 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Otto11/30/2004
Duane Alan Otto pled guilty to a first offense violation of § 61-8-401, MCA, driving under the influence of alcohol ("DUI"). The plea was made pursuant to § 46-12-204(3), MCA, allowing Otto to appeal the District Court's denial of both his Motion to Dismiss and his Motion to Suppress. We affirm.
ISSUES
1. Did the District Court err when it denied Otto's pre-trial Motion to Dismiss on the grounds that the arresting officer did not have particularized suspicion to execute a traffic stop?
2. Did the District Court err when it denied Otto's pre-trial motion to suppress his breathalyzer results when the machine failed to print the results?
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of May 30, 2002, Officer Kelly Mantooth was patrolling westbound on U.S. 87 east of Lewistown. He noticed a vehicle in front of him--later determined to be Otto's--make a "drastic swerve" to the right and then to the left and straighten out. Mantooth testified that he thought the vehicle might have swerved to avoid a deer or something in the road, so he slowed down to investigate the area. He saw nothing, so he turned on his patrol car's video camera and accelerated to get closer to the vehicle.
Mantooth observed that the vehicle was a white pick-up truck and that it was now closely following a camper trailer. Mantooth did not observe any other questionable driving maneuvers, so he turned off his video camera. Shortly thereafter, the camper turned into a gas station, and the pick-up again swerved to the right and then left, crossing about a quarter of its width into the center turn lane. The pick-up then returned to the driving lane. Mantooth described the swerving as "drastic." He turned his patrol car video camera back on and activated his emergency lights to stop the pick-up. In response, the pick-up turned into a parking lot, one rear wheel hitting the curb as it did so.
Mantooth approached the pick-up and asked Otto if he had been drinking. Otto explained that he had been talking on a cellular telephone. Mantooth testified that Otto had red, watery eyes and that he was slurring his words. He also noticed the smell of alcohol on Otto's person. Mantooth asked Otto to bring his driver's license, registration and proof of insurance to Mantooth's patrol vehicle. Otto had some difficulty completing this request. He initially retrieved an expired insurance card and registration papers for a different vehicle. He returned to his vehicle for the correct paperwork and dropped his papers while getting out of the pick-up. Mantooth performed a Horizontal Gaze Nystagmus ("HGN") test on Otto. He then advised Otto that he was under arrest for driving under the influence of alcohol and transported him to the police department for further processing. Otto was also cited with violating § 61-8-302, MCA, for "careless driving, by crossing centerline and following too close[ly]," according to the citation.
Otto performed field sobriety tests at the police station and agreed to submit to a breathalyzer test. Mantooth testified that the LED readout on the testing instrument reflected a blood alcohol concentration of .159, but the printer attached to the testing instrument failed to print the result on the printout card. Officer Tom Moring, who is a certified operator of the testing instrument, also observed the .159 reading, and testified that, other than the failure to print the result, the instrument appeared to be functioning properly. Officer Moring printed a blank test card and transcribed the instrument readings onto it.
Otto filed a motion to dismiss on the grounds that Mantooth lacked particularized suspicion to stop his vehicle. He also filed
Page 1 2 3 4 5 Montana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|