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State v. Van Kirk9/6/2001
APPEAL FROM: District Court of the Third Judicial District, In and for the County of Deer Lodge, The Honorable Ted L. Mizner, Judge presiding.
Submitted on Briefs: February 23, 2001
On January 19, 1999, a jury convicted Marvin Van Kirk (Van Kirk) of four criminal offenses: driving under the influence of alcohol, failing to carry proof of vehicle registration, operating a motor vehicle without liability insurance, and driving a vehicle with a suspended or revoked driver's license. Van Kirk appeals his convictions to this Court. We affirm.
Van Kirk raises three issues on appeal:
1. Did the District Court correctly conclude that the arresting officer had a particularized suspicion to initially stop Van Kirk's vehicle?
2. Did the District Court properly conclude that Van Kirk did not have a right to counsel prior to submitting to a breath test or performing field sobriety maneuvers?
3. Did the District Court commit reversible error by allowing the arresting officer to testify about Van Kirk's performance on the horizontal gaze nystagmus test?
FACTUAL BACKGROUND
On October 3, 1997, at approximately 8:00 p.m., Officer John Kelly (Officer Kelly) was giving a person a ride from the police station to his vehicle parked at the First Quarter Restaurant in Anaconda, Montana. While in the First Quarter Restaurant's parking lot, Officer Kelly observed a truck pull into the parking lot to his right. The driver looked in Officer Kelly's general direction, and then immediately pulled back out of the parking area. It appeared to Officer Kelly that the driver of the truck wanted to get away from him, so he decided to investigate by following the vehicle.
While following the truck, Officer Kelly observed that its speed was only seven to ten mph in a twenty-five mph zone. Officer Kelly also noticed that the driver was continuously watching him in the rearview mirror. Officer Kelly watched the vehicle shift from the edge of the roadway to the mid-point and across it, several times. On at least one occasion, the vehicle would have impeded any oncoming traffic. Based on his observations, Officer Kelly decided to initiate a traffic stop.
Officer Kelly approached the vehicle on foot after initiating the stop. When Van Kirk rolled down his window, Officer Kelly detected the moderate odor of an alcoholic beverage and noticed that Van Kirk's eyes were bloodshot. Officer Kelly also observed that there was a screwdriver, rather than a key, in the ignition of the truck. Officer Kelly asked to see Van Kirk's driver's license, but Van Kirk replied he did not have one. Officer Kelly later confirmed through the dispatcher that Van Kirk's license was revoked. Officer Kelly also asked to see the vehicle registration and proof of insurance. Van Kirk responded to this by handing him a map. Officer Kelly then requested that Van Kirk step out of his truck and perform some field sobriety tests, but Van Kirk declined because it was dark and the road surface was rough. Officer Kelly responded that Van Kirk could perform the tests at the police station under better conditions.
Officer Kelly decided to place Van Kirk under arrest and transport him to the police station. Upon reaching the police station, Officer Kelly read Van Kirk Montana's implied consent advisory form and asked him to submit to a breath test. Van Kirk agreed to the test and he registered a blood alcohol level of .115. Upon completion of the breath test, Officer Kelly requested that Van Kirk perform some field sobriety tests. Another officer videotaped Van Kirk's performance of the field sobriety maneuvers. Officer Kelly scored Van Kirk
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