                                          No. 04-621

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 338


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JEREMY SPENCER,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DC 04-0031,
                     The Honorable Ingrid Gustafson, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     James M. Siegman, Deputy Public Defender, Billings, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Joslyn M. Hunt,
                     Assistant Attorney General, Helena, Montana

                     Dennis Paxinos, Yellowstone County Attorney; Ann-Marie McKittrick,
                     Deputy County Attorney, Billings, Montana


                                            Submitted on Briefs: July 19, 2005

                                                        Decided: December 27, 2005

Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Jeremy Spencer (Spencer) appeals from an order of the Thirteenth Judicial District

Court, Yellowstone County, excluding testimony. We affirm.

¶2     The issue on appeal is whether the District Court erred in excluding testimony offered

by Spencer to show that his speedometer was working incorrectly and the size of his

vehicle’s tires had an effect on the speedometer.

¶3     During the early morning hours of April 25, 2003, Deputy Sheriff Micky Eckart

(Eckart) saw a pickup driving on Highway 87 at a high rate of speed. Eckart’s radar

determined that the pickup was traveling 57 m.p.h. in a 45 m.p.h. zone. Eckart turned around

to pursue the pickup, which appeared to speed up. Eckart had to drive 95 m.p.h. to catch the

pickup. Once the pickup was pulled over, Eckart learned that Spencer was the driver. Eckart

could smell a strong odor of alcohol coming from Spencer, and observed that his eyes were

bloodshot and glossy. Eckart then had Spencer perform standard field sobriety tests.

¶4     Spencer’s smell, appearance and poor test performance led to his arrest for driving

under the influence (DUI).

¶5     Spencer was initially found guilty of DUI in Justice Court. He appealed to the

District Court and filed a notice that he intended to call one Wes Nelson (Nelson) as an

expert witness to testify that the speedometer in Spencer’s pickup had not been functioning

properly. The State objected to Nelson’s testimony in a motion in limine. The District Court

granted this motion, explaining that Nelson’s testimony was irrelevant. Nelson was found

guilty of DUI in District Court and judgment was entered on September 7, 2004. This appeal


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followed.

¶6     We review a district court’s evidentiary ruling to determine whether the district court

abused its discretion. Payne v. Knutson, 2004 MT 271, ¶ 20, 323 Mont. 165, ¶ 20, 99 P.3d

200, ¶ 20. “A district court abuses its discretion when it acts arbitrarily without employment

of conscientious judgment or exceeds the bounds of reason, resulting in substantial

injustice.” State v. Riggs, 2005 MT 124, ¶ 18, 327 Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18.

¶7     Spencer argues that the speed of a vehicle is relevant in determining whether a

driver’s ability to safely operate a vehicle has been diminished, citing Bauer v. State (1996),

275 Mont. 119, 126, 910 P.2d 886, 890, and State v. Palmer (1991), 247 Mont. 210, 217,

805 P.2d 580, 584. He contends that the District Court abused its discretion in excluding the

offered testimony on the grounds that it was irrelevant. He also argues that, even if Nelson

was not an expert, he should have been allowed to testify as a lay witness regarding the

effect of a vehicle’s tire-size on a vehicle’s speedometer.

¶8     The State argues that in this case the speed of Spencer’s truck is relevant only

concerning whether Eckart had a particularized suspicion to stop Spencer, because speed had

no part in the DUI charge.

¶9     In Bauer, this Court concluded that a deputy’s observation of a vehicle crossing the

center line and driving at a speed well over the speed limit sufficiently supported a

particularized suspicion that an offense had been committed. Bauer, 275 Mont. at 126, 910

P.2d at 890. In Bauer, as in this case, speed was not a part of the proof of impaired driving.

The proof of impaired driving focused on the defendant’s breath, eyes, speech, and



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performance of physical maneuvers. Bauer, 275 Mont. at 126-27, 910 P.2d at 890. Thus,

Bauer does not assist Spencer’s argument.

¶10    In Palmer, this Court concluded that speeding, as well as swerving off the road,

plunging over two embankments, driving down ditches, driving across fields, smashing

through a fence, and failing to stop for three police officers suggested that the driver was

intoxicated. Palmer, 247 Mont. at 217, 805 P.2d at 584. Again, in the present case the State

did not attempt to prove that Spencer was intoxicated because he was speeding. Thus,

Palmer is inapposite.

¶11    Spencer argues, in effect, that his ability to drive was not diminished because he

justifiably thought he was going slower than he was. To support this argument, he offered

evidence regarding the alleged improper functioning of the speedometer. Such evidence is

not relevant to whether a person is driving under the influence of an intoxicating substance.

¶12    We decline to reverse the District Court’s discretionary decision to exclude the

offered evidence in this instance where the State did not attempt to prove that Spencer’s

ability to drive was diminished because he was speeding. In excluding the offered evidence

the District Court did not act arbitrarily, without employment of conscientious judgment, and

its decision did not exceed the bounds of reason, resulting in substantial injustice.

¶13    As we conclude that evidence concerning the speedometer in Spencer’s pickup was

properly excluded, it is not necessary to discuss whether Nelson could give his expert

opinion under Rule 702, M.R.Evid., or his lay opinion under Rule 701, M.R.Evid.




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¶14   Affirmed.



                             /S/ JOHN WARNER


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE




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