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State v. Carter11/25/1997
Submitted on Briefs July 2, 1997.
This appeal involves two separate offenses by Defendant-Appellant Clark Carter (Appellant). At his request, and by order of this Court, the appeals were consolidated. On June 5, 1993, Appellant was charged with driving under the influence of alcohol (DUI), third offense. On December 29, 1993, Appellant was again charged with DUI and resisting arrest. In both cases, Appellant failed to appear in justice court to defend, was tried in absentia, and was convicted. Appellant then obtained counsel and appealed both his convictions to District Court. In two separate de novo trials, the Tenth Judicial District Court, Fergus County, entered judgments of conviction on all counts. Appellant appeals his convictions. We affirm.
The issues on appeal are as follows:
1. Did the District Court err in admitting lay witness opinion testimony?
2. Did the District Court err in denying Appellant's motion to dismiss the charge of resisting arrest on the basis of insufficient evidence?
3. Did the District Court err in admitting evidence of Appellant's prior DUI convictions during the State's cross-examination of Appellant's character witnesses?
4. Did the District Court err in admitting Appellant's breath test results?
5. Did the District Court err in admitting Appellant's blood test results?
6. Did the District Court improperly forfeit Appellant's vehicle?
BACKGROUND
The following facts form the basis of the appeal in No. 96-090. On June 5, 1993, a sheriff's deputy stopped Appellant because he was driving in an erratic manner. The deputy detected an odor of alcohol and noted that Appellant was unsteady on his feet. Appellant believed he was not too drunk to drive and agreed to a breath test to confirm his belief. At the station house, a breath test specialist completed the standard operational checklist to make sure the breath instrument was working properly. Appellant took the breath test and registered a .226. Appellant was charged with third offense DUI.
On May 4, 1994, in justice court, Appellant was tried in absentia and convicted. The justice court ordered the sheriff to seize Appellant's car as required by § 61-8-714(3)(b)(i), MCA (1993). Appellant then appealed to District Court. On July 27, 1994, the District Court ordered that Appellant's car be returned on the condition that he not operate, sell, transfer, or encumber the vehicle during the pendency of the proceedings without leave of court.
On April 18, 1995, Appellant filed a motion in limine to exclude the results of his breath test until the State proved that the breath instrument had been properly tested by the State Forensics Laboratory, and that the instrument operator was certified. The District Court denied the motion on May 24, 1995.
On July 21, 1995, the parties agreed to submit this matter to the District Court for its decision based on stipulated facts which included the police reports and the breath test. Appellant reserved for appeal any issue he had previously raised. On July 27, 1995, the court entered judgment against Appellant. Although the court sentenced Appellant to jail time and a fine, the court also ruled that Appellant's car would not be forfeited, because § 61-8-714(3)(b)(i), MCA, did not apply. Appellant then filed a notice of appeal to this Court.
The next set of facts form the basis of the appeal in No. 95-203. On December 29, 1993, Appellant was charged with DUI and resisting arrest. An off-duty fireman, Keith Kucera, observed Appellant leave the Montana Tavern, cross the street, get
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