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State v. Van Kirk9/6/2001
four points out of eight on the walk-and-turn test because Van Kirk missed touching his heel to toe twice on each direction, and took too many steps prior to and after his turn. Van Kirk performed well on the one-leg-stand test. Finally, Officer Kelly conducted the horizontal gaze nystagmus (HGN) test upon Van Kirk. Officer Kelly scored Van Kirk four points out of six on this test.
Upon completing the field sobriety test, Officer Kelly read Van Kirk his Miranda rights. Van Kirk informed Officer Kelly that he wanted to speak with an attorney, and Officer Kelly did not thereafter question Van Kirk. Van Kirk was charged with four offenses: (1) driving under the influence of alcohol, a misdemeanor; (2) failing to carry proof of vehicle registration, a misdemeanor; (3) operating a motor vehicle without liability insurance in effect; and (4) driving a vehicle with a suspended or revoked driver's license. On July 13, 1998, a justice court jury convicted Van Kirk of all four offenses, and he appealed to the District Court.
Van Kirk filed several pretrial motions and supporting briefs in District Court, including a motion to suppress evidence and a motion to dismiss the charges against him. Van Kirk contended that Officer Kelly lacked particularized suspicion to initiate an investigative stop. In addition, Van Kirk asserted that when Officer Kelly did not allow him to speak to an attorney prior to giving a breath sample or performing field sobriety maneuvers, Van Kirk was denied his right to counsel. The District Court denied these motions.
On January 19, 1999, the District Court held a jury trial on this matter. During trial, when the State asked Officer Kelly how Van Kirk scored on the HGN test, Van Kirk objected on the grounds that the State had not laid sufficient foundation for the testimony. Officer Kelly testified that he was certified to administer the HGN test, and that he properly administered the test. Officer Kelly also testified that he has a bachelor's degree in medical technology and had worked as a lab supervisor and technician at Montana State Hospital. The District Court overruled Van Kirk's objection, and allowed Officer Kelly to testify from his training and experience that there is a correlation between alcohol consumption and nystagmus. Officer Kelly then explained how Van Kirk scored on the HGN test. The jury convicted Van Kirk of all four offenses. He now appeals.
STANDARD OF REVIEW
We review a district court's denial of a motion to suppress to determine whether its findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Hatler, 2001 MT 38, 5, 304 Mont. 211, 5, 19 P.3d 822, 5.
We review a district court's evidentiary rulings for an abuse of discretion. State v. Gustafson, 2000 MT 364, 14, 303 Mont. 386, 14, 15 P.3d 944, 14.
ISSUE 1
Did the District Court correctly conclude the arresting officer had a particularized suspicion to initially stop Van Kirk's vehicle?
Van Kirk argues the arresting officer did not have adequate particularized suspicion to initially stop his truck, that all the resulting evidence against him should be suppressed as fruit of an illegal seizure, and therefore the charges against him must be dismissed. The State counters that Van Kirk's apparent attempts to avoid the arresting officer, coupled with his driving at a slow rate of speed and crossing from the edge of the road across the middle of the road multiple times, combined to provide sufficient particularized suspicion to make an investigative stop of Van Kirk's vehicle. We agree.
The Fourth Amendment to the United States Constitution
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