No. 00-634

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 118

STATE OF MONTANA

Plaintiff and Respondent,

 v

MICHAEL DUANE CRAWFORD

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, Cause No. BDC-99-499

The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Eric Olson, Public Defender Office, Great Falls, Montana

For Respondent:

Mike McGrath, Montana Attorney General, John Paulson, Assistant Montana

Attorney General, Helena, Montana; Brant Light, Cascade County Attorney,

John Parker, Deputy Cascade County Attorney, Great Falls, Montana

For Amicus:

Jeffrey T. Renz, Lucy Hanson-Gallus, School of Law, Missoula, Montana

(Criminal Defense Lawyers)

Heard: April 29, 2002

 Submitted: May 14, 2002

 Decided: April 29, 2003

Filed:

__________________________________________

Clerk
2

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Michael Duane Crawford (Crawford) was charged with five separate driving-related

offenses, including felony driving under the influence (DUI). He pled guilty to three of these

offenses--driving on a revoked license, failure to have motor vehicle insurance and failure

to use a seat belt. The jury found him guilty of the other two--felony DUI and violating a

red traffic signal. He appeals the felony DUI conviction. We affirm in part and reverse and

remand for a new trial.

ISSUES

¶2 A restatement of the issues Crawford presents is:

1. Did the District Court erroneously deny Crawford's motion in limine to

preclude the use of the results of the preliminary breath test (PBT)?

2. Did the District Court erroneously allow Officer Malhiot to testify as an expert

on the scientific basis for the horizontal gaze nystagmus (HGN) test?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Crawford was stopped by Officer Sorenson just before midnight on December 2,

1999, for failing to stop at a red flashing light. At Crawford's trial, Sorenson described,

without objection, his observations and actions that ultimately led him to conclude that

Crawford was driving while under the influence of alcohol. He explained that after he

initiated the traffic stop and asked Crawford for his license, registration and proof of

insurance, he noticed Crawford's fingers "were rather clumsy," he smelled of alcohol, his

eyes were "glazed and somewhat bloodshot," and his "speech was somewhat slurred and
3

thick tongued." Also, according to Sorenson, Crawford admitted to having had two beers.

¶4 Sorenson asked Crawford to get out of his car and to perform field sobriety tests.

Crawford told Sorenson that he had bad knees, so Sorenson did not ask Crawford to perform

any balancing maneuvers. He asked Crawford to perform the HGN maneuver and Crawford

showed four of the six HGN indicators of possible alcohol impairment. Sorenson then asked

Crawford to recite the alphabet. Crawford could successfully recite the alphabet to the letter

"G" only. Sorenson, with Crawford's permission, administered a PBT that showed a breath

alcohol concentration (BAC) of .153. These observations and tests provided probable cause

for Sorenson to arrest Crawford for DUI and transport him to the Cascade County Detention

Center, where Crawford refused further processing and testing, including specifically

refusing to take an Intoxilizer test. 

¶5 Crawford was charged by Information with felony DUI, among other charges. The

District Court issued an Omnibus Hearing Memorandum and Order on March 8, 2000, and

ordered that all pretrial motions be filed no later than four weeks before trial. On April 17,

2000, the first day of his trial, Crawford pled guilty to driving on a revoked license, failing

to have motor vehicle insurance and failing to use a seat belt. Crawford also filed a written

motion in limine to suppress evidence of his PBT results. The District Court denied the

motion on the merits. Additionally, the State made an oral motion to qualify Matt Malhiot

as an expert witness for the purpose of laying scientific foundation testimony regarding

HGN. The court granted the motion over Crawford's objection.

¶6 On April 18, 2000, the jury returned a guilty verdict on both felony DUI and failing
4

to stop for the red flashing traffic signal. On June 13, 2000, the District Court sentenced

Crawford to the Department of Corrections for nine months for placement in a pre-release

center, to be followed by three years probation, for felony DUI. Crawford received

suspended sentences and fines for the misdemeanor charges. The District Court's Judgment

of Conviction and Sentencing Order was entered on August 15, 2000. Crawford filed a

timely appeal.

STANDARDS OF REVIEW

¶7 A district court's ruling on a motion in limine is an evidentiary ruling and the court

has broad discretion in determining whether evidence is relevant and admissible. As such,

this Court will not overturn a district court's determination absent an abuse of that discretion.

Somont Oil Co., Inc. v. A & G Drilling, 2002 MT 141, 310 Mont. 221, 49 P.3d 598.

¶8 The determination of the qualification and competency of an expert witness rests

within the sound discretion of the trial court and will not be disturbed absent a showing of

abuse of discretion. State v. Clausell, 2001 MT 62, 305 Mont. 1, 22 P.3d 1111 (citation

omitted). 

DISCUSSION

¶9 The first issue we consider is whether the District Court erred in denying Crawford's

motion in limine to preclude the use of the results of the preliminary breath test (PBT).

¶10 In State v. Weldele, 2003 MT 117, ___ Mont. ___, ___ P.3d ____, we analyzed and

decided the precise issue presented by Crawford. We will not repeat our full analysis here

but will reiterate some essential points and apply our holding. 
5

¶11 In Weldele, we affirmed State v. Strizich (1997), 286 Mont. 1, 952 P.2d 1365, and

held that despite the statutory language of § 61-8-404, MCA (1997), PBT results obtained

under field conditions are not admissible at trial as evidence of BAC without a showing that

the results are demonstrably accurate and reliable. We noted that since Strizich was decided,

we have not been made aware of any scientific evidence that allays our concern that the PBT

instrument remains inherently unreliable for the purpose of accurately quantifying BAC. We

also opined in Weldele that because the PBT utilizes a scientific instrument, the result would

likely be accorded greater weight by a jury or judge than non-scientific, subjective

indications of intoxication, i.e., officer observations and performance on field sobriety tests.

For these two reasons, we concluded that admission of PBT results into evidence to prove

actual BAC was error. Weldele, ¶ 57.

¶12 We further observed in Weldele that proponents of the 1997 statutory changes sought

to have PBT results admitted in conjunction with the arresting officer's observations and

interpretations of the defendant's performance of field sobriety tests, but that the amended

statute failed to incorporate this caveat. Weldele, ¶ 54.

¶13 In the case sub judice, as in Weldele, the State offered no scientific evidence

establishing consistent reliability and accuracy of the PBT equipment used to test Crawford.

However, relying exclusively on § 61-8-404, MCA (1997), the District Court admitted the

PBT results at trial as evidence of Crawford's intoxication. As we did in Weldele, we hold

that this was an erroneous legal conclusion which led the District Court to abuse its

discretion in denying Crawford's motion in limine.
6

¶14 It is at this stage in our analysis that the facts in this case diverge from those in

Weldele. After concluding that admission of Weldele's PBT result was error, we concluded

that it was harmless and non-prejudicial error. We reached this conclusion after conducting

a "harmless error" analysis under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d

735. We first determined that admitting Weldele's PBT result was "trial" error rather than

"structural" error, and as a result was subject to a "harmless and prejudicial" analysis.

Weldele, ¶ 61; Van Kirk, ¶¶ 38-40. 

¶15 We next applied the "cumulative evidence test" developed in Van Kirk. The

"cumulative evidence" test requires that the court have before it admissible evidence that

proves the same fact as the tainted evidence was submitted to prove. Under this test, if the

tainted evidence is cumulative and is presented for the purpose of proving an element of the

charged crime, the State must prove that, qualitatively, the tainted evidence would not have

contributed to the conviction. If, on the other hand, the tainted evidence is not cumulative

and is presented to prove an element of the crime, such admission of evidence cannot be

considered harmless and thus is reversible error. Van Kirk, ¶ 47.

¶16 In Weldele's case, the jury was presented with various types of evidence admitted for

the purpose of establishing the intoxication element of Weldele's DUI charge. First, the

arresting officer's observations at the time of the traffic stop as well as the results of the field

sobriety tests he conducted were admitted without challenge by Weldele. Weldele, ¶ 5.

More importantly, Weldele's PBT result and the result of his Intoxilizer test were presented

to the jury. Weldele, ¶ 63. We concluded in Weldele's case that because the more accurate
7

Intoxilizer result was admitted, without challenge, to prove the intoxication element of the

crime, admission of Weldele's PBT result was merely cumulative and its presentation to the

jury did not harm or prejudice Weldele. Weldele, ¶ 63. This is not the situation in the case

before us. 

¶17 As we noted above, Crawford refused to take the Intoxilizer test. Thus, the evidence

presented to the jury to prove the intoxication element of Crawford's DUI consisted of the

arresting officer's testimony and Crawford's PBT result. While we believe that each of these

types of evidence serves an important and necessary function, we do not believe they are

qualitatively comparable.

¶18 As suggested above, there is a natural propensity among jurors to accord greater

weight to objective scientific evidence than to subjective observations that are open to

differing interpretations. If the scientific evidence is accurate and reliable, this is a desirable

and fair result. However, if the scientific evidence in question has no demonstrable accuracy

or reliability--as is the case with the PBT result in Weldele and here--then the error of its

admission can have significant adverse consequences for the defendant. As we pointed out

in Weldele, factors which affect the results of PBT tests administered in the field can produce

readings that vary as much as 10%. Weldele, ¶ 53. 

¶19 Returning to the case before us, the jury had before it not only the PBT results, but

also the officer’s observations and the results of the field sobriety tests. Thus, arguably, the

tainted evidence--the PBT result--was cumulative. However, we must still apply the analysis

we adopted in Van Kirk, referenced here in ¶ 14: If the tainted evidence is cumulative and
8

is presented for the purpose of proving an element of the charged crime, then the State must

prove that, qualitatively, the tainted evidence would not have contributed to the conviction.

Given the scientific nature of the PBT evidence and for the reasons set forth above, we

conclude the State cannot meet this burden.

¶20 This is not to say that, without the PBT or Intoxilizer as admissible evidence, DUI

defendants must go unpunished. Refusal to take either or both tests results in automatic

suspension of the person's driver's license for a prescribed period of time. Section 61-8-402,

MCA. Moreover, because our statute does not mandate that quantitative, numeric evidence

of BAC is required to obtain a conviction, the State may still pursue prosecution for DUI by

offering the defendant's refusal to take the test(s) into evidence, as well as the field sobriety

test results, the arresting officer's observations and any available video tape of the field and

detention center investigations. Section 61-8-404, MCA. See also State v. Holman (1990),

241 Mont. 238, 786 P. 2d 667. Moreover, as we indicated in Weldele, the "State may take

the opportunity at any time to establish PBT reliability," and if it succeeds in doing so, the

results could then be admissible providing the evidence otherwise satisfied all other

admissibility requirements. Weldele, ¶ 57.

¶21 The State points out that in Town of Columbus v. Harrington, 2001 MT 258, 307

Mont. 215, 36 P.3d 937, we found no error with the District Court admitting PBT test

results. While the State is correct in this assertion, the explanation for that conclusion is

simple: Harrington did not challenge the reliability or admissibility of the PAST/PBT

results. The question presented in Harrington centered on the inconsistency between the
9

newly revised statute and existing--and not revised--regulations. This Court, not presented

with any claim of PAST/PBT unreliability, performed only the legal analysis for the issue

presented: when a statute and a regulation are in conflict, which controls? We concluded

that the statute controlled and, therefore, affirmed the District Court which had concluded

the same. Here we are squarely presented with the question of whether PBT results should

be admitted as evidence of BAC; thus our decision in Harrington is inapposite.

¶22 Because we conclude for the reasons set forth above that the State cannot demonstrate

that the tainted evidence would not have contributed to Crawford’s conviction, the admission

of the PBT results in Crawford’s trial was prejudicial error. We therefore reverse his

conviction, and remand for a new trial. Upon retrial, the State may utilize all admissible

evidence in making its case against Crawford, including Officer Malhiot’s testimony, as

further addressed below. 

¶23 The remaining issue presented is whether the District Court erred in allowing Officer

Malhiot to testify as an expert on the scientific basis for the horizontal gaze nystagmus

(HGN) test. Because we are remanding for a new trial, this issue must be resolved.

¶24 Our courts recognize that it is beneficial, and at times necessary, to have experts

testify in order for judges and juries to better understand the evidence or facts presented in

a case. "The test for admissibility of expert testimony is whether the matter is sufficiently

beyond common experience that the opinion of the expert will assist the trier of fact to

understand the evidence or to determine a fact in issue." State v. Russette, 2002 MT 200,

¶ 11, 311 Mont. 188, ¶ 11, 53 P.3d 1256, ¶ 11 (citing Hulse v. State, Dept. of Justice, 1998
10

MT 108, ¶ 48, 289 Mont. 1, ¶ 48, 961 P.2d 75, ¶ 48). "Hence, in conducting an admissibility

analysis, a district court must determine: (1) whether the subject matter of the testimony is

one that requires expert testimony; and (2) whether the particular witness is qualified as an

expert to give an opinion in the particular area on which he or she proposes to testify."

Russette, ¶ 11 (citing State v. Southern, 1999 MT 94, ¶ 49, 294 Mont. 225, ¶ 49, 980 P.2d

3, ¶ 49). The Russette Court in setting out this two-pronged rule simply restated Rule 702,

M.R.Evid., which provides:

If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education

may testify thereto in the form of an opinion or otherwise. 

To establish a witness's qualifications as an expert, Rule 702 implicitly requires a foundation

showing that the expert has special training or education and adequate knowledge on which

to base an opinion. Russette, ¶ 11. 

¶25 As to the first prong of Rule 702 regarding the appropriateness of expert testimony

pertaining to HGN tests, it was firmly established under Hulse that "the underlying scientific

principle of the HGN test is still beyond the range of ordinary training or intelligence" and,

as a result, it is an appropriate subject matter for expert testimony. Hulse, ¶ 69. Having met

this first Rule 702 prong, the District Court next determined whether Malhiot was qualified

as an expert under the requirements of Rule 702. 

¶26 The State sought to have Officer Malhiot testify as an expert for the purpose of

establishing the reliability of the HGN results. Such a foundation was required under Hulse.
11

To establish that the test was scientifically reliable, Malhiot's testimony would necessarily

include a physiological explanation of the link between alcohol ingestion and nystagmus,

this being the underlying scientific basis for the HGN test. Crawford, citing Hulse and Van

Kirk, claimed that Malhiot, who was not a medical professional, was not qualified to act as

an expert for this purpose. 

¶27 In Hulse, the Court concluded that the arresting officer, having received 40 hours of

training on various field sobriety tests, was qualified to administer and evaluate the test but

was not qualified to explain the underlying scientific basis for the reliability of the HGN test.

Hulse, ¶¶ 71-72. Similarly, in Van Kirk, the Court ruled that the arresting officer, who held

a bachelor's degree in medical technology and worked as a lab technician at Montana State

Hospital, was qualified to administer the test and to evaluate the results, but did not have the

special training or education to qualify him as an expert to explain the correlation between

alcohol consumption and nystagmus. Van Kirk, ¶ 28. While we concluded that the arresting

officers in both of these cases were not qualified to provide expert testimony as to the

reliability of the HGN test, we did not hold that such an expert must be a medical

professional, as argued by Crawford.

¶28 Unlike the officers in Hulse and Van Kirk, Malhiot presented a litany of credentials

demonstrating his qualifications to give expert testimony regarding the reliability of the

HGN test. Among others:

1. He holds a bachelor of science degree in criminal justice administration;

2. He has taken numerous courses in biology, anatomy, physiology, and forensic
12

science;

3. He has developed a specialty in DUI and impaired driving enforcement, and

had completed several courses in DUI enforcement through the Montana Law Enforcement

Academy, the Forensic Science Division of the Montana Department of Justice, and the

National Highway Traffic Safety Administration;

4. He completed both the Montana Highway Patrol's field sobriety course and the

instructor-level course through the National Highway Traffic Safety Administration;

5. He completed an instructor facilitator course with the National Highway

Traffic Safety Administration as well as numerous other courses with the Division of

Forensic Science;

6. He maintains currency in these areas by reading papers and studies devoted to

DUI-related topics, including HGN and other field sobriety tests; and

7. He previously has been qualified as an expert for the purpose of laying

scientific foundation for HGN in both justice courts in Cascade County and in proceedings

before the Eight Judicial District Court Judge Kenneth Neill.

¶29 At trial, Malhiot explained the concept of nystagmus and discussed the correlation

between alcohol in the human body and the phenomenon of nystagmus. He further testified

to his knowledge of the types of nystagmus and the various causes, in addition to alcohol,

which might lead to nystagmus.

¶30 We have previously held that a district court is "vested with great latitude in ruling

on the admissibility of expert testimony." Southern, ¶ 48 (citation omitted) (emphasis in
13

original). We have also stated that "without a showing of an abuse of discretion, such a

determination will not be disturbed." State v. Detonancour, 2001 MT 213, ¶ 48, 306 Mont.

389, ¶ 48, 34 P.3d 487, ¶ 48 (quoting Cottrell v. Burlington Northern R. Co. (1993), 261

Mont. 296, 301, 863 P.2d 381, 384). In the case before us, given Malhiot's extensive

training and education, we cannot conclude that the District Court abused its discretion in

allowing him to testify as an expert on HGN.

CONCLUSION

¶31 For the reasons stated in this Opinion, we reverse and remand this case to the District

Court for retrial during which the State may pursue a DUI conviction utilizing admissible

evidence. We affirm the District Court's decision to allow Malhiot to testify as an expert.

/S/ PATRICIA COTTER

We Concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART
14

Justice Jim Rice, concurring in part and dissenting in part. 

¶32 I concur with the Court’s holding on the second issue, but respectfully dissent from

the holding on Issue 1. I would affirm.

¶33 The Court correctly notes in ¶ 13 that “the State offered no scientific evidence

establishing consistent reliability and accuracy of the PBT equipment used to test Crawford.”

However, the State was not challenged to do so.

¶34 On the day of trial, Crawford offered a straight-forward legal objection: that based

upon Strizich and an administrative rule, PBT evidence was unreliable as a matter of law,

and therefore, inadmissible. Crawford did not present evidence or argue that the PBT was

unreliable based upon the underlying scientific basis for the test.

¶35 For the reasons set forth in my concurring opinion in Weldele, Crawford’s argument

that PBT evidence was unreliable as a matter of law is incorrect. Strizich did not so hold,

but further, the statutes upon which Strizich relied in determining that the evidence was

statutorily inadmissible were revised by the Legislature in 1997. Thus, given the basis of

Crawford’s objection, the District Court correctly denied it. The evidence is not unreliable

as a matter of law.

¶36 However, that does not end the inquiry. Reliability remains a valid evidentiary issue.

As Amicus Curiae, Montana Association of Criminal Defense Lawyers, correctly notes about

the 1997 statutory revisions:

First, the Legislature did not mandate admission of the [PBT] results. The

[statutory] provision does not direct that the results “must” or “shall” be

admitted. Second, the Legislature did not declare the results were reliable
15

scientific evidence. The Legislature merely removed the statutory impediment

to admissibility of PBT results.

The statutory impediment to admissibility removed, PBT evidence may be offered, but

remains subject to challenge on the grounds of its scientific reliability. When properly

challenged on that ground, a trial court must consider the issue in the manner we set forth

in Hulse. That is, as explained in my concurring opinion in Weldele, the trial court must

“conduct a conventional Rule 702, M.R.Evid., analysis.” Hulse, ¶ 69.

¶37 However, no objection was made by Crawford to the underlying scientific basis of

the PBT, and therefore, the State offered no evidence regarding its scientific reliability. Even

if Crawford had objected to the evidence on the proper grounds, it would have been

impossible for the State to demonstrate the test’s reliability, given the untimely nature of

Crawford’s challenge. At any rate, the District Court did not rule on the issue, and on that

basis, I would affirm. 

/S/ JIM RICE

Chief Justice Karla M. Gray joins the concurring and dissenting opinion of Justice Rice. 

/S/ KARLA M. GRAY
16

Justice Terry N. Trieweiler specially concurring.

¶38 I concur with the result arrived at by the majority. However, I do not agree with all that is

said in the majority Opinion. 

¶39 To the extent that by relying on our decision in Weldele, the majority applies the entirety of

its rationale in Weldele, I disagree with language found in that Opinion for the reasons stated in my

specially concurring opinion to Weldele. 

¶40 Furthermore, I disagree with the majority's statement in ¶ 21 of this Opinion that the "'State

may take the opportunity at any time to establish PBT reliability. . . .'" As I noted in my specially

concurring opinion to Weldele, 

The majority's suggestion could result in preliminary breath test admissibility in one

case where it is not adequately challenged on a scientific basis and exclusion in

another case where, because of the superior quality of representation or the fact that

greater resources are available for scientific or expert opinion evidence, the

inadequacies of the test are more clearly established. This type of process provides

no guidance to district courts, will lead to inconsistent results, and suggests that the

basis for convictions will depend simply on the quality of representation provided

to criminal defendants. 

I would conclude that absent some evidence that the design or construction

and reliability of the instruments by which preliminary breath tests are administered

has changed significantly since our decision in Strizich, that decision is binding on

district courts in the future.

Weldele, ¶¶ 97, 98 (Trieweiler, J., specially concurring).

¶41 For these reasons, while I concur in the result arrived at by the majority, I do not agree with

all that is said in the majority Opinion. 

/S/ TERRY N. TRIEWEILER