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Marston v. Commonwealth11/5/2004
AFFIRMING
We granted Gregory Marston discretionary review to consider his challenge to the Franklin District Court's denial of a motion to suppress. Marston was stopped at 11:43 p.m. on March 1, 2000, for driving with expired license plate tags. The officer who stopped Marston perceived an odor of alcohol on Marston's breath, and asked appellant to exit the vehicle. According to the officer, Marston failed several field sobriety tests. He refused to submit a proper breath sample. Marston was arrested for driving under the influence of alcohol (DUI), second offense, and possession of marijuana.
Prior to trial Marston moved to suppress the video taped by the arresting officer during the stop and arrest. Marston claimed that, because he is not visible throughout most of the course of the tape, it violated the dictates of KRS 189A.100(2) and should be deemed inadmissible. The Franklin District Court denied the motion. Marston entered a conditional plea of guilty to second offense DUI, and Marston appealed to the Franklin Circuit Court. Unsuccessful in that venue, Marston sought and was granted discretionary review in this Court. We affirm.
KRS 189A.100(2) provides, in part:
(2) Law enforcement agencies may record on film or videotape or by other visual and audible means the pursuit of a violator or suspected violator, the traffic stop, or field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 or such tests at a police station, jail, or other suitable facility subject to the following conditions:
(a) The testing is recorded in its entirety (except for blood alcohol analysis testing); and
(b) The entire recording of the field sobriety tests and the entire recording of such portions of the pursuit and traffic stop as were recorded is shown in court unless the defendant waives the showing of any portions not offered by the prosecution; and
(c) The entire recording is available to be shown by the defense at trial if the defendant so desires regardless of whether it was introduced by the Commonwealth; and
(d) The defendant or his counsel is afforded an opportunity to view the entire recording a reasonable time before the trial in order to prepare an adequate defense.
Marston does not allege, nor can he, that the testing was not recorded in its entirety, but rather that he was not visible throughout the entirety of the testing. We cannot agree with his assertions that the imprecise camera angle was intentional on the part of the officer. And, while he might object to the officer's "running commentary," he offers no evidence to counter its accuracy. The trial court carefully considered Marston's motion but ruled that the tape was admissible. The Franklin Circuit Court found no error, and neither do we.
The judgment of the Franklin Circuit Court is affirmed.
ALL CONCUR.
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