Big Sky Blawg » DUI

State v. Glick – 2009 MT 44

Paul Sullivan — Thu, 19 Mar 2009 17:27:56 +0000

On appeal, Glick argued that he should have been allowed access to a Presentence Investigation (PSI) report concerning a prosecution witness. The District Court Judge excluded the report on the basis of an in camera review because she found no references to specific instances of truthfulness or untruthfulness that would be relevant pursuant to Montana Rule of Evidence 608(b). Glick’s assertion was that this violated his constitutional right to due process, to present a complete defense, and to confront witnesses.

SCOMONT held, under Montana law, PSI reports must be part of the court record but may not be opened for public inspection. The correct process is to have confidential state agency records reviewed in camera by the trial court to determine whether they contain information that is material to the defense. The District Court did so in this case, and its denial of Glick’s motion for access to the PSI report was not error.

The Court also denied Glick’s claim that he was denied effective assistance of counsel based on an attorney conflict of ineterest.

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State v. White – 2009 MT 26

Paul Sullivan — Wed, 18 Mar 2009 16:41:20 +0000

When the annual State certification of a breathalyzer is offered into evidence and the author of the report is not present as a witness, the prosecution must have complied with M. R. Evid. 803(6) as part of the foundation for admitting the alcohol concentration breath test results into evidence.

M. R. Evid. 803(6) provides that written reports of the “state crime laboratory” are an exception to the rule excluding hearsay evidence, but only

when the state has notified the court and opposing parties in writing of its intention to offer such report or reports in evidence at trial in sufficient time for the party not offering the report or reports (1) to obtain the depositions before trial of the person or persons responsible for compiling such reports, or (2) to subpoena the attendance of said persons at trial.

The notice requirement of the Rule is self-executing and does not depend on motion, demand, or objection of the defendant.

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Brown v. State – 2009 MT 64

Paul Sullivan — Fri, 06 Mar 2009 21:47:02 +0000

In an attempt to have his driver’s license reinstated after refusing a breath test, Brown argued that only an experienced officer could make the proper inferences to justify compelling a breath sample. SCOMONT noted that in a driver’s license reinstatement proceeding, “the court is limited to deciding whether the peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol […]” Brown, ¶ 11 (internal citations omitted). The reasonable grounds requirement is equivalent to particularized suspicion in an investigative stop. “[T]he test for particularized suspicion simply requires that the information available to the investigating officer – whether a rookie or a veteran – be sufficient to allow a hypothetical ‘experienced’ officer to have either particularized suspicion for a stop, or probable cause for an arrest.” Brown, ¶ 19.

The Court acknowledged that several cases implied an “experienced officer” requirement (State v. Gopher, 193 Mont. 189 (1981), State v. Schatz, 194 Mont. 59 (1981), and State v. Morsette, 201 Mont. 233 (1982)) but found that these evolved from various early misinterpretations of the U.S. Supreme Court’s decision in United States v. Cortez, 449 U.S. 411 (1981). Attempting the remedy the confusion, SCOMONT stated:

Therefore, we hold that, henceforth, for a peace officer to have particularized suspicion or reasonable grounds for an investigatory stop, the peace officer must be possessed of: (1) objective data and articulable facts from which he or she can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is about to commit an offense. While a peace officer’s experience and training may be a factor in determining what sort of reasonable inferences he or she is entitled to make from his or her objective observations, experience and training will not necessarily be the defining element of the test.

Brown, ¶ 20. Here, where the officer smelled alcohol in Brown’s vehicle, it was 2:51 a.m., Brown’s vehicle had been moving slowly down the street before abruptly pulling over, stopping and turning off the headlights, Brown’s speech was slow and slurred, Brown made a slow and staggered exit from the vehicle, Brown admitted that he had been drinking earlier in the night, and there was a plastic Budweiser container in the pickup’s cupholder, there was sufficient evidence for the officer to believe that Brown was driving under the influence of alcohol. The District Court’s conclusion that the deputy had reasonable grounds to believe that Brown was driving under the influence of alcohol was affirmed.

Brown v. State of Montana