                                          No. 03-604

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 338


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DUANE ALAN OTTO,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Tenth Judicial District,
                     In and for the County of Fergus, Cause No. DC 2003-08
                     The Honorable Randal I. Spaudling, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Torger S. Oaas, Attorney at Law, Lewistown, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, C. Mark Fowler,
                     Assistant Attorney General, Helena, Montana; Thomas P. Meissner, Fergus
                     County Attorney, Lewistown, Montana



                                                          Submitted on Briefs: July 14, 2004

                                                                 Decided: November 30, 2004



Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1      Duane Alan Otto pled guilty to a first offense violation of § 61-8-401, MCA, driving

under the influence of alcohol (“DUI”). The plea was made pursuant to § 46-12-204(3),

MCA, allowing Otto to appeal the District Court’s denial of both his Motion to Dismiss and

his Motion to Suppress. We affirm.

                                          ISSUES

¶2      1. Did the District Court err when it denied Otto’s pre-trial Motion to Dismiss on the

grounds that the arresting officer did not have particularized suspicion to execute a traffic

stop?

¶3      2. Did the District Court err when it denied Otto’s pre-trial motion to suppress his

breathalyzer results when the machine failed to print the results?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4      On the evening of May 30, 2002, Officer Kelly Mantooth was patrolling westbound

on U.S. 87 east of Lewistown. He noticed a vehicle in front of him--later determined to be

Otto’s--make a “drastic swerve” to the right and then to the left and straighten out. Mantooth

testified that he thought the vehicle might have swerved to avoid a deer or something in the

road, so he slowed down to investigate the area. He saw nothing, so he turned on his patrol

car’s video camera and accelerated to get closer to the vehicle.

¶5      Mantooth observed that the vehicle was a white pick-up truck and that it was now

closely following a camper trailer. Mantooth did not observe any other questionable driving

maneuvers, so he turned off his video camera. Shortly thereafter, the camper turned into a


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gas station, and the pick-up again swerved to the right and then left, crossing about a quarter

of its width into the center turn lane. The pick-up then returned to the driving lane.

Mantooth described the swerving as “drastic.” He turned his patrol car video camera back

on and activated his emergency lights to stop the pick-up. In response, the pick-up turned

into a parking lot, one rear wheel hitting the curb as it did so.

¶6      Mantooth approached the pick-up and asked Otto if he had been drinking. Otto

explained that he had been talking on a cellular telephone. Mantooth testified that Otto had

red, watery eyes and that he was slurring his words. He also noticed the smell of alcohol on

Otto’s person. Mantooth asked Otto to bring his driver’s license, registration and proof of

insurance to Mantooth’s patrol vehicle. Otto had some difficulty completing this request.

He initially retrieved an expired insurance card and registration papers for a different vehicle.

He returned to his vehicle for the correct paperwork and dropped his papers while getting out

of the pick-up. Mantooth performed a Horizontal Gaze Nystagmus (“HGN”) test on Otto.

He then advised Otto that he was under arrest for driving under the influence of alcohol and

transported him to the police department for further processing. Otto was also cited with

violating § 61-8-302, MCA, for “careless driving, by crossing centerline and following too

close[ly],” according to the citation.

¶7     Otto performed field sobriety tests at the police station and agreed to submit to a

breathalyzer test. Mantooth testified that the LED readout on the testing instrument reflected

a blood alcohol concentration of .159, but the printer attached to the testing instrument failed

to print the result on the printout card. Officer Tom Moring, who is a certified operator of

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the testing instrument, also observed the .159 reading, and testified that, other than the failure

to print the result, the instrument appeared to be functioning properly. Officer Moring

printed a blank test card and transcribed the instrument readings onto it.

¶8     Otto filed a motion to dismiss on the grounds that Mantooth lacked particularized

suspicion to stop his vehicle. He also filed a motion to suppress evidence of the breathalyzer

result on the grounds that it did not meet the definition of “test” as found in ARM

23.4.201(31). Both motions were denied. On July 21, 2003, Otto pled guilty and reserved

the right to appeal the denials of his motions. He further requested and was granted

suspension of the prosecution on the charge of Careless Driving, pursuant to § 61-8-302,

MCA, pending the outcome of this appeal.

                                 STANDARD OF REVIEW

¶9     We review a district court’s denial of a motion to dismiss de novo to determine

whether the decision was correct. State v. Loney, 2004 MT 204, ¶ 6, 322 Mont. 305, ¶ 6, 95

P.3d 691, ¶ 6 (citation omitted). 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 the

court’s interpretation and application of the law is correct. State v. Marks, 2002 MT 255,

¶ 10, 312 Mont. 169, ¶ 10, 59 P.3d 369, ¶ 10 (citations omitted).




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                                        DISCUSSION

                                         ISSUE ONE

¶10     Did the District Court err when it denied Otto’s pre-trial Motion to Dismiss on the

grounds that the arresting officer did not have particularized suspicion to execute a traffic

stop?

¶11     Otto argues that he did not violate any traffic laws nor engage in erratic driving in any

manner that would have created the particularized suspicion requisite for Officer Mantooth

to have executed a traffic stop. He claims that by focusing on the word “drastic,” as the

officer described Otto’s swerving, the District Court found that there was sufficient objective

data for Officer Mantooth to stop Otto’s vehicle in contravention of significant evidence to

the contrary. Otto points out that Mantooth admitted that on the first observed swerve, he

did not see Otto cross either the fogline or the centerline of the highway, and that the

maneuver was consistent with avoiding a deer or other obstacle in the road. Otto further

claims that the second swerve which Mantooth observed likewise did not cause Otto to cross

the fogline. He admits that he did go partway into the center turn lane and then return to his

lane of travel, but maintains that to do so was not a violation of any traffic laws. Otto also

claims that the District Court misunderstood the design of the roadway where the swerve

occurred. He states that there is not a “centerline,” but rather a center turn lane which

divides the eastbound and westbound lanes of travel as U.S. Highway 87 passes through this

part of Lewistown. Otto claims that crossing into the center turn lane is not equivalent to



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crossing the centerline and that the District Court thus twice incorrectly described his vehicle

as having crossed the centerline.

¶12    The State responds that Officer Mantooth’s observations allowed him to form a

particularized suspicion which justified the investigative stop of Otto’s vehicle. The State

disagrees with Otto’s assertion that he committed no traffic offense when he crossed into the

center turn lane and then returned to his lane of travel. The State claims that Otto violated

§ 61-8-321(1), MCA, which provides that vehicles must be driven on the right side of the

roadway, except for certain situations--none of which applied in this particular instance. The

State points to three occurrences--Otto’s initial swerve, his following the camper trailer too

closely, and his second swerve--which led to Mantooth’s particularized suspicion.

¶13    Otto replies that Mantooth’s first observance of allegedly bad driving is irrelevant to

the particularized suspicion issue because Mantooth admits the swerve occurred entirely

within Otto’s lane of travel, and this Court has held that weaving within one’s own lane of

travel is insufficient to establish probable cause. Morris v. State, 2001 MT 13, ¶ 10, 304

Mont. 114, ¶ 10, 18 P.3d 1003, ¶ 10. Otto further argues that his swerve partway into the

center lane is not a violation under § 61-8-321, MCA, because moving into a center turn lane

is an exception to the rule that vehicles must always drive on the right.

¶14    Otto points to several Opinions in which we have held that questionable driving

behaviors observed by police officers were insufficient to allow for particularized suspicion

to execute a traffic stop. See State v. Reynolds (1995), 272 Mont. 46, 899 P.2d 540 (driving

which was “bordering on traveling too fast” and waiting too long at a four-way stop sign with

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no traffic laws broken insufficient for particularized suspicion); State v. Lafferty, 1998 MT

247, 291 Mont. 157, 967 P.2d 363 (crossing the fogline twice and driving on it once without

any traffic citations issued as a result of the maneuvers insufficient for particularized

suspicion); Morris, ¶ 10 (“drifting” over the fogline without being cited for any driving

offenses other than the DUI insufficient for particularized suspicion). But see State v.

Loiselle, 2001 MT 174, 306 Mont. 166, 30 P.3d 1097 (drifting across the fogline, turning

into parking lot of a closed business without signaling and then pulling back out into traffic

after “losing” patrol car, changing lanes without signaling, driving on the fogline, and

weaving slightly back and forth sufficient for particularized suspicion although no other

traffic citations issued).

¶15    Pursuant to § 46-5-401, MCA, a peace officer may stop any vehicle that is observed

in circumstances that create a particularized suspicion that the occupant has committed, is

committing, or is about to commit an offense. In order to prove the existence of a

particularized suspicion sufficient to stop a vehicle, the prosecution must show objective data

from which an experienced peace officer can make certain inferences and a resulting

suspicion that the occupant of the vehicle is engaged in wrongdoing. Lafferty, ¶ 9 (citation

omitted). Whether a particularized suspicion exists to justify an investigative stop is a

question of fact which depends on the totality of the circumstances. Lafferty, ¶ 10 (citation

omitted).

¶16    In Loney, we reversed a district court’s dismissal of charges against the defendant, on

the grounds that the officer who stopped her vehicle had the requisite particularized

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suspicion to do so. Loney, ¶ 16. Loney was observed crossing the centerline of a two-lane

highway in a no-passing zone three times at speeds of 65 to 70 miles per hour, and twice

crossing the fogline at the edge of the highway. Loney, ¶ 2. Loney was stopped by a police

officer and subsequently cited for DUI and failing to drive on the right side of the roadway

in violation of § 61-8-321, MCA. While the district court relied on Morris when it dismissed

the charges against Loney, we distinguished Morris, noting that, unlike Loney, Morris was

not cited for any driving offenses other than DUI. Loney, ¶ 9, citing Morris, ¶ 10.

¶17     In Loney, we relied upon Widdicombe v. State ex rel. Lafond, 2004 MT 49, 320 Mont.

133, 85 P.3d 1271, in which highway patrol officers stopped a vehicle which crossed the

centerline of a two-lane highway by a tire’s width at least three times. Widdicombe, ¶ 5.

The district court refused to reinstate Widdicombe’s suspended driver’s license and we

affirmed, explaining that driving a vehicle across the yellow centerline, absent one of the

statutory exceptions, constitutes a traffic violation under § 61-8-321, MCA. Widdicombe,

¶ 13.

¶18     Otto would have us distinguish crossing the centerline of a highway from crossing the

line which separates the driving lane from a center turn lane. He further maintains that his

crossing partway into the center turn lane meets one of the exceptions of § 61-8-321(1),

MCA. He does not, however, tell us which one. In Widdicombe, we explained that § 61-8-

321, MCA, prohibits drivers from “carelessly crossing the yellow center line and subjecting

themselves and other drivers on the road to the possibility of a head-on collision.”

Widdicombe, ¶ 12. In Otto’s case, crossing carelessly into a center turn lane where there is

                                              8
the possibility of meeting on-coming traffic likewise places drivers in the position of

potentially facing a head-on collision. Furthermore, the language of § 61-8-321, MCA,

enunciates the specific exceptions to the right-side rule. None of them apply to Otto’s

situation.

¶19    Observation of a traffic offense is sufficient to establish particularized suspicion.

Loney, ¶ 16. Otto’s protestations to the contrary, he was cited for another traffic offense.

Officer Mantooth observed Otto drive somewhere other than the right side of the roadway,

a possible violation of § 61-8-321, MCA. While Otto’s driving errors may not have been as

egregious as those in Loney or Widdicombe, unlike the defendant in Morris, he was cited for

a violation other than DUI.

¶20    Thus, we conclude the District Court correctly held that Officer Mantooth had the

requisite particularized suspicion to execute a traffic stop of Otto’s pick-up, pursuant to § 46-

5-401, MCA. We affirm its denial of Otto’s Motion to Dismiss.

                                         ISSUE TWO

¶21    Did the District Court err when it denied Otto’s pre-trial motion to suppress his

breathalyzer results when the machine failed to print the results?

¶22    Otto argues that the District Court erroneously denied his motion to suppress the

results of his breathalyzer test because no printed record of his breath test was obtained after

he blew into the breathalyzer machine. He claims that his breathalyzer sample did not meet

the definition of “test” as found in ARM 23.4.201(31), and thus the result should not have

been allowed as evidence of guilt.

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¶23    ARM 23.4.201(31), states in pertinent part:

       “Test”, in reference to a breath analysis, means a full and complete analysis
       of properly delivered breath sample(s). Such analysis is to be considered
       complete when the breath analysis instrument has executed its prescribed
       program, a final result is obtained and a printed record is produced by the
       breath test instrument.

¶24    The State points out Otto has not argued that the admission of his breathalyzer results

was prejudicial. This Court will not reverse a district court unless the record shows that the

error was prejudicial. Section 46-20-701(1), MCA. Furthermore, the State maintains, while

a defendant charged with DUI is entitled to the procedural safeguards contained within the

administrative rules, in the case at hand, Otto has misconstrued a definition as a substantive

directive.

¶25    The District Court found that, at the time the breathalyzer test was administered, the

printer malfunctioned through no apparent fault of Officers Mantooth and Moring. The

District Court further found that the breathalyzer did execute its prescribed program and did

show a final result--.159, as witnessed and manually written down by the officers. The

District Court further concluded that, while ARM 23.4.201(31) defines a “test,” there is no

other administrative rule which lists or states the consequences of a failure of the instrument

to actually print its result. The District Court acknowledged that “such a definition serves

no purpose, if there is no rule which specifies a consequence.”

¶26    Otto relies on our holdings in State v. Woods (1997), 285 Mont. 124, 947 P.2d 62, and

State v. McDonald (1985), 215 Mont. 340, 697 P.2d 1328. In McDonald, the results of a

blood test were found to be inadmissible by this Court because the person who drew the

                                              10
defendant’s blood at the hospital was not properly identified on the hospital record as

required by ARM 23.3.931. McDonald, 215 Mont. at 345-46, 697 P.2d at 1331. In Woods,

we reiterated that a defendant charged with a DUI is entitled to the procedural safeguards

contained within the administrative rules. Woods, 285 Mont. at 127, 947 P.2d at 63. (In a

special concurrence in Woods, it was explained that while the McDonald rule may be correct,

the McDonald decision itself is of questionable authority due to a change in the applicable

statutes which occurred during the course of that proceeding. Woods, 285 Mont. at 130, 947

P.2d at 65-66 (Nelson, J., specially concurring.).)

¶27    Regardless, we need not reach McDonald or Woods to render our decision here.

Significantly, and as the State notes, Otto has not argued that he was prejudiced by the

admission of the breathalyzer results. Moreover, the court had ample other evidence before

it, including the HGN results, the results from the field sobriety test performed at the police

station, Otto’s difficulty in retrieving and presenting the relevant paperwork, and the smell

of alcohol on his person, much of which was preserved on the patrol car videotape and all

of which was the subject of testimony by Officer Mantooth.

¶28    On the record before us, the prejudicial effect of the breathalyzer results has not been

either argued or established. Thus, we conclude the District Court’s denial of Otto’s Motion

to Suppress the breathalyzer results is not cause for reversal.

                                      CONCLUSION

¶29    For the foregoing reasons, we affirm the District Court.



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                               /S/ PATRICIA O. COTTER


We Concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART




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