248 P.3d 300
Mont.2011Background
- Gieser was stopped by a Gallatin County deputy after a citizen reported a truck with a suspicious plate swerving and forcing another vehicle off the road near Gallatin Gateway, MT.
- The deputy observed odor of alcohol, bloodshot watery eyes, slurred speech, unsteadiness, and difficulty locating his ID in the wallet.
- The officer administered the HGN test (max score) and a walk-and-turn test, suggesting impairment.
- A Portable Breath Test was attempted with a non-certified device, then with the officer’s device that was out of certification; Gieser provided a usable breath sample later, yielding .182 BAC.
- Gieser was arrested for DUI and later refused to provide a breath sample at the law center; he testified to drinking since casino visit and consuming two beers.
- At trial, the State introduced the un-certified breath-test result and the HGN testimony without supporting expert evidence; Gieser was convicted of DUI and later sentenced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there ineffective assistance for admitting HGN evidence lacking expert basis? | Gieser argues counsel failed to move to exclude HGN without scientific proof. | Gieser contends the decision to admit HGN was proper given trial strategy and evidence otherwise presented. | HGN admission was prejudicial; reversal warranted. |
| Is there ineffective assistance for admitting breath-test results from an un-certified device? | Gieser argues trial counsel should have excluded the breath test from the un-certified device. | Gieser contends other evidence could support conviction regardless of the breath test. | Admission of the un-certified breath test was prejudicial; reversal warranted. |
Key Cases Cited
- City of Missoula v. Robertson, 298 Mont. 419 (2000 MT) (requires scientific basis and proper foundation for HGN results)
- Hulse v. State, 289 Mont. 1 (1998 MT) (requires expert testimony for scientific reliability of HGN)
- State v. Delaney, 297 Mont. 263 (1999 MT) (breath testing instruments must be certified and calibrated)
- State v. White, 349 Mont. 109 (2009 MT) (instrument certification and regulatory framework for breath tests)
- State v. Pol, 346 Mont. 322 (2008 MT 352) (breath test results often prove critical proof of DUI)
- State v. Frickey, 332 Mont. 255 (2006 MT) (emphasizes reliability concerns with breath-alcohol evidence)
- State v. Van Kirk, 306 Mont. 215 (2001 MT) (harmless-error framework for evidentiary issues)
- State v. Reichmand, 358 Mont. 68 (2010 MT) (evaluates impact of contested evidence on verdicts)