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State v. Snell11/23/2004
This Court issued its original Opinion in this case on September 14, 2004. See State v. Snell , 2004 MT 258, 323 Mont. 84, ___P.3d ___ ( Snell I ). Snell filed a Petition for Rehearing on September 24, 2004. The State filed its Objections to the Petition for Rehearing on September 30, 2004. Snell raised two issues in his Petition. First, he maintained this Court overlooked his affidavit wherein he made affirmative statements that constitute the necessary direct evidence of the constitutional infirmity of his prior Driving Under the Influence (DUI) convictions. Second, he argued this Court erroneously applied harmless error analysis in direct conflict with this Court's decision in State v. Crawford , 2003 MT 118, 315 Mont. 480, 68 P.3d 848. On November 4, 2004, we granted Snell's Petition for Rehearing and withdrew Snell I. We now replace Snell I with this superceding Opinion.
On October 28, 1999, an Information charged Kenneth Snell (Snell) with operating a motor vehicle while under the influence of alcohol or drugs, fourth offense, and driving while license suspended or revoked, a misdemeanor. A Missoula County jury returned a guilty verdict on both charges. The Fourth Judicial District Court sentenced Snell and entered judgment on September 19, 2002. Snell appeals. We affirm in part and reverse in part. We restate the following issues on appeal:
1. Whether the District Court erred when it denied Snell's motion to dismiss.
2. Whether the District Court properly admitted the preliminary alcohol screening test (PAST) evidence.
3. Whether the District Court properly allowed a law enforcement officer to offer testimony regarding Snell's intoxication level even though the officer was not listed as an expert witness prior to trial.
BACKGROUND
After leaving the Rock Creek Testicle Festival in the early morning hours of September 19, 1999, Kenneth Snell drove west on Interstate 90 between Turah and East Missoula with his wife, mother-in-law and another passenger. As he traveled eastbound on Interstate 90, Montana Highway Patrol Officer Danny Pat Harrison (Officer Harrison) observed Snell traveling too close behind another car and noticed he failed to dim his bright lights for oncoming traffic. Officer Harrison turned to follow Snell's car and watched it noticeably weave within the traffic lane. As a result of his observations of the traffic violations and weaving, Officer Harrison stopped Snell, and while questioning him in the patrol car, noted Snell smelled of alcohol and had bloodshot eyes. Snell told the officer he had been drinking beer. Officer Harrison read Snell the required PAST implied consent warning and Snell provided a breath sample on an Alco-Sensor III, also known as a PAST. A PAST is also referred to as a preliminary breath test, or PBT. He scored a .168, above the legal limit of .10. However, Snell refused to perform the field sobriety tests. Officer Harrison arrested Snell and transported him to the Missoula County jail for further processing.
Upon arrival at the detention center, Officer Harrison discovered there were five officers ahead of him waiting to process DUI drivers, which included the use of an in-station Intoxilyzer 5000. Officer Harrison estimated the wait to be at least an hour and a half, so they returned to the patrol car where Officer Harrison again read Snell the implied consent advisory and asked him to submit to another PAST on the Alco-Sensor III. Snell consented and scored a .148. The District Court later excluded this second test because the breath sample was seized unlawfully as only one PAST is allowed to be taken. Officer Harrison issued Snell two tickets and drove him home.
On October
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