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State v. Flaherty5/17/2005
Submitted on Briefs: February 2, 2005
Patrick Eugene Flaherty appeals from a Decision and Order of the Montana First Judicial District Court denying his motion to suppress the results of an Intoxilyzer 5000 breath test. We affirm.
ISSUE
Did the District Court abuse its discretion when it denied Flaherty's motion to suppress the results of the Intoxilyzer 5000 test?
FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2003, at approximately 2:00 a.m., Helena Police Officer Derek Wakefield observed a vehicle stopped partially in the roadway with its brake lights engaged. Wakefield discovered Flaherty behind the wheel, apparently asleep, with his foot on the brake pedal. Flaherty awakened and had difficulty putting the vehicle in park.
Wakefield observed that Flaherty appeared to be confused, had red eyes, and smelled of alcohol. After conducting field sobriety tests and a preliminary alcohol screening test (PAST), Wakefield arrested Flaherty, and placed him in handcuffs in the back seat of Wakefield's patrol vehicle.
Wakefield drove Flaherty to the Lewis and Clark County Detention Center, where Flaherty submitted to a breath test using an Intoxilyer 5000 breath analysis instrument. The Intoxilyer measured Flaherty's blood alcohol content (BAC) at .252. Flaherty was charged with driving under the influence of alcohol (first offense), pursuant to § 61-8-401, MCA, and operating a noncommercial vehicle with a BAC of .10 or more ("DUI per se"), pursuant to § 61-8-406, MCA (2001).
Flaherty was tried in Helena City Court, where he was convicted of DUI per se, pursuant to § 61-8-406, MCA (2001), and acquitted of driving under the influence of alcohol, pursuant to § 61-8-401, MCA. Flaherty appealed to the District Court for a trial de novo, and moved to suppress the results of the Intoxilyzer test. The District Court denied his motion to suppress by Decision and Order issued October 21, 2003. Flaherty pled guilty to DUI per se, reserving his right to appeal the denial of his suppression motion. From this denial, Flaherty timely appeals.
STANDARD OF REVIEW
The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Fenton, 1998 MT 99, 11, 288 Mont. 415, 11, 958 P.2d 68, 11 (citations omitted).
DISCUSSION
Did the District Court abuse its discretion when it denied Flaherty's motion to suppress the results of the Intoxilyzer 5000 test?
Flaherty argues that the District Court erred when it denied his motion to suppress the results of the Intoxilyzer test because the test was not administered in compliance with Rule 23.4.212(7), A.R.M., which requires breath analyses to be performed according to the operational checklist for the particular analysis instrument being used. Flaherty claims the operational checklist required a 15-minute observation period, but he was at the Detention Center for only 12 or 13 minutes before the test was administered. He argues that prior to his arrival, Wakefield could not have closely observed him to ensure that he did not put anything in his mouth, nor belch or regurgitate, because Wakefield was otherwise occupied driving his patrol vehicle while Flaherty was in the back seat, behind a partition. Flaherty also claims that after they arrived at the Detention Center, Wakefield spent several minutes at the opposite end of the hallway from where Flaherty was sitting, and actually left the room at one point. Flaherty notes that he was left in the company of a jailer, but argues that there is no evidence that the jailer was aware of the observation requiremen
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