State v. Zakovi4/12/2005
he investigative stop advisory pursuant to § 46-5-402(4), MCA (2001).
On July 13, 2001, Zakovi was charged in the Jefferson County Justice Court with driving under the influence of alcohol, and driving under the influence of alcohol per se, in violation of §§ 61-8-401 and 61-8-406, MCA (2001), and operating a motorcycle without an endorsement, in violation of § 65-5-111, MCA (2001). On July 26, 2002, Zakovi filed pretrial motions to suppress the State's evidence of his intoxication, which the Justice Court denied. Zakovi was then found guilty in the Justice Court of violating §§ 61-8-401 and 61-5-111, MCA (2001), and he appealed to the District Court. Following a suppression hearing, the District Court denied Zakovi's pretrial motions. Zakovi then entered a conditional plea of guilty to the charges, reserving his right to appeal from the District Court's suppression rulings, which he now challenges.
STANDARD OF REVIEW
Our review for rulings on motions to suppress is twofold. First, we review the court's findings of fact to determine whether they are clearly erroneous--that is, whether the findings are supported by substantial evidence, whether the district court misapprehended the effect of the evidence, and whether the Court is nevertheless left with a definite and firm conviction that the district court made a mistake. State v. Gouras, 2004 MT 329, 12, 324 Mont. 130, 12, 102 P.3d 27, 12. Second, we engage in a plenary review of the conclusions of law to determine whether the district court's interpretation of the law is correct.Gouras, 12.
We review a district court's denial of a motion in limine for an abuse of discretion. Henricksen v. State, 2004 MT 20, 46, 319 Mont. 307, 46, 84 P.3d 38, 46; Bramble v. State, 1999 MT 132, 16, 294 Mont. 501, 16, 982 P.2d 464, 16. The authority to grant or deny a motion in limine "rests in the inherent power of the court to admit or exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties." Hulse v. State, Dept. of Justice, Motor Vehicle Div., 1998 MT 108, 15, 289 Mont. 1, 15, 961 P.2d 75, 15. Thus, the district court has broad discretion to determine the admissibility of evidence, see Pula v. State, 2002 MT 9, , 308 Mont. 122, 15, 40 P.3d 364, 15, and we will not overturn the district court's ruling unless the party alleging error proves an abuse of discretion and resulting error. Henricksen, 46.
DISCUSSION
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)?
Zakovi argues that Officer Cohenour's questioning and the administration of field sobriety tests at the accident scene and hospital resulted in a seizure of his person, provided particularized suspicion to Officer Cohenour that Zakovi had committed a crime, and therefore constituted an investigative stop. He argues therefrom that Officer Cohenour was obliged to provide him the investigative stop advisory set forth in § 46-5-402(4), MCA (2001), and Officer Cohenour's failure to do so required that the evidence obtained from the investigation, that being the officer's notation of alcohol on Zakovi's breath, his observation of Zakovi's bloodshot and watery eyes, and the resulting field sobriety test results, must be suppressed pursuant to our holding in State v. Krause, 2002 MT 63, 309 Mont. 174, 44 P.3d 493.
Section 46-5-402(4), MCA (2001), provides:
Stop and frisk. A peace officer who has lawfully stopped a person under 46-5-401 or this section:
(4) shall inform the person, as promptly as possible
Page 1 2 3 4 5 6 Montana DUI Attorneys
DUI Lawyers
|