State v. TothState v. Toth
delivered the Opinion of the Court.
¶1 Following an arrest for driving under the influence of alcohol, Appellant Michael Toth moved the Fifth Judicial District Court, Madison County, to suppress the evidence obtained following a request for a preliminary breath test. Toth argued that the officer needed probable cause to request the preliminary breath test sample. The District Court denied Toth’s motion, concluding that the officer needed only a particularized suspicion to request a breath sample for preliminary breath test analysis. We affirm.
¶2 The sole issue on appeal is whether the District Court erred when it concluded that Officer Nelson needed only a particularized suspicion to request a breath sample for preliminary breath test analysis.
BACKGROUND
¶3 In the late evening of December 4, 2001, Madison County law enforcement received a report that the occupants of a diesel truck discharged a weapon in front of the complainant’s house. In the early morning of December 5, 2001, Montana Highway Patrol Officer Jay Nelson and Madison County Undersheriff Bill Clark encountered the vehicle and conducted an investigatory stop.
¶4 The driver, Toth, denied discharging a weapon but indicated that he and the occupants set off firecrackers in the area. During the exchange, Officer Nelson detected an odor of alcohol emanating from Toth’s person. Toth admitted that he consumed alcoholic beverages earlier in the evening. Toth then accompanied Officer Nelson to the patrol car. In the patrol car, Officer Nelson again detected an odor of alcohol emanating from Toth’s person. Officer Nelson also noted that Toth’s eyes were glassy. Toth
¶5 At the Detention Center, Officer Nelson administered various standardized field sobriety tests. Officer Nelson also obtained another breath sample for analysis. The breath analysis indicated a blood alcohol content of .135 and the horizontal gaze nystagmus test revealed positive indicators of intoxication. Accordingly, Officer Nelson issued Toth a citation for driving under the influence of alcohol.
¶6 In December 2001, the State charged Toth in the Madison County Justice Court with driving under the influence of alcohol, second offense, in violation of
¶7 On July 12, 2002, Toth moved the District Court to suppress all of the evidence obtained following the request for preliminary breath test analysis. Therein, Toth argued that Officer Nelson needed probable cause to request a breath sample for preliminary breath test analysis. The District Court denied Toth’s motion, concluding that Officer Nelson needed only a particularized suspicion to administer the preliminary breath test. The District Court later denied Toth’s motion to reconsider. On September 25, 2002, Toth filed a notice of appeal from the denial of his motion to suppress.
STANDARD OF REVIEW
¶8 We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether its interpretation of the law is correct.
State v. Lovegren,
DISCUSSION
¶9 Did the District Court err when it concluded that Officer Nelson needed only a particularized suspicion to request a breath sample for preliminary breath test analysis?
¶10 Toth contends that “[t]he District Court ... applied the wrong standard in determining whether Officer Nelson could request a breath test of Mr. Toth.” Toth argues that law enforcement officers must establish probable cause prior to requesting “a test as intrusive as a breath test.” Toth maintains that the District Court should have suppressed all of the evidence obtained subsequent to the preliminary breath test as Officer Nelson did not have probable cause to administer the test. Toth relies primarily on
Bush v. Montana Dept. of Justice,
¶11 As the District Court indicated, Toth’s reliance on
Bush
is misplaced.
Bush
involved a driver’s license reinstatement proceeding pursuant to
¶12 To the contrary,
Preliminary alcohol screening test. A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a preliminary alcohol screening test of the person’s breath, for the purpose of estimating the person’s alcohol concentration, upon the request of a peace officer who has a particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol or in violation of 61-8-410. [Emphasis added.]
Further, we have on several occasions recognized particularized suspicion as the appropriate standard in order to request a sample for preliminary breath test analysis.
See, e.g., Bramble v. State, Dept. of Justice, MVD,
¶13 Affirmed.