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[W] State v. Snell9/14/2004
Submitted on Briefs: January 24, 2004
On October 28, 1999, an Information charged Kenneth Snell with operating a motor vehicle while under the influence of alcohol or drugs, fourth offense, and driving while license suspended or revoked, a misdemeanor. A Missoula County jury returned a guilty verdict on both charges. The Fourth Judicial District Court sentenced Snell and entered judgment on September 19, 2002. Snell appeals and we affirm. We restate the following issues on appeal:
1. Whether the courts of limited jurisdiction committed reversible error when they did not expressly advise Snell regarding his right to counsel and did not obtain an express waiver of this right?
2. Whether the District Court properly admitted the PAST evidence?
3. Whether the District Court properly allowed a law enforcement officer to offer testimony regarding Snell's intoxication level even though the officer was not listed as an expert witness prior to trial?
BACKGROUND
After leaving the Rock Creek Testicle Festival in the early morning hours of September 19, 1999, Kenneth Snell drove west on Interstate 90 between Turah and East Missoula with his wife, mother-in-law and another passenger. As he traveled eastbound on Interstate 90, Montana Highway Patrol Officer Danny Pat Harrison observed Snell traveling too close behind another car and noticed that he failed to dim his bright lights for oncoming traffic. Officer Harrison turned to follow Snell's car and watched it noticeably weave within the traffic lane, cross the fog line and drive on the center line.
Officer Harrison stopped Snell, detected the odor of alcohol and noted that Snell had slurred speech and bloodshot eyes. Snell told Officer Harrison he did not have a driver's license because it was revoked and that he had been drinking beer. Snell consented to a preliminary alcohol screening test (PAST) and provided a breath sample on a preliminary alcohol screening device (an Alco-Sensor III) which scored above the legal limit of .10. However, Snell refused to perform the other field sobriety tests. Officer Harrison arrested Snell and transported him to the police station for further processing. While there, he provided another breath sample, again on a preliminary alcohol screening device, that scored above .10. The District Court later excluded this second test because the law only authorizes one preliminary breath sample to be taken.
On October 28, 1999, the State charged Snell with driving while license suspended, a misdemeanor. Based upon three prior DUI convictions, the State also charged Snell with his fourth offense of driving under the influence (DUI), a felony. Snell pled not guilty to both charges.
Snell filed a motion in limine to exclude the PAST results. The District Court denied Snell's motion and permitted the State to introduce the PAST evidence. In admitting the evidence, the court stated that any variables in the testing go to the weight, not the admissibility, of the evidence.
A jury trial held in District Court on October 10-11, 2001, resulted in two guilty verdicts, one for felony DUI and one for misdemeanor driving while license suspended. At trial, Snell objected to opinion testimony offered by Officer Harrison that Snell was under the influence of alcohol based on the assertion that the State had not identified Officer Harrison as an expert. The court allowed the testimony.
Subsequent to the jury verdict but prior to sentencing, Snell filed a motion to dismiss for lack of jurisdiction claiming that two of his three previous DUI convictions used to enhance punishment were constitutionally
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