State v. Wojtowicz

552 P.3d 669

2024 MT 146

STATE of Montana, Plaintiff and Appellee,

v.Thomas WOJTOWICZ, Defendant and Appellant.

DA 23-0026

Supreme Court of Montana.

Submitted on Briefs: May 29, 2024

Decided: July 16, 2024

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-21-201C, Honorable John C. Brown, Presiding Judge

For Appellant: Jami L. Rebsom, Jami Rebsom Law Firm PLLC, Livingston, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana, Audrey Cromwell, Gallatin County Attorney, Eric N. Kitzmiller, Deputy County Attorney, Bozeman, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Appellant, Thomas Wojtowicz (Thomas), appeals from the August 1, 2022 Findings of Fact, Conclusions of Law, and Order Regarding Defendant’s Motions issued by the Eighteenth Judicial District Court, Gallatin County and the subsequent jury verdict finding him guilty of driving under the influence of alcohol (DUI).

¶2 We restate the issues on appeal as follows:

1. Whether the District Court erred in admitting the blood toxicology evidence?

2 Whether the District Court erred in denying Defendant’s motion to suppress?

3 Whether there was sufficient evidence to prove Defendant was in actual physical control of his vehicle?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On May 7, 2021, citizen John Barrick called police to report a man he had seen in a bar earlier walked out of a business complex, stepped off the curb, fell on the asphalt, and then crawled across the parking lot to his vehicle and got into the driver’s seat. Barrick was concerned the man was impaired and might drive and hurt himself or someone else. Barrick provided a description of the vehicle—a green Ford Escape— and the license plate number. Officer Haydon responded to the call, made contact with the man in the driver’s seat—later identified as Thomas—advising him someone had called in with concerns. Officer Haydon asked Thomas where his keys were and Thomas picked up the keys from the center console and showed them to the officer. Officer Haydon could smell the odor of alcohol coming from Thomas and noted his speech was slurred. Officer Haydon inquired as to how much Thomas had to drink that day to which Thomas responded he had consumed a couple of shots and a glass of wine. Officer Haydon explained to Thomas that the circumstances— Thomas’s difficulty in maneuvering to his vehicle, unlocking it, sitting in the driver’s seat with the key in reach—indicated he was intoxicated and in actual physical control of his vehicle, Thomas does not contest that he was intoxicated but contests that he was going to drive his vehicle. He advised officer Haydon he was going to wait for his girlfriend, Connie, to come pick him up when she got off work. Officer Haydon attempted to contact Connie to confirm the information Thomas provided but she did not answer his calls.

¶4 Officer Haydon determined it appropriate to administer field sobriety tests (FSTs). As Thomas had an injured leg, he did not administer the walk-and-turn or one-legged stand. He did perform non-standardized FSTs which Officer Haydon interpreted to show difficulty performing divided attention tasks. Officer Haydon requested Thomas provide a preliminary breath test. Thomas refused. Officer Haydon then arrested Thomas for DUI. When discussing with Thomas what to do with the dog that was in his vehicle, Thomas provided Officer Haydon the telephone number to Connie’s work. Officer Haydon called that number and Connie answered. Officer Haydon arranged with Connie to have someone pick up the dog He also asked her if she had talked with Thomas about picking him up after work. Reportedly, she advised Officer Haydon she could not leave work, had not talked to Thomas about picking him up, but had planned to see him after work.

¶5 While waiting for someone to pick up the dog, Officer Haydon read Thomas the implied consent advisory form and requested Thomas provide a breathalyzer for the Intoxilyzer 8000. Thomas refused to provide a breath sample. Officer Haydon rolled up the windows of Thomas’s vehicle, locked it, and retrieved Thomas’s cell phone and keys. As Thomas refused the breathalyzer, Officer Haydon then sought and received a warrant for a blood draw.

¶6 Thomas was charged with felony DUI based on actual physical control of his vehicle. Thomas filed a motion to suppress which the District Court denied. Thomas proceeded to trial. At trial, Thomas objected to admission of the toxicology evidence of the Montana Crime Lab who tested Thomas’s blood samples for alcohol concentration—showing a blood alcohol content of "0.274, plus or minus 0.020 grams of ethanol per 100 milliliters of whole blood"—on the basis of insufficient foundation. The District Court admitted the toxicology evidence over objection. At the conclusion of the State’s case, Thomas brought a motion to dismiss asserting the State failed to present sufficient evidence to prove Thomas was in actual physical control of the vehicle. The District Court denied the motion. The jury returned a guilty verdict. Thomas appeals. Additional facts will be discussed as necessary to address the issues presented below.

STANDARD OF REVIEW

[1–4] ¶7 The parties agree as to the standards of review applicable to this case. We review a district court’s evidentiary ruling, including whether an adequate foundation for admission has been presented, for an abuse of discretion. State v. Weber, 2016 MT 138, ¶11, 383 Mont. 506, 373 P.3d 26; Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561; State v. Delaney, 1999 MT 317, ¶ 14, 297 Mont. 263, 991 P.2d 461. We review a district court’s interpretation of an evidentiary rule or statute de novo. State v. Nichols, 2014 MT 343, ¶ 8, 377 Mont. 384, 339 P.3d 1274. We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous or its interpretation and application of law are correct. State v. Questo, 2019 MT 112,¶ 9, 395 Mont. 446, 443 P.3d 401; State v. Copelton, 2006 MT 182, ¶ 8, 333 Mont. 91, 140 P.3d 1074. Finally, we review a district court’s denial of a motion to dismiss based on insufficiency of the evidence in a criminal case by determining whether, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v Hamilton, 2002 MT 263, ¶ 10, 312 Mont. 249, 59 P.3d 387; State v. Ford, 278 Mont. 353, 926 P.2d 245 (1996).

DISCUSSION

¶8 1 Whether the District Court erred in admitting the blood toxicology evidence?

¶9 Thomas asserts the District Court unlawfully admitted the blood toxicology results from his court-ordered blood draw without foundation—specifically, the collection tubes were improper as Officer Haydon failed to log any lot numbers or expiration dates for the collection tubes contrary to the requirements of Admin. R. M. 23.4.220(5) and (6). Admin. R. M. 23.4.220(5) and (6) provide:

(5) The division will provide collection kits consisting of approved collection tubes and the appropriate request forms for collection of blood samples. The division reserves the right to accept or reject any blood sample submitted in a commercially available collection kit.

(6) The approved collection tube will be one that contains a preservative, sodium fluoride or its equivalent, and an anticoagulant, potassium oxalate or its equivalent. The use of other types of collection tubes will be at the discretion of the division.

Thomas asserts these provisions "require the blood request form to be properly complied with in order to lay the proper foundation for the blood draw." Thomas further asserts the Blood Test Request Form specifically requires identification of the lot number for the collection vials and identification of the expiration date of each collection vial, neither of which were provided in relation to Thomas’s collection vials.

[5] ¶10 The State asserts evidence of a person’s blood alcohol content is admissible in a criminal trial pursuant to §§ 61-8-404(1)(a), -404(1)(b)(ii), -405(1), MCA;¹ Admin R. M. 23.4.220; and State ex rel. McGrath v. Twenty-First Judicial Dist., 2001 MT 305, ¶ 17, 307 Mont. 491, 38 P.3d 820 (A DUI defendant "is entitled to the procedural safeguards contained in the Administrative Rules of Montana."). The State asserts the procedural safeguards provided therein were met. Thomas’s only objection with regard to admission of his blood toxicology results was based on the unknown expiration date of the vacuum seals on the vials used to collect his blood. He does not identify how this failed to comply with the statutory provisions of §§ 61-8-404(1)(a), -404(1)(b)(ii), -405(1), MCA, or Admin R. M. 23.4.220 as there was no evidence the vacuum seals were defective. We agree with the State.

¶11 At trial, the State presented three witnesses who testified regarding the blood collection and testing at issue here—Officer Haydon, David Singh, the clinical lab scientist at the Big Sky Medical Center who drew Thomas’s blood samples, and April Mitchell, the forensic toxicologist at the Montana State Crime Lab (Crime Lab) who tested the blood samples. Officer Haydon testified the Crime Lab provided his office with sealed kits containing the necessary items to obtain a blood sample. Officer Haydon provided Mr. Singh with the sealed collection kit provided by the Crime Lab and remained with Thomas and Mr. Singh during the blood draw. Mr. Singh testified he received the test kit from Officer Haydop, examined the collection vials and noted them to be in good condition, used the equipment and the non-alcoholic cleansing supplies that came in the kit, drew two vials of blood from Thomas, packaged the vials in bubble wrap, and sealed it with tamperproof evidence tape, Mr. Singh then signed and initialed the Blood Test...