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State v. Besaw

Court of Appeals of Idaho

June 21, 2013

STATE of Idaho, Plaintiff-Respondent,
v.
George Joseph BESAW, Jr., Defendant-Appellant.

Review Denied Sept. 4, 2013.

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Clark and Feeney, Lewiston, for appellant. Charles M. Stroschein argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

LANSING, Judge.

George Joseph Besaw, Jr. appeals from his conviction of misdemeanor driving under the influence with an excessive alcohol concentration of .20 or above. Besaw contends that the magistrate court erred in its pretrial rulings concerning the admissibility of field sobriety tests and the breath alcohol concentration test. We affirm.

I.

BACKGROUND

In the early morning hours of January 16, 2011, an Idaho State Police trooper stopped a vehicle driven by Besaw for failing to signal and failing to maintain its lane of travel. As the trooper spoke with Besaw, he detected the odor of an alcoholic beverage coming from the vehicle and observed that Besaw's eyes were bloodshot. The trooper conducted sobriety tests and concluded that Besaw was intoxicated. Besaw was arrested for driving under the influence, and the trooper administered a breath alcohol concentration (BAC) test on a portable device, the Lifeloc-FC20. The test results indicated breath alcohol concentrations of .219 and .201.

Besaw was charged with misdemeanor driving under the influence with an excessive alcohol concentration of .20 or above, Idaho Code ยงยง 18-8004(1)(a), -8004C(1). On a pretrial motion, Besaw sought to preclude the prosecution from presenting evidence of the field sobriety tests and the results of the BAC test. Following a hearing at which the trooper testified, the magistrate court specified what evidence it would allow at trial regarding the field sobriety tests and denied the remainder of the motion. Besaw was convicted after a jury trial. He appealed to the district court, asserting error in the denial of his motions to exclude the field sobriety tests and breath test from evidence. The district court affirmed and this appeal followed.

II.

STANDARD OF REVIEW

On review of a decision of the district court, rendered in its appellate capacity, we examine the magistrate division record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008).

III.

ANALYSIS

A. The Field Sobriety Tests

Three field sobriety tests were administered to Besaw: a horizontal gaze nystagmus or " HGN" test, a one-leg stand test, and a walk-and-turn test. By his pretrial motion concerning the admissibility of the tests, Besaw sought:

to prohibit the introduction of any field sobriety tests until the State lays a proper foundation to show: that such tests are reliable in establishing the effects of alcohol on the human body; that the tests were conducted in the correct fashion; that said tests were approved by the proper governmental agency. Defendant requests a Parkinson or I.R.E., Rule 702 hearing.

In his argument to the magistrate court, Besaw contended that Idaho appellate courts had not decided the admissibility of field sobriety test evidence under Idaho Rule of Evidence 702[1] and that a further " Rule 702

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hearing" was required at which the State would have to establish the reliability of such evidence before the trooper's expert testimony concerning the same should be allowed.

The magistrate court disagreed. Based upon two Idaho Supreme Court opinions, State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991), and State v. Gleason, 123 Idaho 62, 844 P.2d 691 (1992), the court concluded that the Idaho Supreme Court had already decided that with a proper foundation showing the tester's expertise in conducting the test, HGN evidence was reliable and admissible under I.R.E. 702, but that permissible expert opinion on the matter was confined to certain limited inferences. Accordingly, the magistrate court limited the trooper's testimony to a conclusion that nystagmus, along with Besaw's performance on other field sobriety tests, may be an indicator of intoxication and an opinion as to whether Besaw was intoxicated. With regard to the two remaining field sobriety tests— a one-leg stand test and a walk-and-turn test— the magistrate held that Rule 702 was not implicated because the tests were not scientific.

1. HGN test

Besaw first asserts that the trooper's testimony about the HGN test ought not to have been admitted without further foundation to establish the reliability of that test as an indicator of intoxication. An explanation of his argument must begin with the Idaho ...


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