State v. Giacomini

A Billings Police Officer observed Giacomini driving the wrong-way on a one-way street and initiated a traffic stop. The Officer testified that he noticed Giacomini had watery, blood-shot eyes and smelled of alcohol so he conducted a series of Field Sobriety Tests which indicated impairment. When asked to take a preliminary breath test, Giacomini refused – so he was arrested and taken to Yellowstone County Detention Facility for further testing.

At the detention facility, Giacomini again failed the field sobriety tests and a search showed he had previously refused a breath test in 1990. Based on those factors, the officer applied for and obtained a search warrant for a sample of Giacomini’s blood. Although he was apparently uncooperative, a blood sample was taken and produced a BAC of 0.12. Giacomini was charged with DUI under Mont. Code Ann. § 61-8-401(1)(a) in Municipal Court.

Giacomini filed a motion to suppress the results of the blood test arguing that the draw violated the Montana Constitution and was not supported by probable cause. The Municipal Court denied the motion on the basis that the officer did not violate Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant. Approximately a month later, Giacomini filed a motion entitled “Request for Hearing” and asked the Municipal Court to reconsider the suppression issue because the video of the blood draw showed that Mr. Giacomini was “continually stuck” with needles. That motion was denied as untimely. Giacomini pled nolo contendere, reserving the suppression issues for appeal. The District Court affirmed the Municipal Court’s rulings.

On Appeal to the Montana Supreme Court, Giacomini challenged the legality of the blood draw and the Municipal Court’s denial of his motion to reconsider as untimely. The Supreme Court found that the warrant was supported by probable cause and did not violate his constitutional right to privacy. It also found that the Municipal Court did not err by denying his motion as untimely.

In challenging the warrant, Giacomini argued that his prior refusal of a breath test was insufficient to establish probable cause to support a warrant to draw his blood. The Montana Supreme Court disagreed, finding that the warrant was supported by a number of different facts: 1) he had driven the wrong way down the road; 2) he had watery and bloodshot eyes; 3) he smelled of alcohol; 4) he swayed and staggered; and 5) he performed poorly on the field sobriety tests.

Giacomini also cited to Missouri v. McNeely, a U.S. Supreme Court decision which held that the natural dissipation of alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying a warrantless blood draw in a DUI investigation. Giacomini applied this to his situation, arguing that if dissipation is insufficient for exigent circumstances, it is insufficient for probable cause. The Montana Supreme Court ruled that the probable cause determination was not based solely on alcohol dissipation, included considerable other evidence, and the case did not involve a warrantless blood draw based on exigent circumstances so McNeely did not apply.

The Supreme Court declined to address Giacomini’s constitutional challenge to the blood draw.

Finally, the Supreme Court upheld the Municipal Court’s decision that the Request for hearing was untimely. The Court believed that it was essentially a second motion to suppress, and found that it should have been raised before the omnibus hearing. Because it was filed approximately three months after that date, it was untimely.

Ignition Interlock Devices and Montana DUI

According to Wikipedia, an Ignition Interlock Device is:

a mechanism, like a breathalyzer, installed on a motor vehicle’s dashboard. Before the vehicle’s motor can be started, the driver first must exhale into the device; if the resultant breath-alcohol concentration analyzed result is greater than the programmed blood alcohol concentration, the device prevents the engine from being started.

Ignition Interlock Montana DUI

Once the vehicle has started, the device is going to randomly require additional samples to prevent someone other than the driver from blowing into the machine. If the driver fails to provide a sample, or the sample shows an impermissible alcohol concentration, the machine will log the event and then set off an alarm until the vehicle is turned off or a clean breath sample is provided.

Under Montana law, an IID can be required because of different situations. The newly created sentencing statute for Aggravated DUI specifically contemplates use of the machine as a part of a suspended sentence. But don’t think that these are only limited to aggravated charges.

Under Section 61-8-442, an IID may be required on a conviction for DUI

or DUI per se. In the case of a person’s first conviction it is left to the Court’s discretion to decide whether or not to require the interlock device. In my experience, it is rarely required for first time offenders not charged with Aggravated DUI. However, because extreme situations exist this is left to the judge’s discretion. However, when facing a second or subsequent conviction for DUI, the court must either require the IID for any period of a probationary license, require the person to participate in the 24/7 program, or order that each vehicle owned by the person be seized and forfeited.

Interlock devices are inconvenient, but better than not being allowed to drive. For most of my clients, the more pressing concern is the cost and the invasive nature of the device.

Aggravated DUI

In 2011, Montana expanded its DUI laws by adding a new entry to the list: Aggravated DUI. Defined at Section 61-8-722, MCA, the offense of Aggravated DUI piggybacks on the other DUI offenses and provides for enhanced penalties when certain factors are present. Under the law, a person commits the offense of aggravated driving under the influence if the person is in violation of 61-8-401 (DUI), 61-8-406 (DUI per se), or 61-8-411 (DUI marijuana) and at the time of the offense:

(a) The person’s blood alcohol concentration is 0.16 or more;

(b) The person is under the order of a court or the department to equip any motor vehicle the person operates with an approved ignition interlock device;

(c) The person’s driver’s license or privilege to drive is suspended, cancelled, or revoked as a result of a prior violation of 61-8-401, 61-8-402, 61-8-406, or 61-8-411;

(d) The person refuses to provide a breath or blood sample as required in 61-8-402 and the person’s driver’s license or privilege to drive was suspended, cancelled, or revoked under 61-8-402 within 10 years of the commission of the present offense; or

(e) The person has one prior conviction or pending charge for the violation of 45-5-106, 45-5-205, 61-8-401, 61-8-406, 61-8-411.

So, if you’re convicted of DUI and one of the factors listed above as (a)-(e) exist, you can be sentenced for Aggravated DUI. A person convicted of the offense of aggravated driving under the influence shall be punished by:

(a) a fine of $1,000; and

(b) a term of imprisonment of not more than 1 year, part of which may be suspended, except for the mandatory minimum sentences set forth in 61-8-714

If a suspended sentence is imposed, the sentencing court may order additional restrictions, such as:

(a) the person is subject to all conditions of the suspended sentence imposed by the court, including mandatory participation in drug or DUI courts if available;

(b) the person is subject to all conditions of the 24/7 sobriety and drug monitoring program if available and if imposed by the court; and

(c) if the person violates any condition of the suspended sentence or any treatment required, the court may impose the remainder of any imprisonment term that was imposed and suspended.

Practically, what does this mean? If a person is convicted of DUI per se and the state proves that his blood alcohol level was 0.16 or higher at the time, he can be punished under the Aggravated DUI statutes. Ordinarily for DUI per se, the maximum sentence would be six months. But because aggravated DUI applies, the maximum sentence doubles to one year. So, the offender can be given a one year sentence with some portion of it suspended. The mandatory minimum would be 24 hours, so if the court suspends all but 24 hours that would leave a suspended sentence of 364 days. In addition to any other conditions imposed on the suspended sentence, the Aggravated DUI statute specifically allows the court to require that the person be subject to the 24/7 program for that year. This will require invasive and expensive alcohol monitoring for the duration of the suspended sentence.

The big takeaway here is that conviction for Aggravated DUI is a much more serious offense. DUIs should never be taken lightly, but this is another level beyond that. You risk being under court supervision for a year and being subject to alcohol monitoring (at your expense) for that entire time. If you’ve been charged with Aggravated DUI (or think you qualify under the factors listed above) I’d encourage you to immediately discuss the situation with a Montana DUI lawyer who can evaluate your specific circumstances and give you the right advice.

If you’d like to talk to me about your case, please call (406) 752-6373.

The Community Caretaker Doctrine and DUI

State v. Marcial: 2013 MT 242

Marco Marcial pled guilty in Bozeman Municipal Court to DUI. He appealed to District Court, challenging the denial of his motion to suppress, and the Municipal Court was affirmed. He then appealed that decision to the Montana Supreme Court who affirmed the District Court, but on alternate grounds.

In May of 2010, Marcial was driving in Bozeman around 1:00 a.m. when Sergeant Munter watched him execute a hard left turn, drive up on the sidewalk and then onto the grass before coming to an abrupt stop with his car perpendicular to the street. Sgt. Munter was concerned that Marcial had collided with a fire hydrant during this maneuver so he turned around and activated his rear warning lights, but not his top lights. Upon investigation, Sgt. Munter determined that there was no damage to Marcial’s vehicle or the fire hydrant.

Nonetheless, Sgt. Munter opened Marcial’s door and asked if he was ok. While speaking, he noticed the smell of alchohol and proceeded with a DUI investigation which resulted in Marcial’s arrest on suspicion of DUI. Marcial was not issued a traffic citation.

A suppression hearing was held in Bozeman Municipal Court where Sgt. Munter testified that his initial contact was a welfare check to ascertain if there was damage from colliding with the fire hydrant. The Municipal Judge found that the initial investigation was justified by the community caretaker doctrine, which then ripened into a DUI investigation. The District Court agreed, and specifically found that Sgt. Munter had objective, specific and articulable facts to suspect that a citizen was in need of help.

Ultimately, the Montana Supreme Court affirmed Marcial’s conviction. But, it rejected the argument that the community caretaker doctrine justified the stop – and its analysis of that law is very interesting. Montana adopted the community caretaker doctrine in 2002, stating that:

Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

The community caretaker doctrine is about certain interactions between police and citizens that is unrelated to the detection and investigation of crimes. It may include assisting motorists who are stranded, involved in accidents, or otherwise in need of assistance. It can, in certain circumstances, evolve into an investigation of a crime – but it should not be a pretext for an investigation.

In this case, the Montana Supreme Court did not find that the community caretaker doctrine justified the search. They emphasized that the doctrine is intended to apply in situations where a citizen is in need of help or is in peril and should not typically involve a seizure. Given how common the community caretaker doctrine has become in justifying stops that result in arrests, this should serve as a reminder that it is not a blank check.

Marcial’s conviction was affirmed because Sgt. Munter’s observations did give rise to a particularized suspicion that a traffic offense had occurred – and that was sufficient to justify an investigative stop. But the Court’s rejection of the community caretaker doctrine’s application is still an important decision upholding the privacy rights of Montana citizens.

Date Rape Drugs and DUI in Montana

In general, criminal acts require two separate elements: 1) intention; and 2) action. Commiting an action against your will, or involuntarily, is usually not criminal. In Montana, this is codified at Section 45-2-202, MCA, which provides:

A material element of every offense is a voluntary act, which includes an omission to perform a duty that the law imposes on the offender and that the offender is physically capable of performing, except for deliberate homicide under 45–5–102(1)(b) for which there must be a voluntary act only as to the underlying felony. Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of the offender’s control of the thing for a sufficient time to have been able to terminate control.

For most criminal offenses, it is a defense that the act was done involuntarily, such as during a seizure. However, there is a class of offenses where this doesn’t apply. Absolute liability offenses require no showing of intent. In Montana, DUI is an absolute liability offense. Section 61-8-401(7) (“Absolute liability … will be imposed for a violation of this section.”). This means that it is no defense to a charge of DUI that you didn’t intend to drive drunk.

At least mostly.

In City of Missoula v. Paffhausen, the Montana Supreme Court examined the defense of automatism for the first time. Paffhausen argued that she had been given a date rape drug that caused her impairment.
Date Rape Drug and DUIPaffhuasen acknowledged that DUI is an absolute liability offense, and that she met two of the three elements of DUI: on a public street and impaired. However, she maintained, the date rape drug prevented her from voluntarily driving or being in actual physical control.The City filed a motion to prevent her from using the defense, arguing that it can only be asserted when a defendant’s mental state constitutes an element of the charged offense. Since DUI is absolute liability, the defense should not be available. The city court agreed and Paffhausen appealed all the way to the Montana Supreme Court.

After evaluating past Montana DUI caselaw in State v. Leprowse, the Montana Supreme Court held that absolute liability does not necessarily mean absolute liability. It found that allowing the automatism defense would meet certain other policies embodied in the Montana Code. The majority concluded that Paffhausen was entitled to raise automatism as an affirmative defense based on her claim of being subjected to a date rape drug. In order to prove her automatism defense, the Court went on, she will need to prove by admissible evidence that she did not act voluntarily when she drove her vehicle. Once she offers admissible evidence to this effect, it will be the State’s burden to prove (beyond a reasonable doubt) that she did act voluntarily.

City of Missoula v. Paffhausen, 2012 MT 265

Omnibus Hearings in Montana

Following an arrest for DUI in Montana, a defendant’s first hearing is an initial appearance. The purpose of that hearing is for the Court to advise the defendant of the charges against him and the maximum possible penalties he faces. It is usually combined with an arraignment, where the defendant enters a plea to the charges (usually not guilty). By pleading not guilty, the defendant sets the case in motion and toward a trial. As I’ve said before, must first time DUIs do not go to trial, but while it is pending – everyone will treat the case as if it is going to trial (or at least they should).

The next regularly scheduled hearing in a DUI case is the omnibus hearing. The name is often shortened to “omni.” Statutorily, the hearing is defined at 46-13-110, MCA which requires that it be held within a reasonable time following the entry of a not guilty plea but not less than 30 days before trial. The purpose of the hearing, according to the statute, is to expedite the procedures leading up to the trial of the defendant. Technically, the presence of the defendant is not required at the omnibus hearing. However, often the conditions of release following a DUI arrest require a person to attend all court hearings. This complicates it. On the other side of the issue, the Montana Supreme Court has decided that omnibus hearings constitute a “critical stage” of the proceeding and qualify as a hearing that the defendant has an absolute right to attend. For those reasons, if you are going to be absent from your omnibus hearing, it’s a good idea to inform the Court ahead of time.

The prosecution and the counsel for the defense are required to attend the hearing, and need to be prepared to discuss any pretrial matter appropriate to the case. This includes, without limitation:

(a) joinder and severance of offenses or defendants;

(b) double jeopardy;

(c) the need for exclusion of the public and for sealing records of any pretrial proceedings;

(d) notification of the existence of a plea agreement;

(e) disclosure and discovery motions;

(f) notice of reliance on certain defenses;

(g) notice of seeking persistent felony offender status;

(h) motion to suppress;

(i) motion to dismiss;

(j) motion for change of place of trial;

(k) reasonableness of bail; and

(l) stipulations.

The omnibus hearing provides a deadline for many of the motions listed above. For example, a party has a statutory mandate to bring a motion to suppress at or before the omnibus hearing, or at the latest by a subsequent date ordered by the court, and the consequence of failure to do so is waiver of the right to bring a motion to suppress. State v. VonBergan, 2003 MT 265.

Interestingly, the fact that the hearing is required by statute does not necessarily mean that the Courts are required to hold one. Several times, the Montana Supreme Court has found that the failure to hold an omnibus hearing did not constitute reversible error. In State v. Allum (2005 MT 150), the Court found that the Defendant was not entitled to reversal of his conviction for criminal trespass on the grounds that the municipal court did not hold an omnibus hearing, absent any showing that the defendant was prejudiced by the lack of hearing. Likewise, in State v. Hildreth (267 Mont. 423 (1994)), the Court found that the Defendant was not prejudiced by the trial court’s failure to hold an omnibus hearing in a prosecution for sexual assault.

Constitutionally Firm Past Convictions in Felony DUI

I’ve talked before you about how your total number of DUIs is calculated. What people often forget is that all your past DUIs are fair game, even when they happen out of state. Often defendants will be shocked to find themselves charged with a second or third offense, thinking that because it happened in Vermont is doesn’t count in Montana. It does.

But, there’s a flip side to that rule. The conviction must be for a DUI-equivalent offense, and it must be constitutionally firm. Even for most lawyers, the term constitutionally firm (at least in this context) may be a bit vague. However, the Montana Supreme Court recently had a chance to address the issue in State v. Nixon (2012 MT 316).

On September 13, 2010, Kennth Nixon was charged with felony DUI for his fourth or subsequent DUI. Among his past convictions was a 1992 DUI conviction in Ravalli County Justice Court. Nixon challenged that conviction as constitutionally infirm. Specifically, he said, that the Ravalli County Justice Court failed to obtain a valid and express waiver of the right to counsel prior to taking his guilty plea. Nixon submitted an affidavit in support of the argument. It said:

On December 24, 1992 I pled guilty to DUI in Ravalli County Justice Court [.] I was indigent and unable to retain a private attorney. I was not represented by a lawyer in this proceeding. Prior to entering my guilty plea on December 24, 1992 I was not expressly advised of my right to counsel and I did not expressly and explicitly waive that right prior to pleading guilty.

The District Court (his trial court) found that the conviction was firm, and found that Nixon had failed to meet his burdent o come forward with an affirmative defense establishing that the 1992 conviction was obtained in violation of the Constitution. Following that decision, Nixon entered a no contest plea to the felony DUI charge, and appealed.

The Montana Supreme Court explained that a constitutionally inform prior conviction used for enhancement purposes amounts to sentencing based upon misinformation, which is prohibited by the Due Process Clause of Article II, Section 17 of the Montana Constitution. The Court uses a three-step framework for evaluating collateral challenges to prior convictions offered for sentence enhancement purposes:

1. a rebuttable presumption of regularity attaches to the prior conviction, and we presume that the convicting court complied with the law in all respects;

2. the defendant has the burden to overcome the presumption of regularity by producing affirmative evidence and persuading the court, by a preponderance of the evidence, that the prior conviction is constitutionally infirm; and

3. once the defendant has done so, the State has the burden to rebut the defendant’s evidence. There is no burden of proof imposed on the State to show that the prior conviction is valid, however. The State’s burden, rather, is only to rebut the defendant’s showing of invalidity.

A defendant can’t point to an ambiguous or silent record, but must produce affirmative evidence establishing that the prior conviction was constitutionally infirm. Affirmative evidence is evidence that demonstrates that certain facts actually existed at some point in the past – e.g., that an indigent defendant actually requested the appointment of counsel but counsel was actually refused. It takes more than ambiguous documents, self-serving and conclusory inferences, or forcing the State to prove the validity of the prior conviction (which is already presumed).

In reviewing Nixon’s affidavit, the Supreme Court reiterated that the defendant bears both the burden of production and persuasion. The burden of production requires the defendant to produce some evidence with establishes his claim. Nixon met that requirement. What he failed to do was persuade. Specifically, the Supreme Court looked to testimony by Judge Sabo, who was a judge in Ravalli County Justice Court at the time Nixon was sentenced. While she was assigned his case, it was actually Judge Sperry who took Nixon’s plea and sentenced him. Because Nixon failed to persuade the District Court, in the face of Judge Sabo’s contrary testimony, and because his own testimony included some uncertainty, the Supreme Court found that he had failed to carry the full burden imposed and denied his appeal.

This decision seems to contradict the Court’s prior decisions in State v. Howard (2002 MT 276) and State v. Walker (2008 MT 244). In Howard and Walker, the Court recognized that a defendant’s unequivocal and sworn statements that he did not waive the right to counsel constituted direct evidence which rebuts the presumption of regularity. In both cases the Supreme Court found that the defendants’ affidavits contained unequivocal and sworn statements that they did not waive their rights to counsel, and held that the defendants satisfied their burdens. However, the Court distinguishes Nixon from these cases based on State v. Maine (2011 MT 90). In Maine, the Court determined that the ultimate burden of proof (production and persuasion) and that he must prove it by a preponderance of the evidence.

In the end, Nixon’s felony DUI conviction was upheld. The District Court sentencing him to the Department of Corrections for a period of thirteen months, and ordered that if he successfully completed the WATCH program, the remainder of his thirteen months would be served on probation, followed by a five-year suspended sentence to the Department of Corrections.

State v. Nixon, 2012 MT 316

Persistent Felony Offender Status in MT DUI

In August of 2011, David Kime was charged with felony DUI, careless driving, and operating a motor vehicle while a habitual traffic offender. These charges came about following a traffic accident where Kime drove through an intersection and hit another vehicle. In January of 2012, the State filed notice that it intended to seek persistent felony offender status in Kime’s case. The basis for this was Kime’s May 2009 conviction for felony DUI. Kime objected to the persistent felony offender designation, but his objection was denied by the District Court.

Ultimately, Kime pled guilty to the felony DUI charge and the State dismissed the charge of driving while a habitual traffic offender. A bench trial was held on the careless driving charge which resulted in his conviction. Kime was sentenced to ten years at the Montana State Prison with no time suspended as a persistent felony offender for the felony DUI, and to 30 days in jail on the careless driving conviction. He was given credit for 246 days of time served.

On appeal, Kime argued that the District Court erred in sentencing him as a persistent felony offender. His position was that the persistent felony offender statutes conflicted with the sentencing rules provided for felony DUI. And because the persistent felony offender statutes are general, the felony DUI sentencing statute is specific. Therefore, the DUI statute (as the more specific option) should over ride. He acknowledged that this was contrary to the Supreme Court’s precedent in State v. Damon (2005 MT 218). The Court disagreed stating that “[i]n the decisions following Damon, this Court has clearly established that the intent of the persistent felony offender statutes is that they replace the sentences for the underlying felony.” Because the persistent felony offender sentencing provisions replace the underlying felony offense there is no need to resort to the rules of statutory construction, according to the Court. It’s the purpose of the felony offender statutes to conflict with the other sentencing statutes, it’s a feature not an error.

Kime also challenged his sentencing to 30 days in jail for the careless driving, arguing that the District Court exceeded its authority when it imposed that sentence.Under 61-8-711(2) and -716, MCA, the only penalty for careless driving is a fine between $10 and $100. The Supreme Court remanded the case with instructions to the District Court to strike the illegal jail time imposed in the sentence for careless driving.

Finally, Kime raised an argument of ineffective assistance of counsel. Specifically, he said that his counsel’s failure to argue against the sentence imposed for the DUI was per se unreasonable. However, the Supreme Court pointed to numerous statements by Kime where he expressed a willingness to accept anything the District Court decided on, so long as it did not include any suspended time. The Court believed that Kime’s attorney followed his instructions, and did not provide deficient representation.

State v. Kime, 2013 MT 14

The Obscured License Plate and the Indigent DUI Defendant

Mark Haldane was convicted of driving under the influence of alcohol (DUI) at the conclusion of a jury trial in Bozeman Municipal Court. He appealed to the District Court for Gallatin County, which affirmed the trial court’s denial of his motion to suppress. Haldane then appealed to the Montana Supreme Court arguing that: 1) when he was stopped based on an obstruction to his temporary registration permit by snow and a trailer hitch, it was a violation of his constitutional right to be free from unreasonable seizure; 2) his trial counsel rendered ineffective assistance; and 3) his sentence violated due process because it was based on his indigency.

In Montana, officers may initiate a traffic stop on any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Section 61-3-301(1)(a), MCA, provides that “a person may not operate a motor vehicle … upon the public highways of Montana unless the motor vehicle … is properly registered and has the proper license plates conspicuously displayed on the motor vehicle.” Furthermore, § 61–3–301(1)(a), MCA, requires that the “license plate must be securely fastened to prevent it from swinging and may not be obstructed from plain view.” The statute defines “conspicuously displayed” as “obviously visible and firmly attached.”

Haldane argued that Montana’s weather and the prevalence of farm and other towing vehicles make it unlawful for law enforcement officers to effectuate a stop only because a temporary registration is obscured by snow and a ball hitch. He relied on concurrences by Justice Nelson in State v. Rutherford, 2009 MT 154, and State v. Cooper, 2010 MT 11. As Justice Nelson wrote in Cooper:

I continue to disagree with the proposition that, in this state, a license plate’s being obscured by the natural accumulation of the elements or driving conditions can constitute particularized suspicion for anything—except that Montanans often drive in foul weather and on foul roads.

However, the Supreme Court in this case rejected this analysis. Instead, it focused on case law establishing that a statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop. And, the plain language of 61-3-301, MCA, requires that a license plate may not be obstructed from plain view and must be obviously visible. Under Montana law, a license plate obstructed by snow or a ball hitch is legally sufficient justification to authorize a traffic stop.

Haldane also argued that his sentence violated his due process rights because it was based on indigency. The State maintained that this argument had been waived because it wasn’t raised at the original sentencing, however the MT Supreme Court invoked the Lenihan exception which provides that an appellate court may review any sentence imposed in a criminal case if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.

In this case, the Court originally planned to sentence Haldane to six months with all but three days suspended. However, after it was revealed that Haldane was indigent and unable to make his payments, the Court increased his sentence to one year with all but three days suspended. Because his sentence was increased to the maximum sentence based on his inability to pay the fines and fees, it was a violation of due process.

State v. Haldane, 2013 MT 32

Probable Cause Determinations in MT DUI

In State v. Haller (2013 MT 199), Dwayne Haller challenged the procedure which lead to his conviction for felony DUI. He argued that he was entitled to a preliminary examination within 48 hours of his arrest. Because a preliminary examination was not held within 48 hours of his arrest, Haller believed, the State had to prove that the time that it took for him to receive a probable cause determination was reasonable. The Montana Supreme Court disagreed, and held that he was conflating the two procedures that require a finding of probable cause. The Court provided the following analysis:

Section 46–6–311(1), MCA, provides that “[a] peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.” To ensure that the officer correctly determined that there was probable cause to make the arrest, the Fourth Amendment gives a criminal defendant who has been arrested without a warrant the right to a prompt probable cause determination by a neutral and detached magistrate. Gerstein v. Pugh, 420 U.S. 103, 124–25 (1975).

Section 46–11–110, MCA, also gives a defendant a right to a judicial determination of probable cause before the prosecution can be commenced in justice court. A sworn affidavit submitted with a complaint is a proper basis for the probable cause determination required by the Fourth Amendment. State v. Brown, 1999 MT 339, ¶ 15, 297 Mont. 427, 993 P.2d 672.

Following all arrests, an initial appearance must be conducted before the nearest and most accessible judge without unnecessary delay. Section 46–7–101, MCA (emphasis added). The Montana Supreme Court has noted that this statute, together with the requirement to inform defendants of their rights set out in § 46–7–102, MCA, is designed to “ensure that a criminal prosecution begins promptly and with a recognition of the defendant’s essential rights.” State v. Strong, 2010 MT 163, ¶ 11, 357 Mont. 114, 236 P.3d 580. In addition, before leave to file an information in district court can be granted, a separate determination of probable cause must be made.

There are three different procedures by which the State can obtain the requisite probable cause determination before filing charges in district court: 1) a preliminary examination; 2) direct application to the district court for leave to file an information; or 3) indictment by a grand jury.1 Section 46–10–105, MCA. The State may utilize whatever process it wishes; a defendant is not entitled to any specific procedure. State v. Farnsworth, 240 Mont. 328, 332, 783 P.2d 1365, 1368 (1989). Montana has adopted a flexible standard that requires the district court determination to be made within “a reasonable time” after the defendant’s initial appearance. State v. Higley, 190 Mont. 412, 419, 621 P.2d 1043, 1048 (1980); see also § 46–10–105, MCA.