 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Zakovi4/12/2005
xclusion.
The DWI Manual provides that an officer who suspects that an individual is driving under the influence of alcohol may administer an HGN test for the purpose of checking an individual's eyes for distinct nystagmus at maximum deviation (Maximum Deviation test), and for the onset of nystagmus prior to forty-five degrees (Forty-five Degree test), which the DWI manual finds probative of an individual's level of impairment. The record indicates that the District Court considered the DWI Manual's provisions, and examined a video demonstrating Officer Cohenour's deviation from the four second interval requirements in his usual administration of these two tests.
The District Court also considered evidence of Officer Cohenour's extensive experience. Officer Cohenour is an eleven-year police veteran who has handled more than 450 DUI cases in his career, and teaches field sobriety testing at the State Law Enforcement Academy. In light of Officer Cohenour's experience and training, the court found his testimony credible and concluded that his statement that valid HGN test results are obtainable despite deviation from the DWI manual's four second interval requirements, particularly because nystagmus is more apparent in the more inebriated suspect, was correct. In this regard, the District Court also noted Officer Cohenour's observation that Zakovi appeared more inebriated when questioned at St. Peter's then he had at the scene of the accident.
In light of the evidence presented herein of the validity of the HGN test results, which the District Court found credible, we conclude that the District Court did not abuse its discretion when it denied Zakovi's motion in limine and admitted the results.
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?
Zakovi contends that the State failed to establish that he consented to Officer Cohenour's request to withdraw a blood sample for the purposes of a BAC test in accordance with § 61-8-402, MCA (2001). Alternatively, Zakovi argues that, if he did consent to his blood being drawn, his consent did not extend to a BAC analysis on the sample. We address each argument in turn.
Zakovi's first argument cites § 61-8-402(1) and (4), MCA (2001), which provides:
(1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person's blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body.
(4) If an arrested person refuses to submit to one or more tests requested and designated by the officer as provided in subsection (2), the refused test or tests may not be given . . . .
Although Zakovi acknowledges that his consent to have a blood sample withdrawn is implied pursuant to § 61-8-402(1), MCA (2001), he nonetheless argues that Officer Cohenour's request for a sample violated § 61-8-402(4), MCA (2001), which allows an arrested person to refuse to submit to a test. Zakovi argues that he refused consent by questioning whether the test was necessary and admitting to drinking before the accident. He asserts that Officer Cohenour's three requests for a sample are determinative of his failure to consent.
We note, initially, that the parties disagree about who has the burden of proving that Zakovi's consent was voluntarily given under these statutes. Zakovi claims that the State had the burden of establishing the voluntariness of his consent, pursuant to our holdings in State v. Kir
Page 1 2 3 4 5 6 Montana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|