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State of Montana v. Brian Elien Holm

March 5, 2013

STATE OF MONTANA, PLAINTIFF AND APPELLEE,
v.
BRIAN ELIEN HOLM, DEFENDANT AND APPELLANT.



APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-520 Honorable Robert L. Deschamps, III, Presiding Judge

The opinion of the court was delivered by: Brian Morris

Submitted on Briefs: December 19, 2012

Decided: March 5, 2013

Filed:

Clerk

Justice Brian Morris delivered the Opinion of the Court.

¶1 Brian Holm (Holm) appeals his conviction in the Fourth Judicial District, Missoula County. Holm alleges that the District Court denied Holm's constitutional right to effective assistance of counsel when the District Court denied Holm's request for substitution of counsel and for a continuance eight days before trial so that Holm could retain private counsel. We affirm.

¶2 Holm presents the following issues on appeal:

¶3 Whether the District Court abused its discretion by finding that Holm's counsel was providing effective assistance of counsel?

¶4 Whether the District Court abused its discretion by failing to grant a continuance eight days before trial to allow Holm to retain private counsel?

PROCEDURAL AND FACTUAL BACKGROUND

¶5 Holm was driving northbound on Brooks Street in Missoula, Montana, around 10:45 pm on November 9, 2010. Holm's vehicle veered into the southbound lane and onto the sidewalk on the southbound side of Brooks Street. Three men, including Brian Beaver (Beaver), were walking together on the sidewalk. Holm's vehicle hit Beaver from behind. The force from the vehicle threw Beaver into the side of a building. Holm's vehicle crashed into a light post approximately 50 feet past where his vehicle had hit Beaver. Emergency responders took Beaver to Community Hospital where he died from severe blunt force trauma to his head.

¶6 Police Officers William Tucker and Patrick Erbacher responded to the accident scene. Officer Tucker spoke with Holm. Holm's speech was slurred, his eyes were bloodshot, and Officer Tucker smelled the odor of alcohol on Holm's breath. Officer Tucker evaluated the accident scene. The roads were clear and dry. Officer Erbacher looked for skid marks that would indicate that Holm had tried to stop his vehicle. Officer Erbacher found no skid marks. Police Detective J.C. Denton conducted an investigation at the accident scene. Detective Denton found liquid in a to-go cup in Holm's vehicle that contained 6% alcohol concentration. Holm later admitted that the to-go cup contained Black Velvet and Coke.

¶7 Emergency responders took Holm to St. Patrick's Hospital. Officer Tucker administered an HGN test on Holm at the hospital. Holm received the maximum score of six. This score indicated that Holm was under the influence of alcohol. Officer Tucker then received Holm's consent to conduct a blood draw. The blood draw revealed that Holm had a blood alcohol content of 0.1. Holm also had 0.14 milligrams of Ambien in his blood. Ambien is a prescription sleep aid.

¶8 A forensic toxicologist, Sara Hansen (Hansen), testified at Holm's trial that 0.14 milligrams falls within the therapeutic range for Ambien. She further testified that a person with that quantity of Ambien in their system could fall asleep while driving. Ambien contains a warning label that a person should not take it with alcohol. Hansen testified that alcohol combined with Ambien would increase a person's impairment.

ΒΆ9 Holm also had two other drugs in his blood. Holm had 0.14 milligrams of an antidepressant, Venlafaxine, in his blood. Hansen testified that a person generally should not take antidepressants with alcohol because they can cause greater impairment in a person than alcohol alone. Holm also had 0.02 milligrams of Hydrocodone, a narcotic painkiller, in his blood. Hansen testified that 0.02 milligrams falls below the therapeutic level, but still represents a sufficient quantity to ...


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