I N THE SUPREME COURT O THE STATE OF MONTANA
F
1989
THE CITY OF MISSOULA,
P l a i n t i f f and R e s p o n d e n t ,
-VS-
CASEY FOREST,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e J o h n S . Henson, J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
I a n C h r i s t o p h e r o n , M i s s o u l a , Montana
For Respondent :
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
& J u d y Wang, C i t y A t t o r n e y ' s O f f i c e , M i s s o u l a , Montana
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the Fourth Judicial District
Court, Missoula County, Montana. Defendant/appellant, Casey
Forest, was found guilty by the District Court, after a jurv
trial, of Driving Under the Influence of Alcohol, a
misdemeanor, in violation of S 61-8-401, MCA. We affirm.
On July 22, 1987, appellant joined friends in a
birthday celebration at Connie's Lounge. After consuming a
few beers, appellant and two members of the group left the
bar, intending to drive home. The two friends rode a
motorcycle, while appellant drove his Nissan truck. The
vehicles proceeded south on Higgins Avenue at a high rate of
speed, weaving between cars as they sped down the street.
Near the intersection of Sixth and Higgins avenues, the
motorcycle veared into the rearside panel of appellant ' s
pickup, causing the motorcycle to spin and slide. Both
riders fell from the motorcycle and were later taken by
ambulance to a hospital. Appellant, uninjured in the
accident, drove to a nearby parking lot.
Missoula Police Officer Clifford LePiane investigated
the collision. He testified at trial that upon arrival at
the scene, he observed the appellant standing next to his
truck in the parking lot. Officer LePiane described
appellant as having a flushed face, red watery eyes, somewhat
slurred speech, and a moderate smel-1 of alcohol on his
breath. In addition, appellant exhibitied a boisterous and
argumentative behavior. Witnesses identified appellant as
having heen involved in the accident and described the
driving as "big time reckless." Officer LePiane arrested
appellant for driving under the influence of alcohol, a
violation of S 61-8-401, MCA.
At the Missoula Police Department, appellant was
immediately advised of his rights under Montana's Implied
Consent Law. Appellant refused to take the blood-alcohol
test requested by Officer LePiane. However, upon completion
of the "booking" procedure, appellant withdrew his refusal
and consented to the test. Results of the Intoxilizer 5000
test revealed a blood-alcohol content of . 1 3 7 .
The entire procedure, including initial refusal and
later consent to administer the test, was recorded on video
tape. However, at one point during the procedure, police
officers turned off the video camera to allow an independent
accident investigator to obtain information from the
appellant. Because of the interruption, a blank portion
followed by a brief segment of a prior unrelated DUI appeared
on the video tape. After the information was obtained,
police restarted the video camera, administered Miranda
warnings and continued the booking procedures.
On November 13, 1987, prior to trial at the Municipal
Court level, respondent filed a separate alternative charae
of Driving With a Blood-Alcohol Content over .lo, "per se," a
violation of S 61-8-406, MCA. On December 15, 1987,
appellant was convicted of the DUI charge. Appellant
appealed to the District Court.
Prior to trial in the District Court, appellant filed
numerous motions. While most were denied, the District Court
Judge granted a motion to suppress the portion of the video
tape prior to the administration of Miranda warnings. The
lower court ruled that while evidence of appellant Is refusal.
to take the breathalizer test was admissible, other
statements made prior to receiving the Miranda warninqs were
protected communications within the Fifth Amendment. The
evidence of appellant's refusal could be introduced hx7
alternative means.
On May 2, 1988, after a jury trial consolidated the two
charges, the District Court entered judgment finding
appellant guilty on the DUI charge. Appellant appeals to
this Court, presenting four issues for our review:
1. Did probable cause exist to arrest appellant for
driving under the influence of alcohol?
2. Was it a violation of the United States and Montana
Constitutions to admit evidence of appellant I s refusaL
to take the Intoxilizer 5000 test under Montana's
Implied Consent Law?
3. b a it error to admit the video tape?
7s
4. Upon appeal from the Municipal Court conviction,
does the District Court retain jurisdiction and ability
to convict on the alternative charges of Driving Under
the Influence and Driving wi.th a Rl-ood Alcohol over
.lo, "per se?"
ISSUE I
Appellant argues Officer LePiane lacked probable cause
to arrest on the DUI charge, contending that absent field
sobriety tests, no evidence existed to show the requisite
impairment of facilities. Section 61-8-401, MCA. However,
our review of the record leads to a contrary conclusion.
Probable cause must be based on an assessment of all
relevant circumstances, evaluated in light of the knowledge
of a trained law enforcement officer. State v. Ellinger
(Mont. 1986), 725 P.2d 1201, 43 St.Rep. 1778. More than mere
suspicion, probable cause requires facts and circumstances
sufficient to warrant a reasonable person to believe that a
suspect has committed an offense. State v. Lee (Mont. 1988),
754 P.2d 512, 45 St.Rep. 903. As our prior holdings
demonstrate, probable cause is a concept encompassing a
spectrum of varying circumstances.
In the instant case, the record is replete with
evidence supporting a DUI offense. The accident was cause by
reckless and dangerous conduct, resulting in serious
injuries. Officer LePiane observed appellant's bloodshot
eyes and flushed complexion, and smelled a moderate odor of
alcohol on appellant's breath. In addition, based on prior
dealings with appellant, Officer LePiane recollected
appellant's behavior as calm and polite, a dramatic change
from the argumentative behavior exhibited after the accident.
Certainly, field sobriety tests are a tool which can
assure the officer that the person is in fact under the
effect of intoxicating beverages. However, the absence of
such tests do not fatally flaw the probable cause
determination. As discussed above, sufficient evidence
existed to establish probable cause for arrest. We find no
merit in appellant's first contention.
ISSUE I1
This Court has long adhered to the rule that neither
the results of the breathalizer test nor a defendant's
refusal to submit to the breathalizer test are communications
protected by the the Fifth Amendment. State v. Jackson
(1983), 206 Mont. 338, 672 P.2d 255, citing South Dakota v.
Neville (1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 694;
State v. Armfield (1984), 214 Mont. 229, 693 P.2d 1226.
Therefore, our discussion of the principle will remain brief.
As a part of the program to deter drinkers from
driving, Montana has enacted an Implied Consent Law. The
statute declares that any person who operates a motor vehicle
within the State shall be deemed to have given his consent to
a chemical test to determine the alcohol content of his blood
if arrested by a police officer for driving under the
.influence of a?-cohol. Section 61-8-40? 1 1 ) , MCA. The test is
not compelled, yet refusal results in attendant penalties,
including an immediate seizure of one's driver's license,
S 61-8-402(3), MCA, and the admissibility of the refusal upon
trial for DUI. Section 61-8-404(2), MCA. Appellant contends
the statute cannot override Miranda guarantees. As such,
appellant argues evidence of his initial refusal, prior to
Miranda warnings, must be suppressed. We disagree.
In discussing the origins of the rights protect.ed by
Miranda warnings, we stated:
The Massiah, Escobedo and Miranda
decisions link the Fifth ~mendment
privilege to the Sixth Amendment's right
to counsel. Escobedo and Miranda sought
to preserve the privilege against self-
incrimination through protection of
defendant from the coercive aspects of
custodial interrogation ... Massiah
sought similar protections where
uncounseled and undisclosed post-
indictment non-custodial interrogation
elicited incriminating statements .. .
All three decisions characterize the
right to assistance of counsel as a means
of preserving defendant's privilege
against self-incimination --his absolute
right to refuse to testify or
communicate. (Citations omitted.)
Armfield, 693 P.2d at 1229. The Fifth Amendment affords no
protection against the prosecutor's use of fingerprints,
measurements, handwriting, voice identification or blood
tests; all constitute "physical or real" evidence. Schmerber
v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d
908. Sirnil-arly, appellant's claim of constitutional
prohibition against self-incrimination by the admission of
his refusal to submit to the blood-alcohol test is foreclosed
by the Neville decision, which defined the refusal as
non-testimonial conduct. Further, the statements made prior
to Miranda warnings which fel.1 outside the scope of the
Implied Consent Law were properly suppressed by the District
Court and cured any potential Miranda violations.
ISSUE 111
As stated earlier in our opinion, the video tape
recording of appellant's DUI booking was briefly interrupted
by an independent accident investigator. Appellant contends
the video recording's interruption and the revealed segment
of an unrelated DUI booking constitutes improper editing of
the video.
The trial court judge has wide discretion in conducting
courtroom procedures, and in determining adequacy of
foundation for admission of evidence. State v. Austad
(1982), 197 Mont. 70, 641 P.2d 1373. Throughout our review,
we remain ever mindful of this standard.
State v. Warwick (1972), 158 Mont. 531, 494 P.2d 627,
remains the seminal case regarding the admission of
recordings requiring:
"(1) a showing that the recording device
was capable of taking testimony,
(2) a showing that the operator of the
device was competent,
(3) establishment of authenticity and
correctness of the recording,
(4) a showing that changes, additions,
or deletions have not been made,
(5) a showing of the manner of the
preservation of the recording,
(6) identification of the speakers,
(7) a showing that the testimony
elicited was voluntarily made without a n y
kind of inducement."
Warwick, 4 9 4 P.2d at 6 3 3 , citing 5 8 A.L.R.2d 1204,
Admissibility of Sound Recordings in Evidence, 9 2, pp. 1 0 2 7 ,
1028. The record reveals testimony el-icited to satisfy the
foundation requirements.
Q Was a video tape taken of Casey
Forest's DUI booking?
A Yes, it was. . .
(2 Is the Missou3.a City video equipment
capable of making a visual and audible
record?
A Yes, it is.
Q Who operated the test?
A Officer Gunter.
Q Is Officer Gunter capable of operating
Missoula's video equipment?
A Yes, he is.
Q Officer LePiane, I am handing you what
has been marked for identification
purposes as Exhibit No. 1. Do you
recognize it?
A Yes, I do ...
this is the
audio-video tape of the Casey Forest D I J I
booking procedure ...
Q How is it identified?
A It's marked with a D-48. And it's
also logged into our records under that
number.
Q Where has it been stored since July
22, 1987?
A In the police evidence vault at. City
Hall . . .
Q Does it f a i r l y and a c c u r a t e l y d e p i c t
t h e booking procedure conducted w i t h
Case:! F o r e s t on J u l y 22, 19 [8?7?
A Yes . . .
Q Has i t had a n y s e c t i o n added o r h a s it
been changed s i n c e J u l y 2 2 , 1987?
A N o . . .
Q What p a r t o f t h e v i d e o -- what p a r t o f
t h e b o o k i n g p r o c e d u r e had b e e n c o m p l e t e d
when t h e v i d e o t a p e i s s e t t o b e g i n ?
A The r e a d i n g o f t h e i m p l i e d c o n s e n t
l a w , my a s k i n g Plr. F o r e s t i f h e w i s h e d t o
t a k e t h e t e s t , and t h e r e f u s a l .
Q Who i s r e p r e s e n t e d on t h e v i d e o t a p e ?
A Myself and Casey F o r e s t .
Q Was Casey F o r e s t n o t i f i e d t h a t h e was
being video taped?
A Yes, h e was.
After t h e testimony, t h e D i s t r i c t Court admitted t h e video
tape. The only portion unavailable to the jury was that
e x c l u d e d by t h e j u d g e ' s suppression order. Appellant a s s e r t s
no changes, deletions or additions occurred after he was
a d v i s e d o f h i s Miranda r i g h t s . I n i t s d i s c r e t i o n , t h e lower
court found the video portion after the interruption
s u f f i c i e n t l v t r u s t w o r t h y a s t o be admissibl-e a s evidence a t
trial. W e s e e no r e a s o n t o h o l d o t h e r w i s e .
ISSUE IV
Appellant contends t h e D i s t r i c t Court's prosecution of
b o t h a c t i o n s , D U I a n d t h e " p e r s e w o f f e n s e was a v i o l a t i o n o f
the IJnited States and Montana Constit.utions ' prohibition
against double jeopardy. This argument relies on
misstatements of fact.
The record reveals the appellant was convicted of the
DUI charge at the municipal court level; the "per sew charge
was not adjudicated. On appeal to the District Court, the
case was tried anew based on the municipal court file.
Section 46-17-311, MCA; State v. Renson (1931), 91 Mont. 109,
5 P.2d 1045. While the same acts may establish the
commission of an offense under both DUI and "per sew
statutes, a defendant may only be convicted of one offense.
Section 61-8-408, MCA. We find no merit in appellant's
contention.
Affirmed.