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State v. Carter11/25/1997
in his car, and drive away. Kucera noted that Appellant was staggering as he walked. Kucera testified that because Appellant appeared intoxicated, he got in his own car, followed Appellant, and observed Appellant drive through a stop sign. Kucera reported Appellant to the police via his portable radio.
When the police officer caught up to Appellant, he activated his siren as Appellant was not responding to flashing lights. Appellant then stopped his car in the middle of the traffic lane. The officer approached Appellant and noticed a strong odor of alcohol and slurred speech. The officer administered two field sobriety tests. Based on the information Kucera related to him, and Appellant's poor performance on the tests, the officer determined that Appellant's estimated blood alcohol content (BAC) was over the legal limit of .10. The officer asked Appellant to come to the station for more testing, but Appellant refused. The officer placed Appellant under arrest and warned him about resisting arrest, but Appellant still refused, stating that he was going to get in his car and drive home. The officer grabbed Appellant's arm to prevent him from entering his car, but Appellant held on to the side mirror and tried to pull his arm away. The officer was forced to pry Appellant's hand off the mirror in order to handcuff him. The officer then transported Appellant to the station house.
At the station house, the officer administered the field sobriety tests again while a second officer videotaped Appellant's performance. The officers explained the implied consent form to Appellant and Appellant agreed to take a breath test. Before Appellant blew into the instrument, the second officer completed the standard operational checklist on the instrument to make sure it was working properly. Appellant then blew and registered a .120.
Appellant then requested an independent blood test. The officer transported Appellant to the hospital where a registered nurse drew a sample of Appellant's blood using a blood test kit supplied by the State Forensics Laboratory. The State Forensics Division Analysis Report recorded a BAC of .190.
On May 5, 1994, in justice court, Appellant was tried in absentia and convicted. The justice court issued another order directing the sheriff to seize Appellant's car under the forfeiture provision of § 61-8-714(3)(b)(i), MCA. Appellant again appealed to District Court. On July 26, 1994, the District Court again 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.
This case went to a jury trial on September 7, 1994, and the jury found Appellant guilty of both charges. Appellant's sentencing was delayed until January 31, 1995, due to health problems. Like the case above, the court sentenced Appellant to jail time and a fine for both charges. However, unlike the case above, the court ordered that Appellant's car be forfeited pursuant to § 61-8-714(3)(b)(i), MCA. Appellant then filed a notice of appeal to this Court.
During the pendency of 95-203 and 96-090, Appellant transferred ownership of his car to his daughter. On March 14, 1995, the city attorney filed a motion requesting the court to order Appellant to show cause why he should not be in contempt for violating the court's previous orders directing him not to encumber the title to his car. The court conducted a show cause hearing on April 18, 1995. On April 19, 1995, the court found Appellant in contempt and ordered that Appellant have the title to the car transferred back to his name and deposited with the clerk of court pendi
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