 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Van Kirk9/6/2001
icularized suspicion. Officer Kelly also observed Van Kirk's apparent desire to avoid him, Van Kirk's unusually slow speed, and Van Kirk's meandering from the edge of the road to across the center of the road. This constitutes substantially more suspicious behavior than that observed in Lafferty.
We conclude that, based on the totality of the circumstances, Officer Kelly had particularized suspicion to initiate an investigatory stop of Van Kirk's vehicle. Therefore, the District Court correctly denied Van Kirk's motion to suppress evidence based on his claim that Officer Kelly did not have sufficient grounds to stop his vehicle. The District Court is affirmed on this issue.
ISSUE 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?
Van Kirk argues that the District Court's failure to suppress evidence obtained after he demanded assistance of counsel warrants reversal of his convictions. The State counters that Van Kirk did not have a right to counsel before submitting to the breath test and field sobriety tests. The State argues further that Van Kirk's rights were not violated when Officer Kelly videotaped the breath test and field sobriety tests prior to giving his Miranda warnings.
The Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution provide that no person may be compelled to testify against himself in a criminal proceeding. The results of a breath test, however, are not self-incriminating communications. State v. Armfield (1984), 214 Mont. 229, 235, 693 P.2d 1226, 1229. Moreover, a person has no right to consult with counsel prior to deciding to take an alcohol breath test, because consent is deemed given as a matter of law. Section 61-8-402, MCA; State v. Strand (1997), 286 Mont. 122, 126, 951 P.2d 552, 553.
The privilege against self-incrimination does not extend to real or objective evidence. State v. Thompson (1989), 237 Mont. 384, 386, 773 P.2d 722, 723. In Thompson, this Court rejected the argument that an officer must read a DUI suspect his Miranda rights before audio-videotaping the suspect performing field sobriety tests. Thompson, 237 Mont. at 387, 773 P.2d at 724. A mere request that the suspect perform a series of sobriety tests, done without any interrogation of the suspect, does not constitute a custodial interrogation. Id.
Here, Officer Kelly arrested Van Kirk alongside the road and transported him to the police station in his patrol car. At the station, Officer Kelly read Van Kirk Montana's implied consent advisory form and asked Van Kirk to submit to a breath test. Van Kirk agreed to the breath test. Next, Officer Kelly requested that Van Kirk complete some field sobriety maneuvers while another officer videotaped his performance. Upon completing the field sobriety tests, Officer Kelly read Van Kirk his Miranda rights. After Van Kirk told Officer Kelly he wanted to speak with an attorney, Officer Kelly did not question Van Kirk.
We hold that Van Kirk was not denied his right to counsel, or his right against self-incrimination. Accordingly, the District Court is affirmed on this issue.
ISSUE 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 (HGN) test?
Van Kirk argues the District Court abused its discretion by allowing Officer Kelly to testify about Van Kirk's performance on the HGN test, because Officer Kelly was unable to meet the foundation requirements set forth in H
Page 1 2 3 4 5 6 7 8 9 10 Montana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|