Summary
The Montana Supreme Court affirmed Richard Bollman's felony DUI conviction and sentence. The court held that the district court did not abuse its discretion by qualifying a highway patrol trooper as an expert on the scientific basis of the horizontal gaze nystagmus test or by denying Bollman's motion for a mistrial after an officer made an unsolicited reference to felony DUIs.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by qualifying Trooper Tim Proctor to testify as an expert concerning the scientific basis of the horizontal gaze nystagmus test.
- Whether the district court abused its discretion by denying Bollman's motion for mistrial after an officer made an unsolicited reference to felony DUIs.
Holdings
- The district court did not abuse its discretion in qualifying Trooper Proctor under M.R. Evid. 702 to testify as an expert regarding the scientific basis of the HGN test.
- The district court did not abuse its discretion by denying Bollman's motion for mistrial because there was no reasonable possibility that the officer's single, unsolicited reference to felony DUIs contributed to the conviction.
Key quotations
“Before the results of the HGN test are admissible, the State must present expert testimony to explain the correlation between alcohol consumption and the presence of nystagmus, i.e. the scientific basis of the HGN test.” (272 P.3d at 656)
“We have established no "essential requirements" the witness must possess to testify as an expert on HGN.” (272 P.3d at 656)
“After reviewing the facts and circumstances of this case, we conclude there is no reasonable possibility that Officer McConnell's statement contributed to Bollman's conviction.” (272 P.3d at 657)
Factual background
Officer Craig McConnell observed Bollman repeatedly drift from his lane, make a wide turn without signaling, and drive slowly after appearing to pull over. During the stop, McConnell observed signs of intoxication, including a strong odor of alcohol, garbled speech, bloodshot and watery eyes, slow and unsteady movements, and poor performance on standardized field sobriety tests. Bollman refused additional field sobriety tests and a breath test, and disputed the officer's account at trial. During trial, the officer made an unsolicited reference to felony DUIs, despite an order excluding references to the felony charge and other offenses.
Procedural history
A jury convicted Bollman of felony DUI, his fifth DUI offense, on March 15, 2011. The district court sentenced him to a 13-month commitment with the Department of Corrections followed by a four-year suspended commitment. Before and during trial, the court qualified Trooper Tim Proctor as an expert on HGN and denied Bollman's motion for mistrial after an officer referred unsolicitedly to felony DUIs. The Montana Supreme Court affirmed.