No. 89-483
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
KIM CHARLES HOLMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks; Hooks & Budewitz, Townsend, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patti Powell and James Yellowtail, Asst. Attorney's
General, Helena, Montana
John T. Flynn, Broadwater County Attorney, Townsend,
Montana
Submitted on Briefs: Jan. 11, 1990
Decided: February 6, 1990
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Mr. Holman appeals his conviction on a DUI charge following
a bench trial in the First Judicial District Court, Broadwater
County, Montana. We affirm.
Appellant presents four issues for review:
1. Did the trial court err in considering a presumption that
appellant was under the influence of alcohol while driving, based
on blood alcohol concentration test results which were not related
back to the time of operation?
2. Did the trial court abuse its discretion in rejecting the
opinions of the defense's expert witness?
3. Did the trial court err in relying on expert witness
testimony predicated upon a dissimilar pre-trial experiment?
4. Is the evidence sufficient to sustain the conviction?
On March 18, 1988, Kim Charles Holman worked his shift at
Helena's ~olumbiaPaint Company. Immediately after work, around
4 :30 p.m. , he went to Hap s Place in Helena with his nephew and
admittedly drank four or five beers. He left Hap's about 7:00 p.m.
for his home in Townsend. On the way out of Helena, Holman
purchased two more cans of beer. Holman testified at trial that
prior to being stopped he had only a few sips out of one can.
However, at the time of his arrest he stated that he had consumed
seven beers.
At approximately 7:30 p.m., after dark, Highway Patrolman
Larry Bean clocked the Holman vehicle approaching him at 77 miles
per hour. Because he had to turn around, Patrolman Bean pursued
2
Holman for two miles with his flashing lights on before he caught
up to the Holman vehicle. When he did catch up to Holman, Bean
observed the vehicle swerve across the road to the left and back.
Holman then tried to pull over on a wide place in the road, but
misjudged, and drove off the road finally stopping in a barrow
pit.
Holman testified that he had deliberately delayed pulling over
when he saw the patrol carts flashing lights. He was trying to
light a cigarette, fasten his seat belt, and hide the beer. Holman
thought the lighted cigarette would mask the alcohol on his breath
and he did not want the patrolman to see the opened and unopened
beer containers.
Patrolman Bean testified that when Holman stepped out of his
vehicle it was obvious that he had been drinking. His breath
smelled strongly of alcohol, his eyes were bloodshot, his face was
flushed, and he had to lean against his vehicle for support. Bean
administered field sobriety tests, including the horizontal gaze
nystagmus test, the walk and stand test and the one-legged stand
test. Holman failed all these tests. He staggered, almost fell
and could not perform some of the tests. While Holman admitted
that he had had trouble with the field sobriety tests he attributed
his poor performance to nervousness and to dizziness from smoking
the cigarette.
Patrolman Bean arrested Holman and took him to the Townsend
Sheriff's office. At the Sheriff's office Holman was booked, given
his Miranda rights, interviewed and given an Intoxilyzer 5000
breath alcohol level test. Holman tested at .178; a person is
presumed intoxicated at a test level of .lo.
Holman was convicted of driving under the influence of alcohol
following a jury trial in Justice Court No 1, Broadwater County.
He appealed to the District Court and received a trial de novo.
Holman expressly waived a jury trial.
In his defense, Holman contended that his appearance of
intoxication and his .I78 alcohol level test were caused by
ingesting paint fumes while at work. Some of the compounds in the
traffic paint he worked with on March 18, 1988, are Toluene,
Hexane, Naptha, mineral spirits and Xylol. Toluene, in particular,
can cause the appearance of intoxication. The appellant's expert
testified that in his opinion the Intoxilyzer 5000 is not specific
for alcohol but would respond to a wide number of chemicals
including the above-mentioned substances which would affect the
breath alcohol test results. The State's expert testified that in
his opinion the Intoxilyzer 5000 will not register Hexane, Naptha,
Xylol or mineral spirits as part of a breath alcohol level test.
It is theoretically possible that the Intoxilyzer 5000 might
register the presence of Toluene, but if it did the machine would
signal an invalid test or register an interference. Thus, the
State's expert testified that the Intoxilyzer 5000 is specific for
alcohol and would not register other substances as alcohol.
I and I11
Because we find issues I1 and IV dispositive, we need not
-.
discuss issues I and 111.
I1
Appellant argues that the District Court abused its discretion
in rejecting the defense expert's opinion. We disagree.
At trial, appellant contends that his poor performance on the
field sobriety tests resulted from ingesting paint fumes at work
rather than consuming five to seven beers in an hour and one-half
after work. As proof, the defense offered expert testimony to
support the inference that paint fumes caused appellant's elevated
breath alcohol level. The record discloses, however, that the
defendant's and State's experts disagreed as to whether the
Intoxilyzer 5000 could register Toluene, Hexane, Naptha, Xylol or
mineral spirits as alcohol. The defendant's expert opined that it
could, while the State's expert opined that it could not. The
District Judge as trier of fact resolved that conflict in the
State's favor.
Evaluation of expert testimony lies "within the province of
the trier of fact. State v. Trask (Mont. 1988), 764 P.2d 1264,
1267, 45 St.Rep. 1988, 1992. In the case at bar the District Judge
evaluated the two experts' testimony and found the State expert's
testimony more credible. The function of the trier of fact is to
make such determinations of credibility and weight when confronted
with conflicting evidence. We cannot disturb those determinations.
The District Court Judge, in fulfilling his role as trier of fact,
did not abuse his discretion in finding the State's expert more
.,
credible.
Appellant also argues that the State presented insufficient
evidence to sustain a conviction. Again, we disagree.
Upon review, 'a conviction may not be overturned when the
'
evidence presented, viewed in the light most favorable to the
prosecution, would permit a rationale [sic] trier of fact to find
the essential elements necessary to establish the offense.
(citations omitted.)'' Trask, 764 P.2d at 1266.
At trial, the District Judge, in denying defendant's motion
to dismiss, summarized the State's evidence, excluding the
Intoxilyzer 5000 test, as follows:
[W]e have field sobriety tests, we have the
admission of the defendant he had been
drinking, that he had seven beers. We have
testimony of the police officer the man was
staggering, that he almost fell down, that
there was a high odor of alcohol and as I said
a moment ago he admitted he had at least seven
beers. And the police officer's testimony
relates to the time when he was arrested and
the time he was driving. He jogged his
vehicle to the left on the highway, came back
apparently seeking a place to park, misjudged,
drove down into the barrow pit with his
automobile. All of these actions are
consistent with the actions of an intoxicated
driver, a man driving while under the
influence of alcohol.
Thus, even disregarding the Intoxilyzer 5000, test, sufficient
evidence exists to convict appellant.
Affirmed.
Justice
/ At
We concur: A
t
Chief Justice
@& Justices