Submitted on Briefs: January 3, 2019
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
Appellant Martin W. Judnich, Judnich Law Office, Missoula,
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
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
AND PROCEDURAL BACKGROUND
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
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."
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.
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.
Hudon sought various items of discovery from the prosecution,
including Crime Lab records and information related to
Hudon's charge in this case. 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 ...