DA 11
- 0645 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 303
STATE OF MONTANA, Plaintiff and Appellee,
v. STUART LAURENCE LOZON, JR. , Defendant and Appellant.

APPEAL FROM: Distric t Court of the Twenty

- First Judicial District,

In and For the County of Ravalli, Cause No. DC 2011

- 37 Honorable James A. Haynes, Presiding Judge COUNSEL OF RECORD:

For Appellant: Wade Zolynski, Chief Appellate Defender; Lisa S. Korchinski, Assistant Appellate Defender; Helena, Montana For Appellee : Steve Bullock, Montana Attorney General; Kathryn F. Schulz, Assistant Attorney General; Helena, Montana Karen Mahar, Hamilton City Attorney; Jennifer Lint, Assistant City Attorney; Hamilton, Montana
Submitted on Briefs: September 19, 2012 Decided: December 21, 2012 Filed:

__________________________________________ Clerk December 21 20122

Justice Jim Rice delivered the Opinion of the Court.
¶1 A jury conv

icted StuartL aurence Lozon , Jr. ( Lozon) of drivin g under the influence in the Twenty - First Judicial District Court
. Lozon argues his convictionshould be rev ersed because the District Court admitted the video of the Preliminary Alcohol Screening Test administration without sound over Lozon’sobjection. We reverse. ¶2 We consider the following issue on appeal: ¶3 Did the District Court abuse its discretion by partially denying Lozon’s motion in limine to excludevideo footage depicting administration of the PAST ? **FACTUAL AND PROCEDURAL BACKGROUND** ¶4 On July 6, 20 10, Lozon was stopped by O fficer Reichert after fa iling to stop at a stop sign in Hamilton. A fter noting that Lozon’s movements were labored and he had glassy and bloodshot eyes, Officer Reichert asked Lozon if he had been drinking . Lozon stated he had two - and

- a -half beers earlier in the ev ening. Officer Reichert asked Lozon to perform several standardizedf ield sobriety tests , including the horizontal gaze nystagmus , which Lozon failed. L ozon agreed to perform the Preliminary Alcohol Screening Test (PA ST) 1 and he registered a blood alcohol level of .153. Officer Reichert arrested Lozon and transported him to the Ravalli County Detention Center where Lozon refused to perform additional field sobriety tests an d would not provide anI ntoxi l yzer

1 T hi s Court’s previous decisions involving field breathalyzer tests h ave used PAST and preliminary breath test (PBT) interchangeably. For consistency, we will use PASThere
.3

8000 breat

h sample. L ozon was charged with driving under the influence (DUI) in violation of § 61

- 8
- 401, MCA (2009). ¶5 A jury foundLozon guilty of DUI in Hamilton City Court in March 2011. Lozon appealed to the Twenty

- First Judicial District Court, Ravalli County , and a new trial was scheduled for August 2011. Before trial, Lozon filed a motion in limine requesting the courtto redact all portions of the in

- car or “field” video during which the PAST and the horizontal gaze nystagmus test w ere administered or discus sed. Lozon also requestedthe court to redact a portion of the jail video in which Lozon refers to his PAST results. The State, through the City of Hamilton (State) , opposed the motion. The District Court granted the motion to redact all footage of the administration and discussion of the horizontal gaze nystagmus and all references to thePAST results , but denied the request to redact all video footage of the administration of the PAST
. ¶6 At the District Court trial, Officer Reichert testified , describing h is professional training and experience. He explained generally the administration of thewalk

- and

- turn and the one - leg stand, two standardizedf ield sobriety tests
. O fficer Reichert then testified that Lozon’s performance on both of these standardizedf ield sobriety tests indicated impairment
. No expert testimony about the PAST was offered. The in

- car video was then played for the jury. The video showedL ozon perform ing the standardizedf

ield sobriety tests
. The State switched to a blank screen during the horizontal gaze nystagmus portion of the video. The sound was mutedduring the portion of the video showing Officer Reichert administering the PAST
. A fter the PAST was4

administered, the video depicted the results being shown to Lozon . H e was tol d to sit on the bumper of the police cruiser and sh ortly afterwards was plac edu nder arrest. The PAST results were not revealed to the jury. ¶7 During deliberation s , the jury sent a question to the court asking, “ [c] an we know the results of the fiel d breath alyzer? W hy/why not?” The court respondedin writing :

“N o. The Montana Supreme Court generally limits the use of PAST (“field breathalyzer”) results to an estimation of a person’s alcohol concentration for purposes of establishing probable cause.” The jury found Lozon guilty of DUI
. ¶8 Lozon appeals the District Court’s partial denial of his motion in limine to exclude the v ideo of the PAST administration, which was played without sound. **STANDARD OF REVIEW**  ¶9 A district court’s ruling on a motion in limine isan evidentiary ruling and the district court has broad discretion in determining whether evidence is relevant and admissible. State v. Weldele , 2003 MT 117, ¶ 41, 315 Mont. 452, 69 P.3d 1162. “[I]t is within the district court’s sound discretion to dete rmine whether an adequate foundation has been established to warrant admissibility of evidence.” Weldele , ¶ 43 (citing State v. Delaney , 1999 MT 317, ¶ 14, 297 Mont. 263, 991 P.2d 461). We will not disturb a district court’s determination on the admissib ility of e vidence absent an abuse of discretion. State v. Snell , 2004 MT 334, ¶ 17, 324 Mont. 173, 103 P.3d 503. “Abuse of discretion occurs if a district court acts arbitrarily without conscientious judgment or5

exceeds the bounds of reason, resulting insubstantial injustice.” State v. Rodriguez , 2011 MT 36, ¶ 12, 359 Mont. 281, 248 P.3d 850 (citations omitted). **DISCUSSION** ¶10 Did the District Court abuse its discretion by partially denying Lozon’s motion in limine to exclude video footage depicting adminis tration of the PAST? ¶11 Lozon notesthat PAST results are not admissible as substantive evidence unless the State presents testimony that establishes PAST accuracy and reliability under M. R. Evid. 702. Lozon arguesthat the video of the PAST administration , p layed without sound, was used as substantive evidence because “ it proved the element that Lozon was ‘under the influence’” and permitted the jury to infer that Lozon was above the legal limit whenhe was arrestedshortly afterwards
. He arg uesthat the S tate “did not prov ide the requisite evidence to establish PAST reliability and accuracy, therefore the district court abused its discretion whe n it admitted the PAST video.” ¶12 The State responds that t he “ video e vidence at issue here is not evidence of a PAS T result ” and “[e]xpert testimony is not required to admit Lozon’s on

- screen video depicting real

- time interactions with an investigating officer.” ( Emphasis in original.) The State contends that the District Court “did not abuse its discretion in allowing the jury to view relevant video footage of Reichert’s total DUI field investigation that included administration of the PAST.”6

¶13 The admission of audio

- visual ev idence is generally within the district court’s discretion. City of Missoula v. Forest , 236 Mont. 129, 134
- 36, 769 P.2d 699 (1989) (citing State v. Warwick, 158 Mont. 531, 494 P.2d 627 (1972)). Audio

- video evidence is generally a dmissible to assist the trier of fact because it demonstrates the person’s mannerisms, including speech and performanc e on sobriety tests. State v. Thompson , 237 Mont. 384, 386
- 87 , 773 P.2d 722 , 723
- 24 (1989); see also State v. Devlin , 1999 MT 90, ¶¶ 10, 21, 294 Mont. 215, 980 P.2d 1037. ¶14 PAST results may be introduced to establish probable cause for arrest
. Weldele , ¶ 5 0
. “ B efore a [PAST] result may be admitted as substantive evidence, however, a court must conduct a conventional Rule 702, M. R. Ev id., analysis and the test result must be demonstrably accurate and reliable and meet all other admissibility requirements.” State v. Damon , 2005 MT 218, ¶ 25, 328 Mont. 276, 119 P.3d 1194 (citing Weldele , ¶ 57). In Weldele , we noted that:

[PASTs] are qualitatively different from [other standardized ] field [sobriety] tests, which call for a subjective analysis of a person’s behavior. A [PAST] utilizes a scientific instrument to test a person’s chemistry. I n this scientific age, it is indisputable that, fairly or not, the result of a [PAST], given its scientific nature , will be weig hed heav ily by a jury and will likely be ac corded more weight thanthe o ther field tests. We conclude, therefore, that our many concerns pertaining to the [PAST], i.e. , its unreliability, lack of regulation and potentially inappropriate evidentiary weight, are not addressed or cured by admitting the [PAST] result into ev idence in conjunction with the arresting officer’s observations and field sobriety test results. Weldele , ¶ 55. This reasoning invokes M. R. Evid. 4 03 , which provides : “[a] lthough relevant, evidence may be excluded if its probativ e value is substantially outweighed by7

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of t ime, or needless presentation of cumulative
ev idence. ” ¶15 Although Lozon’ sblood alcohol con tent level from the PAST wasnot rev ealed to the jury , we agree with Lozon that the evidence promptedaj ury inference that he had fa iled the PAST
. The v ideo of the PAST administration , followed closely by L ozon’s arrest , raised a compelling inference that he was over the legal blood alcohol limit . Thus, the video was impermissibly used assubstantive evidence o f Lozon’sintoxication without t he State satisfying the requirement of Damon and M. R. Ev id. 702 t o c all an expert to testify regarding the reliab ility and accuracy of the PAST. Further, a s we cautioned in Weldele , it is likely that thejury place dinappropriate weight on thefact that Lozon was arrested following the PASTandc onclud ed therefrom that Lozon was over the legal limit. During deliber ations, the jury asked if it could be given the result of Lozon’s PASTand, if not, asked the reason this information would be withheld
. While the video was relevant to the State’s case, the potential for unfair prejudice by th at portion of the video showing the PAST administration followed almost immediately by Lozon’s arrest outweighed its probative value
. ¶16 The State does not argue harmlesse rror , but Lozon wisely does, and we believe this issue should be addressed , in light of our precedent. In both Weldeleand State v. Crawford , 2003 MT 118, 315 Mont. 480, 68 P.3d 848, we considered whether the
erroneous admission of PAST or PBT evidence was harmless under State v. Van Ki rk ,8

2001 MT 184, 306 Mont. 215, 32 P.3d 735
. Weldele , ¶ 59; Crawford , ¶¶ 14, 19. Under Van Kirk , we first determine whether the error was “structural” or “trial ” error. Van Kirk , ¶ 37. Here, the error occurred when the jury viewed the video during trial , which constitutes trial erro r, as we also determined in Weldeleand Crawford
. W eldele , ¶ 61; Crawford , ¶ 19. Then, to determine whether the erroneous admission of evidence prejudiced thedefendant’s right to a f air trial, “ we apply the ‘cumulative evidence test’ which determines whether the fact

- finder was presented with admissible evidence that proved the same facts as the tainted evidence proved.” Snell , ¶ 40 (citing Van Kirk, ¶ 43).

“ Moreover, the State must also demonstrate that the qualityof the tainted ev idence was such that there was no reasonable possibility that it might hav e contributed to the defendant ’ s conviction .” Van Ki rk, ¶ 44 (emphasis in original). The State bears the burden of “demonstrat[ing] that the error at issue was not prejudicial. ” Van Kirk, ¶ 42. ¶17 We concluded that the error was harmless and non - prejudi cial in W eldele , ¶ 6 3 , but that the error was preju dicial and therefore reversible in Crawford , ¶ 22
. I n Weldele , the State also introduced the arresting officer’s field observations, the results of the defendant’s standardized field sobriety tests, and the defendant’s Intoxilyzer results to prove the element of intoxication for DUI
. Weldele , ¶ 63. We found that the Intoxilyzer results independently established the element of intoxication and the erroneously admitted PAST results were non

- prejudicial andharmless. Weldele , ¶ 63. In Crawford , the defendant refused to provide an Intoxilyzer sample and we held that the erroneous admission of the PAST ev idence was prejudicial despite the State’s introduction of the9

arresting officer’s field observations, th e results from the defendant’s standardized field sobriety tests, and the defendant’s admission he had been drinking. Crawford , ¶ ¶ 19
- 20 , 22. The State could not demonstrate “that the tainted evidence would not have contributed to Crawford’s conviction,” and thus the error required reversal
. Crawford , ¶ 22. ¶18 Here, as noted above, the State’s presentation of the PAST evidence improperly became substantive evidence of the intoxication element of driving under the influence, and the State must demonstrate th at, qualitatively, the tainted evidence of the PAST would not hav

e contributed to the conviction. I n addition to the portions of the video properly admitted , t

he State notes it introduced Officer Reichert ’st estimony about Lozon’s driving errorsand h is p hysical condition , t he standard izedf

ield sobriety test results , Lozon’s admission he had been drinking, and his refusal to provide a later breath sample
. Th is refusal left the State without Intoxilyzer results
. ¶19 The error that resulted here was the prompt ing of the inference that Lozon had fa iled the PAST. W

hile the other evidence introduced by the State may have cumulatively and conclusively prove n the element of intoxication necessary to support a DUI conv

iction , it did not constitute “ admissible ev iden ce that proved the same facts as the tainted evidence. ” Van Kirk, ¶ 44 ; see also Weldele , ¶ 63 . Further, we conclude that the State has not “ demonstrate [d] that the qualityof the tainted evidence was such that there was no reasonable possibility that itm ight hav e contributed to the defendant ’ s10

conviction. ” Van Kirk, ¶ 44 (emphasis in original). Therefore, the admission of the PAST evidence by

video was prejudicial error. ¶20 Rev

ersed.

/S/ JIM RICE
We concur:
/S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ BETH BAKER

Justice Patricia O. Cotter concurs. ¶21 I concur in the Court’s Opinion. Iw rite separately in response to the Court’s discussion at ¶ 14 to reassert my objection to the introduction of PAST results as substantive evid ence of

g uilt under anyc ircumstances. State v. Damon , 2005 MT 218, 328 Mont. 276, 119 P.3d 1194 (Cotter, J., dissenting).

/S/ PATRICIA COTTER