State v. Flaherty, 04-273.
| Citation | 327 Mont. 168,2005 MT 122,112 P.3d 1033 |
| Decision Date | 17 May 2005 |
| Docket Number | No. 04-273.,04-273. |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Patrick Eugene FLAHERTY, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
For Appellant: Wendy Holton, Helena, Montana. For Respondent: Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana; Robert J. Wood, Assistant City Attorney, Helena, Montana.
¶ 1 Patrick Eugene Flaherty appeals from a Decision and Order of the Montana First Judicial District Court denying his motion to suppress the results of an Intoxilyzer 5000 breath test. We affirm.
¶ 2 Did the District Court abuse its discretion when it denied Flaherty's motion to suppress the results of the Intoxilyzer 5000 test?
¶ 3 On February 22, 2003, at approximately 2:00 a.m., Helena Police Officer Derek Wakefield observed a vehicle stopped partially in the roadway with its brake lights engaged. Wakefield discovered Flaherty behind the wheel, apparently asleep, with his foot on the brake pedal. Flaherty awakened and had difficulty putting the vehicle in park.
¶ 4 Wakefield observed that Flaherty appeared to be confused, had red eyes, and smelled of alcohol. After conducting field sobriety tests and a preliminary alcohol screening test (PAST), Wakefield arrested Flaherty, and placed him in handcuffs in the back seat of Wakefield's patrol vehicle.
¶ 5 Wakefield drove Flaherty to the Lewis and Clark County Detention Center, where Flaherty submitted to a breath test using an Intoxilyzer 5000 breath analysis instrument. The Intoxilyzer measured Flaherty's blood alcohol content (BAC) at .252. Flaherty was charged with driving under the influence of alcohol (first offense), pursuant to § 61-8-401, MCA, and operating a noncommercial vehicle with a BAC of .10 or more ("DUI per se"), pursuant to § 61-8-406, MCA (2001).
¶ 6 Flaherty was tried in Helena City Court, where he was convicted of DUI per se, pursuant to § 61-8-406, MCA (2001), and acquitted of driving under the influence of alcohol, pursuant to § 61-8-401, MCA. Flaherty appealed to the District Court for a trial de novo, and moved to suppress the results of the Intoxilyzer test. The District Court denied his motion to suppress by Decision and Order issued October 21, 2003. Flaherty pled guilty to DUI per se, reserving his right to appeal the denial of his suppression motion. From this denial, Flaherty timely appeals.
¶ 7 The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Fenton, 1998 MT 99, ¶ 11, 288 Mont. 415, ¶ 11, 958 P.2d 68, ¶ 11 (citations omitted).
¶ 8 Did the District Court abuse its discretion when it denied Flaherty's motion to suppress the results of the Intoxilyzer 5000 test?
¶ 9 Flaherty argues that the District Court erred when it denied his motion to suppress the results of the Intoxilyzer test because the test was not administered in compliance with Rule 23.4.212(7), A.R.M., which requires breath analyses to be performed according to the operational checklist for the particular analysis instrument being used. Flaherty claims the operational checklist required a 15-minute observation period, but he was at the Detention Center for only 12 or 13 minutes before the test was administered. He argues that prior to his arrival, Wakefield could not have closely observed him to ensure that he did not put anything in his mouth, nor belch or regurgitate, because Wakefield was otherwise occupied driving his patrol vehicle while Flaherty was in the back seat, behind a partition. Flaherty also claims that after they arrived at the Detention Center, Wakefield spent several minutes at the opposite end of the hallway from where Flaherty was sitting, and actually left the room at one point. Flaherty notes that he was left in the company of a jailer, but argues that there is no evidence that the jailer was aware of the observation requirement. Thus, he concludes, he was not observed for 15 minutes prior to the administration of the Intoxilyzer test in such a manner as to comply with the requirements of the applicable A.R.M., and that this foundational failure should have precluded the State from entering the Intoxilyzer results into evidence.
¶ 10 The State responds that most of Flaherty's detention was recorded on videotape, and that it is clear from the tapes that Flaherty was always in the presence of police and/or detention officers. The State points out that while Flaherty is visible on the Detention Center's videotape for 12 or 13 minutes prior to the Intoxilyzer test, Wakefield's patrol car video indicates that after arrival at the Detention Center, they remained in the car for a few minutes while waiting for another DUI suspect to be processed. In addition, the walk from the vehicle to the location where Flaherty appears on the Detention Center's video took a minute or two. Thus, the State maintains that Flaherty was under observation for well over 15 minutes before the test was administered.
¶ 11 Flaherty directs our attention to State v. Utz (App.1993), 125 Idaho 127, 867 P.2d 1001, in which the Idaho Court of Appeals held that an officer who leaves a suspect with jailers during the 15-minute observation period did not meet the foundational requirements for the test results to be admissible as evidence. He further points to several cases from Tennessee, in which that state's court held that the observation period must be strictly followed. See, e.g., State v. McCaslin (Tenn.Crim.App.1994), 894 S.W.2d 310 (); State v. Korsakov (Tenn. Crim.App.2000), 34 S.W.3d 534 ().
¶ 12 The State responds that the Tennessee cases ignore the practical realities of law enforcement, and that one of the functions of the video equipment is to allow an officer to perform such tasks as pat-downs and booking without jeopardizing the officer's effort to obtain a timely breath test result. The State further asserts that many other state courts have considered this issue and do not require as stringent a standard as does Tennessee. See, e.g., Nasser v. State (Ind.Ct.App.1995), 646 N.E.2d 673 (); Glasmann v. State, Dept. of Revenue (Colo.Ct.App.), 719 P.2d 1096 (); McKown v. Director of Revenue (Mo.Ct.App.), 908 S.W.2d 178 (...
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