Submitted on Briefs: January 24, 2018
District Court of the First Judicial District, In and For the
County of Lewis and Clark, Cause No. DDC-2015-211 Honorable
James P. Reynolds, Presiding Judge
Appellant: Greg Beebe, Beebe Law Firm, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Madison
L. Mattioli, Assistant Attorney General, Helena, Montana
Gallagher, Lewis and Clark County Attorney, Jeff Sealey,
Deputy County Attorney, Helena, Montana
Jeremiah Shea, Justice.
Defendant David Michael Zimmerman ("Zimmerman")
appeals the denials of his motion to suppress and motion in
limine and the grant of the State's motion in limine by
the First Judicial District Court, Lewis and Clark County. We
Issue One: Whether the District Court erred by denying
Zimmerman's motion to suppress the standard field
sobriety test results on the basis that the arresting officer
lacked particularized suspicion to administer them.
Issue Two: Whether the District Court erred by granting
the State's motion in limine to preclude Zimmerman from
introducing or referencing the arresting officer's
previous police reports for purposes of impeachment.
Issue Three: Whether the District Court erred by
allowing evidence of Zimmerman's prior DUIs to establish
the offense of Aggravated DUI.
We affirm in part, reverse in part, and remand for further
proceedings consistent with this Opinion.
AND FACTUAL BACKGROUND
At approximately 10:00 p.m. on June 16, 2015, while traveling
northbound on North Montana Avenue in Helena, Montana,
Highway Patrol Trooper Jeremy Lee ("Lee") clocked
Zimmerman traveling southbound at 60 miles-per-hour where the
speed limit changes from 50 to 35 miles per hour. Lee made a
U-turn and stopped Zimmerman for speeding. Once Lee observed
several indicators of intoxication after asking for
Zimmerman's license, registration, and proof of
insurance, the traffic stop ripened into a DUI investigation.
Lee's report and testimony stated: Zimmerman's breath
smelled of alcohol; his eyes were "pie-eyed, "
bloodshot, and watery; his movement was slow and labored; and
his speech was slurred. Lee asked Zimmerman to perform
standardized field sobriety tests, which Lee concluded
indicated that Zimmerman was intoxicated. Lee cited Zimmerman
for speeding and arrested him on suspicion of DUI. Zimmerman
refused a preliminary breath test at the scene, but he later
consented to a blood test. The blood test indicated Zimmerman
had a 0.088 blood alcohol content ("BAC").
On June 17, 2015, the State charged Zimmerman with DUI,
fourth or subsequent offense, in violation of §
61-8-401(1)(a), MCA. On June 16, 2016, the State filed a
Second Amended Information, charging Zimmerman with: Count
I-Aggravated DUI, a felony, in violation of §
61-8-465(1)(e), MCA; or, in the alternative, Count
II-Aggravated DUI per se (0.08 or higher BAC), a felony, in
violation of § 61-8-465(1)(e), MCA.
On November 17, 2015, Zimmerman moved for discovery of
Lee's other police reports, and the District Court
ordered the State to make available Lee's reports that
involved DUI arrests and investigations for six months before
and six months after Zimmerman's June 15, 2015 arrest.
On December 23, 2015, Zimmerman filed a motion to suppress
field sobriety tests based on newly discovered evidence in
twenty-nine DUI reports generated by Lee between January 18,
2015, and December 5, 2015. Zimmerman argued that Lee's
reports, which provided the basis for particularized
suspicion for all his DUI investigations, contained nearly
identical language, including the same typographical errors.
Zimmerman asserted these indistinguishable reports called
into question whether Lee made accurate ...