APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 2011-37 Honorable James A. Haynes, Presiding Judge
The opinion of the court was delivered by: Justice Jim Rice
Submitted on Briefs: September 19, 2012
Decided: December 21, 2012
Justice Jim Rice delivered the Opinion of the Court.
¶1 A jury convicted Stuart Laurence Lozon, Jr. (Lozon) of driving under the influence in the Twenty-First Judicial District Court. Lozon argues his conviction should be reversed because the District Court admitted the video of the Preliminary Alcohol Screening Test administration without sound over Lozon's objection. We reverse.
¶2 We consider the following issue on appeal:
¶3 Did the District Court abuse its discretion by partially denying Lozon's motion in limine to exclude video footage depicting administration of the PAST?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On July 6, 2010, Lozon was stopped by Officer Reichert after
failing to stop at a stop sign in Hamilton. After noting that Lozon's
movements were labored and he had glassy and bloodshot eyes, Officer
Reichert asked Lozon if he had been drinking. Lozon stated he had
two-and-a-half beers earlier in the evening. Officer Reichert asked
Lozon to perform several standardized field sobriety tests, including
the horizontal gaze nystagmus, which Lozon failed. Lozon agreed to
perform the Preliminary Alcohol Screening Test (PAST)*fn1
and he registered a blood alcohol level of .153. Officer
Reichert arrested Lozon and transported him to the Ravalli County
Detention Center where Lozon refused to perform additional field
sobriety tests and would not provide an Intoxilyzer 8000 breath sample. Lozon was charged with driving under the influence
(DUI) in violation of § 61-8-401, MCA (2009).
¶5 A jury found Lozon guilty of DUI in Hamilton City Court in March 2011. Lozon appealed to the Twenty-First Judicial District Court, Ravalli County, and a new trial was scheduled for August 2011. Before trial, Lozon filed a motion in limine requesting the court to redact all portions of the in-car or "field" video during which the PAST and the horizontal gaze nystagmus test were administered or discussed. Lozon also requested the court to redact a portion of the jail video in which Lozon refers to his PAST results. The State, through the City of Hamilton (State), opposed the motion. The District Court granted the motion to redact all footage of the administration and discussion of the horizontal gaze nystagmus and all references to the PAST results, but denied the request to redact all video footage of the administration of the PAST.
¶6 At the District Court trial, Officer Reichert testified, describing his professional training and experience. He explained generally the administration of the walk-and-turn and the one-leg stand, two standardized field sobriety tests. Officer Reichert then testified that Lozon's performance on both of these standardized field sobriety tests indicated impairment. No expert testimony about the PAST was offered. The in-car video was then played for the jury. The video showed Lozon performing the standardized field sobriety tests. The State switched to a blank screen during the horizontal gaze nystagmus portion of the video. The sound was muted during the portion of the video showing Officer Reichert administering the PAST. After the PAST was administered, the video depicted the results being shown to Lozon. He was told to sit on the bumper of the police cruiser and shortly afterwards was placed under arrest. The PAST results were not revealed to the jury.
¶7 During deliberations, the jury sent a question to the court asking, "[c]an we know the results of the field breathalyzer? Why/why not?" The court responded in writing: "No. The Montana Supreme Court generally limits the use of PAST ("field breathalyzer") results to an estimation of a person's alcohol ...