled on other grounds by Martel v. Montana Power Co. (1988), 231 Mont. 96, 103, 752 P.2d 140

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Cite This Page — Counsel Stack

Bluebook (online)
2005 MT 218, 119 P.3d 1194, 328 Mont. 276, 2005 Mont. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-damon-mont-2005.