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State v. Zakovi4/12/2005
Submitted on Briefs: March 16, 2004
Jacob H. Zakovi (Zakovi) appeals from the judgment entered in the Fifth Judicial District Court, Jefferson County, finding him guilty of driving under the influence of alcohol, a misdemeanor, in violation of § 61-8-401, MCA (2001), and operating a motorcycle without an endorsement, a misdemeanor, in violation of § 61-5-111, MCA (2001), challenging the District Court's denial of his pretrial motions. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court err when it denied Zakovi's motion to suppress evidence obtained without the investigative advisory required by § 46-5-402(4), MCA (2001)?
2. Did the District Court abuse its discretion when it denied Zakovi's motion in limine which challenged the officer's administration of an HGN test?
3. Did the District Court err when it denied Zakovi's motion to suppress the results of his blood alcohol test for failure to give his consent?
4. Did the District Court err when it denied Zakovi's motion to suppress the results of his blood alcohol test on the grounds that the sample was collected in violation of § 61-8-405(1), MCA?
FACTUAL AND PROCEDURAL BACKGROUND
On July 11, 2001, at approximately 11:00 p.m., Montana Highway Patrolman Joe Cohenour (Officer Cohenour) responded to a motorcycle accident in the McClellan Creek area of Jefferson County. Dispatch advised Officer Cohenour that the victim, later identified as Zakovi, was injured and that an ambulance and Quick Response Unit were en route to the scene. Upon Officer Cohenour's arrival, he observed two emergency medical technicians loading Zakovi into the ambulance. Officer Cohenour requested Zakovi's name and address, and noted that Zakovi's breath smelled of alcohol and his speech was slurred. Zakovi was then transported to St. Peter's Community Hospital (St. Peter's) in Helena. Officer Cohenour conducted an investigation at the scene and determined to further question Zakovi at the hospital. There he initially spoke with the EMTs who had transported Zakovi by ambulance, and they indicated that Zakovi's breath smelled like alcohol. Officer Cohenour then approached Zakovi, who had been placed in a hospital trauma room, and asked him about the accident. Zakovi responded that he was going too fast and "went off the corner and wrecked." As Zakovi spoke, Officer Cohenour noted a more prominent odor of alcohol on his breath, and observed his eyes were bloodshot and watery. This prompted Officer Cohenour to ask whether Zakovi had been drinking before the accident. Zakovi replied that he drank "three or four beers [before the accident], but it feels like a lot more now." Officer Cohenour administered a Horizontal Gaze Nystagmus (HGN) test, and Zakovi showed nystagmus in six areas. Officer Cohenour advised Zakovi of the Montana Department of Justice Noncommercial Implied Consent Advisory, which informed him that he was under arrest for driving under the influence. Officer Cohenour then requested Zakovi's consent to draw a blood sample for the purposes of a blood alcohol content (BAC) test. Zakovi responded that he was drunk and there was no reason to obtain further proof of his intoxication. Officer Cohenour asked two more times for a sample, to which Zakovi replied similarly. After Officer Cohenour explained that a sample was nonetheless necessary, Zakovi agreed to provide one. Analysis of the sample established that Zakovi's BAC was 0.16. Amy Binfet (Binfet), the phlebotomist on duty at St. Peter's, heard Zakovi state that he was drunk at the time of the accident. At neither the accident scene nor at the hospital did Officer Cohenour give Zakovi t
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