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State v. Hudon

Supreme Court of Montana

February 5, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
GEORGE HUDON, Defendant and Appellant.

          Submitted on Briefs: January 3, 2019

          APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC-2017-155 Honorable Jeffrey Langton, Presiding Judge

          For Appellant Martin W. Judnich, Judnich Law Office, Missoula, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana

          Jim Rice Justice

         ¶1 George Hudon (Hudon) appeals his conviction of driving under the influence of alcohol or drugs, in violation of § 61-8-401, MCA (DUI), after jury trial in the Twenty First Judicial District Court, Ravalli County. We affirm, and restate the issues as follows:

1. Did the District Court err by denying Hudon's motion to exclude evidence because of an asserted discovery violation by the State?
2. Did the District Court err by granting the State's motion in limine to prevent Hudon from arguing the State had not fulfilled its discovery obligations, and err by disallowing Hudon's discussion of the subject of the motion in limine in his closing argument?
3. Did the District Court err by allowing the State to amend the information less than five days before trial?
4. Did the District Court err by admitting a State exhibit at trial when the redacted version of the exhibit was not provided to Hudon until the morning of the first day of trial?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 On July 23, 2017, at approximately 12:30 a.m., Ravalli County Sheriff's Deputies Jason Liechty (Liechty) and Robert McGarvan (McGarvan) were patrolling in the Florence area near One Horse Lane when they witnessed a vehicle swerve from its lane of travel into the oncoming lane, and back again. The deputies initiated a stop of the vehicle, whose driver was Hudon.

         ¶3 Upon making contact, McGarvan smelled alcohol on Hudon and noticed he had bloodshot eyes and would not make eye contact. McGarvan described Hudon as "very fidgety," and stated that he kept reaching between his legs and under his car seat. Hudon admitted he had been drinking and asked both to go home and go to jail, because "he knew he was in trouble." When Leichty asked Hudon how much he had to drink, Hudon responded, "Quite a bit."

         ¶4 The deputies conducted two tests to determine whether Hudon was under the influence of alcohol or drugs-the Horizontal Gaze Nystagmus (HGN) test and the walk and turn test. Hudon exhibited six out of six indicators of impairment on the HGN test. On the walk and turn test, Hudon demonstrated six out of eight indicators of impairment, including loss of balance, inability to walk heel to toe, stepping off the line, making an improper turn, and stopping in the middle of the test. Hudon refused to do the one-leg stand test. Hudon's preliminary breath test yielded a result of 0.143 BAC. Hudon refused further testing.

         ¶5 Leichty arrested Hudon for DUI and was granted a telephonic search warrant for Hudon's blood, which was drawn at Marcus Daly Memorial Hospital and sent to the Montana State Crime Laboratory (Crime Lab) for processing. Blood testing revealed that Hudon's blood alcohol content was 0.284 BAC. Because Hudon had three prior DUI convictions, he was charged with felony DUI, for a fourth offense.

         ¶6 Hudon sought various items of discovery from the prosecution, including Crime Lab records and information related to Hudon's charge in this case.[1] The prosecutor, Angela Wetzsteon, forwarded Hudon's discovery requests to the Crime Lab's toxicologist who analyzed Hudon's blood. By email, toxicologist Doug Lancon informed Wetzsteon that the Crime Lab's quality control manager, Emily Wemlinger (Wemlinger), was responsible for handling discovery requests and provided her contact information. Administrator Scott Larson further advised that certain items requested by Hudon required a court order to obtain, and that at least one of Hudon's attorneys was aware of this because he had requested this information in the past and knew the process. Wetzsteon then emailed Hudon's attorneys, advising them "the information held by the [C]rime [L]ab is mutually available to the defense just as it is to the state," and that they needed to directly contact Wemlinger for the information sought. Wetzsteon ...


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