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City of Helena v. Kortum10/21/2003
Submitted on Briefs: July 11, 2002
On June 17, 2000, the City of Helena (City) charged George Peter Kortum (Kortum) with driving under the influence of alcohol (DUI) pursuant to § 61-8-401(1), MCA, and running a red light pursuant to § 61-8-207(3), MCA. On November 16, 2000, a jury in Helena City Court returned a verdict of guilty on both charges. Kortum appealed to the First Judicial District Court for Lewis and Clark County, and on February 26, 2002, a six-member jury returned a verdict of guilty on both charges. Kortum appeals his DUI conviction. We affirm.
We address the following issues on appeal:
1. Whether the District Court abused its discretion in denying Kortum's motion for a directed verdict on grounds the field sobriety tests were administered improperly and not pursuant to established police procedure.
2. Whether the District Court abused its discretion when it prohibited defense counsel from utilizing a pamphlet in closing argument which had been previously admitted into evidence.
FACTUAL AND PROCEDURAL BACKGROUND
On June 17, 2000, Kortum went to Helena with friends to attend the Jazz Festival. At trial, Kortum testified that he consumed approximately three drinks during the course of the day. Later that evening, he and several friends departed from a bar, with Kortum driving his truck.
Officer David Glowacki (Glowacki), a Helena City Police Officer, traveling northbound on Park Avenue, observed Kortum's truck make a very wide turn onto Park Avenue, with the truck traveling completely into the southbound turn lane. He observed the wheels of the truck cross the centerline several times. Then, as Kortum pulled up to the traffic light at the intersection of Benton and Euclid Avenues, his truck almost came to a complete stop, but when the light turned red, proceeded through the traffic light. The maneuver at the stop light was videotaped from an in-car camera and was later shown to the jury.
Based upon these observations, the officer stopped Kortum on Euclid Avenue near the Vann's store parking lot and asked for license, registration, and proof of insurance. Kortum had trouble getting his wallet out of his pocket and, although he eventually complied, Kortum had to be prompted to produce the other requested documents, at which time his passengers began assisting him. Glowacki noted the odor of alcohol.
Based upon his contact with Kortum and his observations of Kortum's driving, Glowacki asked Kortum to perform several standard field sobriety tests (SFSTs), which, according to Glowacki, were performed unsatisfactorily. Trial testimony revealed that another officer on the scene said to Glowacki that there might be a better location for the tests. Glowacki replied that, in his opinion, he had "enough [of Kortum's] driving" on video to justify the arrest and decided not to re-administer the SFSTs. After the SFSTs were administered, Glowacki requested that Kortum take a breath test, but he refused. Kortum was then placed under arrest and taken to the police station for booking.
At the police station, Kortum again refused to take a breath test. However, Glowacki offered Kortum the opportunity to re-take the SFSTs. Glowacki testified that although Kortum performed better on the tests administered at the police station, nothing changed his mind about Kortum's impaired ability to drive.
Prior to trial, defense counsel sought a ruling from the District Court regarding the admissibility of a pamphlet called BAC and You published by the State of Montana Department of Transportation (DOT). BAC and You provides general information to the public about
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