State v. Colby7/8/1999
d he smelled of alcohol. He slurred some of his words. He performed poorly in several roadside field sobriety tests. He scored a 0.127 on the PBT.() Moreover, he admitted that he had been drinking. There was overwhelming evidence that Colby was driving under the influence of alcohol.
. Thus, we hold that to the extent that the District Court may have abused its discretion in admitting the breath test results, the error was harmless because of the independent overwhelming evidence that Colby was driving under the influence of alcohol. Compare State v. Huerta (1997), 285 Mont. 245, 252, 947 P.2d 483, 487 (holding that when record establishes guilt a new trial will not be granted unless error impaired right to fair trial); State v. Arlington (1994), 265 Mont. 127, 141, 875 P.2d 307, 316 (concluding that although district court erroneously limited cross-examination, error was harmless because of overwhelming evidence that victim was beaten). Moreover, we note that Colby makes no claim that the admission of the breath test results has prejudiced his substantive rights. Compare § 46-20-701(2), MCA (providing that " ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded").
. The verdict and judgment of the District Court are affirmed.
W. WILLIAM LEAPHART
We concur:
J. A. TURNAGE
WILLIAM E. HUNT, SR.
JIM REGNIER
Justice James C. Nelson Dissents.
. I disagree with the Court's harmless error analysis. First, we note that Colby scored a 0.127 on the PBT. We have held that the results of a PBT (preliminary alcohol screening test) taken pursuant to § 61-8-409, MCA (1995), the statute applicable at the time of Colby's arrest,
"are not substantive evidence of the amount of alcohol present in a person's body, but instead are an "estimate" of alcohol concentration for the purpose of establishing probable cause to believe that a person is under the influence of alcohol prior to making an arrest for violation of §§ 61-8-401, -405, or 410, MCA." State v. Strizich (1997) 286 Mont. 1, 12, 952 P.2d 1365, 1372.
See also § 23.4.201(7)(b), ARM (PBT test results "are to be considered as probable cause evidence only"). Accordingly, while Colby's PBT test result was relevant to the determination of probable cause for his arrest for DUI, the result was not substantive evidence of his guilt which the jury was entitled to consider. For this same reason, it is improper that we factor the test result into our Conclusion that " here was overwhelming evidence that Colby was driving under the influence of alcohol." The test result would not have been properly considered as part of that evidence.
. Second, regardless of the quantum of admissible non-breath test evidence that might be left, we have held that the improper admission of BAC evidence of alcohol consumption is not harmless error as it has a "'natural tendency' to infect the entire proceedings with an unfairness which can only be remedied with a new trial." Havens v. State (1997), 285 Mont. 195, 201, 945 P.2d 941, 944. See also State v. Ingraham, 1998 MT 156, 37-51, ___ Mont ___, 37-51, 966 P.2d 103, 37-51 (citing Havens, 285 Mont. at 200, 945 P.2d at 944); and Simonson v. White (1986), 220 Mont. 14, 23, 713 P.2d 983, 988 (holding that, in his trial for negligent homicide, the improper admission of prescription drugs detected in defendant's system following an automobile accident, but which were not shown to have had any effect whatsoever on his ability to drive was by its very nature prejudicial rather than harmless error, thus requiring a new trial).
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