                                                                                             March 24 2015


                                          DA 13-0466
                                                                                          Case Number: DA 13-0466

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 93N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DANIEL EUGENE SPEER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 11-41
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Chad R. Vanisko, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                        Attorney General, Helena, Montana

                        Scott D. Twito, Yellowstone County Attorney, Victoria Callender, Deputy
                        County Attorney, Billings, Montana


                                                    Submitted on Briefs: February 25, 2015
                                                               Decided: March 24, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1       Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2       On January 19, 2011, at approximately 10 p.m., officers Finnegan, Kirkpatrick and

Keightley with the Billings Police Department observed Daniel Speer driving in the wrong

direction on a one-way street. Finnegan pulled behind Speer and activated his lights to

initiate a traffic stop. Speer did not respond to the officer. Keightley, a field training officer

riding with officer-trainee Kirkpatrick, radioed Finnegan and instructed him to fall back and

allow Kirkpatrick to make the stop. Kirkpatrick pulled behind Speer and activated his

overhead lights. Despite passing several locations where Speer could have safely stopped his

vehicle, Speer drove for approximately three blocks before pulling over.

¶3       Kirkpatrick exited his vehicle, identified himself and explained the reason for the

stop. He asked Speer for a valid driver’s license, registration, and proof of insurance. Speer

provided a suspended driver’s license and registration and proof of insurance documents that

were expired. During this time, both Kirkpatrick and Keightley smelled alcohol on Speer’s

breath. Speer admitted to having had a few drinks four hours earlier.

¶4       Kirkpatrick, under Keightley’s supervision, proceeded to administer standardized

field sobriety tests during which he determined that Speer displayed diminished physical

skills and poor balance. Speer told officers that he had a medically-diagnosed inner ear

problem that affected his balance but he performed the tests nonetheless. Based upon these


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field tests, Kirkpatrick concluded that Speer was intoxicated. He read Speer the preliminary

alcohol screening test advisory and asked Speer to provide a breath sample. Speer refused.

¶5       The officers arrested Speer and transported him to the Yellowstone County

Detention Facility (YCDF) for further testing and to be processed for driving under the

influence. At that time, they observed Speer’s glassy eyes and labored speech. Speer

repeated his claim—several times—that he had an inner ear condition that prohibited him

from performing well on balance tests. The officers explained that Speer must perform all

parts of the sobriety tests unless it was unsafe for Speer to do so. Speer said he was “totally

willing” to perform the tests but that the balance test results should not be used against him.

Based upon the results of all of the tests, Speer was subsequently charged with four

misdemeanor counts and his fourth DUI, a felony.

¶6       On January 25, 2011, Speer entered a plea of not guilty. He subsequently waived

his right to a speedy trial and filed eight motions to continue his trial. In December 2012,

Speer filed a motion to suppress statements and video recordings from the YCDF. Speer

claimed that the officers “coerced” him into performing the sobriety tests against his will by

telling him it would “behoove” him to perform the tests to “prove” his innocence. He

asserted that evidence of his performance of the tests at the detention center should be

suppressed because of this “coercion.” The District Court held a suppression hearing on the

motion on January 3, 2013. In its Findings of Fact, Conclusions of Law, and Order entered

on January 16, 2013, the District Court denied Speer’s motion.

¶7       The District Court conducted a jury trial on January 23, 2013. The three officers

testified, as did two employees from the bar where Speer had been drinking, Speer’s


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audiologist, and Speer. At the conclusion of the trial, the jury found Speer guilty of three

misdemeanor charges1 and felony DUI. He was sentenced on April 23, 2013, to 13 months

with the Department of Corrections, followed by five years suspended, and a fine of $1000

for the DUI. For the misdemeanor counts, he was sentenced to jail for six months on each

count to run concurrently with the DUI count and with each other and fined $500 for each

misdemeanor. The District Court entered Judgment on May 28, 2013. Speer appeals the

District Court’s denial of his motion to suppress and the court’s sentence on the two

misdemeanor counts. Speer does not challenge whether the officers had particularized

suspicion to make the stop or probable cause for his arrest.

¶8         As noted Speer argues that the officers coerced and pressured him into performing

the sobriety tests by telling Speer that it would “behoove” him to perform so he could

“prove” that he was not driving while impaired. He claims that as a result of the officer’s

statements, his “will was overborne and his capacity for self-determination critically

impaired.”

¶9         In State v. Steinmetz, 1998 MT 114, ¶ 18, 288 Mont. 527, 961 P.2d 95, we reviewed

a district court’s denial of Steinmetz’s motion to suppress the evidence of his field sobriety

tests based upon his claim that the officer coerced him into performing the tests by

“demanding” that he perform them and failing to tell Steinmetz that he could refuse to take

the tests. We explained in Steinmetz that to determine if Steinmetz was coerced, we would

look to the totality of the circumstances and look for evidence that Steinmetz’s “will had

been overborne and his capacity for self-determination critically impaired.” Steinmetz, ¶ 18.

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           The State dismissed one of the misdemeanor charges.

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¶10      Applying the “totality of the circumstances” standard to Speer, we reviewed the

suppression hearing testimony and the videotapes of the investigative process taken both in

the field and at the detention center. Notably, Speer appeared to have no balance problems

exiting his vehicle, walking to the back of his car, and stepping up on the sidewalk in

preparation for performing the field tests. Additionally, the officers explained that if

performing the balance tests would be unsafe for Speer, they would not require that he

proceed with the tests; however, because Speer was not displaying the balance issues he

claimed, he should proceed.        During testing at the YCDF, while questioning the

appropriateness of the balance portion of the sobriety tests based upon his medical condition,

Speer nonetheless told the officers that he was “totally willing” to take the tests. Based upon

our review, we find no evidence that Speer’s will had been overborne or that his capacity for

self-determination was critically impaired.

¶11      Speer also argues that the District Court illegally sentenced him on two

misdemeanor counts—operating a vehicle without proof of insurance and failing to carry a

registration receipt. Speer asserts that the court’s sentence of six months at YCDF and a

$500 fine for each count exceeded the statutory mandates. The State acknowledges that the

Court’s sentence on these two charges did not comply with the applicable sentencing

statutes. We therefore remand this case to the District Court for resentencing in accordance

with the law on misdemeanor Counts III and IV.

¶12      We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The issue




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in this case is legal and is controlled by settled Montana law which the District Court

correctly interpreted.

¶13      We affirm the District Court’s denial of Speer’s motion to suppress. We remand to

the District Court for resentencing on Counts III and IV.



                                                 /S/ PATRICIA COTTER

We Concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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