State v. Giacomini

A Billings Police Officer observed Giacomini driving the wrong-way on a one-way street and initiated a traffic stop. The Officer testified that he noticed Giacomini had watery, blood-shot eyes and smelled of alcohol so he conducted a series of Field Sobriety Tests which indicated impairment. When asked to take a preliminary breath test, Giacomini refused – so he was arrested and taken to Yellowstone County Detention Facility for further testing.

At the detention facility, Giacomini again failed the field sobriety tests and a search showed he had previously refused a breath test in 1990. Based on those factors, the officer applied for and obtained a search warrant for a sample of Giacomini’s blood. Although he was apparently uncooperative, a blood sample was taken and produced a BAC of 0.12. Giacomini was charged with DUI under Mont. Code Ann. § 61-8-401(1)(a) in Municipal Court.

Giacomini filed a motion to suppress the results of the blood test arguing that the draw violated the Montana Constitution and was not supported by probable cause. The Municipal Court denied the motion on the basis that the officer did not violate Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant. Approximately a month later, Giacomini filed a motion entitled “Request for Hearing” and asked the Municipal Court to reconsider the suppression issue because the video of the blood draw showed that Mr. Giacomini was “continually stuck” with needles. That motion was denied as untimely. Giacomini pled nolo contendere, reserving the suppression issues for appeal. The District Court affirmed the Municipal Court’s rulings.

On Appeal to the Montana Supreme Court, Giacomini challenged the legality of the blood draw and the Municipal Court’s denial of his motion to reconsider as untimely. The Supreme Court found that the warrant was supported by probable cause and did not violate his constitutional right to privacy. It also found that the Municipal Court did not err by denying his motion as untimely.

In challenging the warrant, Giacomini argued that his prior refusal of a breath test was insufficient to establish probable cause to support a warrant to draw his blood. The Montana Supreme Court disagreed, finding that the warrant was supported by a number of different facts: 1) he had driven the wrong way down the road; 2) he had watery and bloodshot eyes; 3) he smelled of alcohol; 4) he swayed and staggered; and 5) he performed poorly on the field sobriety tests.

Giacomini also cited to Missouri v. McNeely, a U.S. Supreme Court decision which held that the natural dissipation of alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying a warrantless blood draw in a DUI investigation. Giacomini applied this to his situation, arguing that if dissipation is insufficient for exigent circumstances, it is insufficient for probable cause. The Montana Supreme Court ruled that the probable cause determination was not based solely on alcohol dissipation, included considerable other evidence, and the case did not involve a warrantless blood draw based on exigent circumstances so McNeely did not apply.

The Supreme Court declined to address Giacomini’s constitutional challenge to the blood draw.

Finally, the Supreme Court upheld the Municipal Court’s decision that the Request for hearing was untimely. The Court believed that it was essentially a second motion to suppress, and found that it should have been raised before the omnibus hearing. Because it was filed approximately three months after that date, it was untimely.

DUI Evidence at Trial

When a person is pulled over and the officer conducts a DUI investigation, he is looking for one main thing: evidence that you are impaired by alcohol or drugs. But, the officer has a number of disadvantages regarding the accuracy of his investigation.

The first is that he is unaware of what your normal faculties are. If you’ve had a knee injury, for instance, doing a heel-to-toe walking test may be difficult for you. Likewise, when standing on one foot for a long period of time any number of medical reasons may cause you to sway or lose your balance. These do not reflect on your degree of intoxication or impairment.

There are a number of ways that police try to collect proof against a driver suspected of DUI in Montana. One is by asking about alcohol consumption. An officer could ask, for instance, if you have been drinking and if so, how much. Another aspect the officer will evaluate is your performance on field sobriety tests, where you are asked to complete several physical activities (and follow instructions) to see how well you are able to complete the task. The officer will evaluate your performance on these tests, although his or her perception is highly subjective, and may be colored by the fact that he already suspects you are intoxicated.

Perhaps the most important test the officer will ask you to submit to is a breathalyzer. Although there is evidence to suggest that these machines are not nearly as accurate as police claim they are, the results are still admissible in court.

In addition to these tests, the officer is also watching for other signs of intoxication like bloodshot eyes for example. But as anyone with allergies or contacts can tell you, drinking isn’t the only way to get red eyes.

The bottom line is that while an officer is watching for certain things during a DUI investigation, many of these factors can be caused by completely innocent facts that the officer is not aware of. If you have been wrongly accused of driving under the influence of alcohol or drugs in Montana, please call me today at (406) 752-6373 for a free consultation.

Montana DUI Per Se

A traditional DUI is the operation of a motor vehicle while impaired by alcohol or drugs. This is a relatively subjective assessment with no bright line rule. Determining whether you are “impaired” requires an assessment of your skills that is difficult to make and even harder to prove. The results of Field Sobriety Tests are used to make an assessment of a person’s skills. But the results of the tests are subjective and can be argued about. This makes the state’s job tougher when trying to convict citizen’s accused of DUI. In response to this, a DUI per se was created.

A per se violation is based on a legal assumption. The DUI law in Montana assumes that if your blood alcohol level is at .08 or above, you are too impaired to safely operate a vehicle. It makes no difference whether you are actually impaired, it only matters what level of alcohol is present in your blood according to a test. A Montana DUI per se is a strict liability offense. The state does not need to prove that you were a danger behind the wheel, only what your B.A.C. was at the time.

Proving B.A.C. generally comes down to the result of a breath or blood test administered by a police officer. As I’ve discussed on here before, these results can be skewed by any number of factors, and despite what they would have you believe on TV: are not always accurate. This is why discussing your situation with a Montana DUI attorney is so important, especially one with experience. A per se violation is very difficult to defend unless your attorney is familiar with the technical requirements of Field Sobriety Tests, Particularized Suspicion, and Breathalyzers.

State of Montana v. Larson

Joshua Larson was charged with Driving Under the Influence in District Court in Missoula, Montana. He appealed his DUI/DWI conviction to the Montana Supreme Court, who affirmed the District Court.

While making a traffic stop in Missoula, officers witnessed Larson squeal his tires through an intersection. One of the officers followed Larson, observed that he had over-sized tires and no mud flaps, and initiated a traffic stop. Larson slurred his speech, which lead the to the officer requesting that he perform Field Sobriety Tests (FSTs). The tests produced a “sub-par” performance, leading the officer to request a breath test, wherein Mr. Larson blew a .023 (well below the legal limit). The officer asked to search Larson’s vehicle because he thought Larson might be under the influence of drugs. At that point Larson went to his truck and retrieved a bag of marijuana and a pipe which he admitted to smoking an hour before the stop.

Larson moved to suppress all evidence and statements made during the roadside investigation. He argued a lack of particularized suspicion to justify the stop, a lack of particularized suspicion to justify the FSTs, and that Miranda warnings were required prior to his retrieval of the drugs. The Montana District Court found sufficient particularized suspicion to justify the initial stop, and subsequent evidence justified the continued detention.

The Montana Supreme Court ruled that because Larson screeched his tires and revved his engine continually, while crossing a busy intersection, and had a mud-flap violation these two events, along with rational inferences, reasonably warranted the stop.

Likewise, the Montana Supreme Court ruled that the FST was warranted based on the particularized suspicion for the stop combined with the subsequently discovered evidence (like Larson’s slurred speech, and other factors in the opinion).

Appealing DUI License Suspension

Under Montana DUI law, if you refuse to submit to an alcohol concentration test, your license is automatically suspended. A defendant whose license is suspended or revoked, may appeal to the district court in the county where the alleged DUI occurred. The appeal must be filed within 30 days of the revocation.

At the hearing for the appeal, the district court considers a number of issues:

1) did the peace officer have “reasonable grounds” to believe the Defendant was Driving Under the Influence;

2) was the person under the age of 21 and placed under arrest for a violation of 61-8-410;

3) did the officer have probable cause to believe the person was Driving Under the Influence and involved in an accident resulting in property damage, personal injury, or death; and

4) did the defendant refuse to submit to a test designated by the officer.

At the time of the request for the test, the officer must carefully inform the defendant of the consequences of a refusal. A person’s first refusal will result in a suspension of six months. A second or subsequent refusal within five years of the previous refusal will result in a revocation of one year.

If your license is suspended for an implied consent refusal, you may not obtain a restricted or probationary license.

In your license has been suspended in the Kalispell or Flathead area, contact me today for a free case review. And remember, you only have 30 days to appeal the suspension.

Montana DUI Preliminary Screening Tests

If an officer has stopped you (because he had a particularized suspicion) he will then watch for any indications that you are under the influence of alcohol or drugs. Assuming that there are some indications, the officer will then perform a Preliminary Screening Test. These tests come in a number of different formats, and carry a different amount of weight in making a determination of whether to perform an arrest for DUI.

We’ve discussed Montana field sobriety tests before. These are one of the preliminary screening tests that officers use to determine whether you have been driving under the influence of alcohol or drugs. A videotape of the tests is admissible even if no Miranda Warnings have been given. And successfully performing the field sobriety test does not mean you can’t still be arrested for DUI. Montana courts have ruled that the tests are not required to establish probable cause for an arrest and that probable cause may still be established with other evidence.

The horizontal gaze nystagmus (HGN) test is really a field sobriety test, but common enough to warrant its own discussion. This is when an officer holds something in front of your face and moves it left and right asking you to follow it with your eyes. The officer is trained to watch the way your eyes move to determine whether you are impaired by alcohol. Although it seems simple enough, properly administering the HGN test requires a great deal of specialized knowledge, and before the results of one can be admitted into court, the evidence must show that the arresting officer was properly trained to administer the test and that he was administering it in accordance with that training.

The Preliminary Breath Test (PBT) is a portable breathalyzer that officers use at the scene of a traffic stop to establish probable cause for DUI arrest in Montana. If the officer has a particularized suspicion that a driver has consumed alcohol, Montana law allows him to request a PBT. The law is similar to the implied consent law, in that a refusal to take the PBT may result in the suspension or revocation of the driver’s license or privilege to drive. However, the results of these tests are not substantive evidence of the amount of alcohol present in a person’s body. They just provide an estimate of alcohol concentration for the purpose of establishing probable cause.

Drunk Driving Lawyer Questions Validity of Field Sobriety Tests

A New Hampshire man was arrested for DUI, but only convicted of a lesser offense because of his body type. Now many are questioning the validity of field sobriety tests.

Jaimil Choudhry, 20, of North Hampton is 5 feet 10 inches tall and weighs 230 pounds, which meets the clinical definition of obesity. While police believed Choudhry was intoxicated at the time of his arrest, drunk driving lawyer Andrew Cotrupi argued that his client shouldn’t have been given particular field sobriety tests because of his obesity.

Cotrupi said Choudhry’s obesity was a significant factor that prevented him from completing the field sobriety test as expected, where Choudhry was not able to balance on one leg the night of his arrest, due to his weight.

Choudhry’s DUI lawyer was able to negotiate with the prosecutors so he was only charged with a violation of reckless operation instead of a DUI. Choudhry pled guilty to the charge and agreed to pay a $500 fine and surrender his license for 60 days.

While Choudhry’s case isn’t common, it shows that there are valid forms of defense to field sobriety tests. Field sobriety tests are not absolutely accurate, and can often be challenged in Flathead County, Montana. If you believe that a field sobriety test in Kalispell, Whitefish, Columbia Falls, Libby or Polson was done improperly or lead to an incorrect result, call a DUI lawyer immediately. I offer a free case review of DUI cases – call 752-6373 today to schedule an appointment and find out about my flat fees.

Can an Officer Record me Without my Consent?

Montana law prohibits one party from recording a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. We Montanans take our privacy very seriously, and this is an excellent example of that (along with our constitutional right to privacy). But it raises the question of whether recordings made by police officers in DUI stops are acceptable (and more importantly admissible as evidence at trial).

However, the law giveth and the law taketh away. Another statute (a lawyer word for law) exempts elected or appointed public officials or public employees when the transcription or recording is done in the performance of their official duty. The Montana Supreme Court has ruled that this exception applies to police officers (when acting in the course of their official duty). Specifically, the case of State v. Belgarde found that neither the Montana privacy statute nor the constitutional guarantee was violated by a deputee sheriff tape recording a defendant during the trip to the police station.

So while you may not have known that the highway patrol officer was videotaping you acting like a drunken idiot on the drive to jail – that movie is admissible at trial and not something a jury is likely to look kindly on. And remember, this applies to any tape of field sobriety tests as well.

As a general rule, anytime you are interacting with police it is wise to assume that whatever you do or say will be seen by a jury sometime. It’s a good rule to help keep yourself in line.

Field Sobriety Tests in Montana

Field sobriety tests (FSTs) encompass several roadside tests used to determine whether a suspect is impaired by alcohol or drugs. They are often performed on DUI suspects to assist an officer make the decision whether to arrest the driver. In theory, these tests directly assess impairment by focusing on the skills needed to be a safe driver.

A major problem with FSTs is that the results are very subjective, relying on the opinion of the officer administering the test to determine the outcome. This also makes them very difficult to challenge later in court. According to one study, many sober people are unable to perform the tests properly. This study found a false positive rate of 23%. Many FSTs are “divided attention tests” that try to test the driver’s ability to perform physical and mental multi-tasking.

Some of the most common FSTs are:

  • Horizontal Gaze Nystagmus – moving an object left and right to examine how the eyes move when they follow it.
  • Walk-and-Turn (heel-to-toe in a straight line)
  • One Leg Stand
  • Finger to Nose
  • Recite all or part of the alphabet. A common myth is that suspects are required to recite the alphabet backwards. Most people can’t do this sober, let alone when intoxicated.
  • Touch each finger of hang to thumb counting each touch
  • Count backwards from a number (such as 30 or 100)

More and more, these tests are being standardized into a three-pack. They include the Horizontal Nystagmus Test, the walk and turn test, and the one-leg stand.

After administering the FSTs, the officer will make a determination whether there is probable cause to make an arrest. If he believes there is, he will place the driver under arrest and transport them to jail. Usually at the jail they are given either a blood or breath test to analyze the level of alcohol in their blood.