State v. Flaherty , 327 Mont. 168 ( 2005 )

No. 04-273
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 122
STATE OF MONTANA,
Plaintiff and Respondent,
v.
PATRICK EUGENE FLAHERTY,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. ADC 2003-129
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Wendy Holton, Attorney at Law, Helena, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Mark W. Mattioli,
Assistant Attorney General, Helena, Montana; Robert J. Wood, Assistant
City Attorney, Helena, Montana
Submitted on Briefs: February 2, 2005
Decided: May 17, 2005
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Patrick Eugene Flaherty appeals from a Decision and Order of the Montana First
Judicial District Court denying his motion to suppress the results of an Intoxilyzer 5000
breath test. We affirm.
ISSUE
¶2 Did the District Court abuse its discretion when it denied Flaherty’s motion to
suppress the results of the Intoxilyzer 5000 test?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On February 22, 2003, at approximately 2:00 a.m., Helena Police Officer Derek
Wakefield observed a vehicle stopped partially in the roadway with its brake lights engaged.
Wakefield discovered Flaherty behind the wheel, apparently asleep, with his foot on the
brake pedal. Flaherty awakened and had difficulty putting the vehicle in park.
¶4 Wakefield observed that Flaherty appeared to be confused, had red eyes, and smelled
of alcohol. After conducting field sobriety tests and a preliminary alcohol screening test
(PAST), Wakefield arrested Flaherty, and placed him in handcuffs in the back seat of
Wakefield’s patrol vehicle.
¶5 Wakefield drove Flaherty to the Lewis and Clark County Detention Center, where
Flaherty submitted to a breath test using an Intoxilyer 5000 breath analysis instrument. The
Intoxilyer measured Flaherty’s blood alcohol content (BAC) at .252. Flaherty was charged
with driving under the influence of alcohol (first offense), pursuant to § 61-8-401, MCA, and
operating a noncommercial vehicle with a BAC of .10 or more (“DUI per se”), pursuant to
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§ 61-8-406, MCA (2001).
¶6 Flaherty was tried in Helena City Court, where he was convicted of DUI per se,
pursuant to § 61-8-406, MCA (2001), and acquitted of driving under the influence of alcohol,
pursuant to § 61-8-401, MCA. Flaherty appealed to the District Court for a trial de novo,
and moved to suppress the results of the Intoxilyzer test. The District Court denied his
motion to suppress by Decision and Order issued October 21, 2003. Flaherty pled guilty to
DUI per se, reserving his right to appeal the denial of his suppression motion. From this
denial, Flaherty timely appeals.
STANDARD OF REVIEW
¶7 The standard of review for evidentiary rulings is whether the district court abused its
discretion. State v. Fenton, 1998 MT 99, ¶ 11, 288 Mont. 415, ¶ 11, 958 P.2d 68, ¶ 11
(citations omitted).
DISCUSSION
¶8 Did the District Court abuse its discretion when it denied Flaherty’s motion to
suppress the results of the Intoxilyzer 5000 test?
¶9 Flaherty argues that the District Court erred when it denied his motion to suppress the
results of the Intoxilyzer test because the test was not administered in compliance with Rule
23.4.212(7), A.R.M., which requires breath analyses to be performed according to the
operational checklist for the particular analysis instrument being used. Flaherty claims the
operational checklist required a 15-minute observation period, but he was at the Detention
Center for only 12 or 13 minutes before the test was administered. He argues that prior to
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his arrival, Wakefield could not have closely observed him to ensure that he did not put
anything in his mouth, nor belch or regurgitate, because Wakefield was otherwise occupied
driving his patrol vehicle while Flaherty was in the back seat, behind a partition. Flaherty
also claims that after they arrived at the Detention Center, Wakefield spent several minutes
at the opposite end of the hallway from where Flaherty was sitting, and actually left the room
at one point. Flaherty notes that he was left in the company of a jailer, but argues that there
is no evidence that the jailer was aware of the observation requirement. Thus, he concludes,
he was not observed for 15 minutes prior to the administration of the Intoxilyzer test in such
a manner as to comply with the requirements of the applicable A.R.M., and that this
foundational failure should have precluded the State from entering the Intoxilyzer results into
evidence.
¶10 The State responds that most of Flaherty’s detention was recorded on videotape, and
that it is clear from the tapes that Flaherty was always in the presence of police and/or
detention officers. The State points out that while Flaherty is visible on the Detention
Center’s videotape for 12 or 13 minutes prior to the Intoxilyzer test, Wakefield’s patrol car
video indicates that after arrival at the Detention Center, they remained in the car for a few
minutes while waiting for another DUI suspect to be processed. In addition, the walk from
the vehicle to the location where Flaherty appears on the Detention Center’s video took a
minute or two. Thus, the State maintains that Flaherty was under observation for well over
15 minutes before the test was administered.
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¶11 Flaherty directs our attention to State v. Utz (Idaho Ct. App. 1993), 867 P.2d 1001,
in which the Idaho Court of Appeals held that an officer who leaves a suspect with jailers
during the 15-minute observation period did not meet the foundational requirements for the
test results to be admissible as evidence. He further points to several cases from Tennessee,
in which that state’s court held that the observation period must be strictly followed. See,
e.g., State v. McCaslin (Tenn. Crim. App. 1994), 894 S.W.2d 310 (only 16 minutes of the
20-minute observation period occurred at the police station after the suspect was transported
in a patrol car where a plexiglass barrier separated him from the officer); State v. Korsakov
(Tenn. Crim. App. 2000), 34 S.W.3d 534 (while “an unblinking gaze” is not required, the
officer must be watching the defendant rather than performing other tasks).
¶12 The State responds that the Tennessee cases ignore the practical realities of law
enforcement, and that one of the functions of the video equipment is to allow an officer to
perform such tasks as pat-downs and booking without jeopardizing the officer’s effort to
obtain a timely breath test result. The State further asserts that many other state courts have
considered this issue and do not require as stringent a standard as does Tennessee. See, e.g.,
Nasser v. State (Ind. Ct. App. 1995), 646 N.E.2d 673 (officer left handcuffed suspect
unattended in back of patrol vehicle for several minutes during the deprivation period);
Glassman v. State, Dept. of Revenue (Colo. Ct. App.), 719 P.2d 1096 (officer completed
paperwork and admitted he took his eyes off suspect “for a second” while working on
forms); McKown v. Director of Revenue (Mo. Ct. App.), 908 S.W.2d 178 (officer watched
suspect in his peripheral vision while he completed other tasks).
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¶13 The District Court reviewed the videotapes from the Detention Center and the patrol
car in determining whether the 15-minute observation period was properly observed. The
court found that Wakefield observed Flaherty continually from the time he approached
Flaherty’s car until he placed Flaherty in the back seat of his patrol vehicle, and that while
Flaherty was in the back seat, Wakefield observed him via the rear view mirror. The court
further found that upon his arrival at the Detention Center, Flaherty was under observation
by at least one detention officer, as well as by videotape. Noting that the entire time from
the stop until Flaherty took the breath test well exceeded 15 minutes, the District Court
concluded that the test complied with the observation requirements of the operational
checklist referenced in Rule 23.4.212(7), A.R.M.
¶14 Every defendant is entitled to the protection of the procedural safeguards that are
contained in Montana’s administrative rules. Fenton, ¶ 16. However, as we noted recently
in City of Missoula v. Lyons, 2004 MT 255, ¶ 17, 323 Mont. 67, ¶ 17, 97 P.3d 1120, ¶ 17,
Rule 23.4.212(7), A.R.M., requires that the breath analysis be performed according to an
operational checklist, and the operational checklist has changed since Fenton was decided.
Our review of the record indicates that this newer version of the operational checklist was
in use at the time of Flaherty’s arrest. We know this because the operational checklist from
Flaherty’s arrest, signed by Wakefield, is part of the record and was, in fact, submitted to us
by Flaherty as a supplemental exhibit to his Brief. At the time of Flaherty’s arrest, the
checklist in use did not require that the subject be observed for 15 minutes, Fenton, ¶ 15, but
rather required “no oral ingestion of any material,” as we pointed out in Lyons, ¶ 17.
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¶15 The operational checklist requires that during the 15 minutes prior to testing, no oral
ingestion of any material occurs; that the suspect be instructed to deliver a proper sample;
and that the suspect be observed during sample delivery. We held in Lyons that the
operational checklist does not require that the test administrator keep his eyes on the subject
at all times, but requires observation during the actual testing. Lyons, ¶ 15. In Flaherty’s
situation, it is undisputed that he was observed during the actual testing, and the evidence
clearly demonstrates that he did not orally ingest any material during the 15 minutes prior
to the Intoxilyzer test.
¶16 We affirm district court decisions which reach the correct result regardless of the
court’s reasoning in reaching the decision. Phillips v. City of Billings (1988), 233 Mont. 249,
252, 758 P.2d 772, 774. Although the District Court based its conclusions on the premise
that the operational checklist, and by extension the applicable A.R.M., required the suspect
to be observed for 15 minutes prior to the Intoxilyzer test, the result reached is nonetheless
correct in light of the current requirements of the operational checklist. Thus, the District
Court did not abuse its discretion when it denied Flaherty’s motion to suppress the result of
the Intoxilyzer test.
CONCLUSION
¶17 For the foregoing reasons, we affirm the District Court.
/S/ PATRICIA O. COTTER
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We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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