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.


DUI and Citizen Informants in Montana

Often, DUI arrests are the result of citizen informants making calls to 911 which the officers rely on and make a traffic stop. Under the laws of Montana, an officer does not need to see illegal activity himself. The officer can rely on an informant’s statement that has sufficient indicia of reliability. The Montana Supreme Court has provided three factors to consider when deciding if a statement (and informant) is sufficiently reliable: 1) whether the informant identified himself; 2) whether the report makes it clear that it is based on the informant’s own observations; and 3) whether the officer corroborates the statement. As to #3, the officer can corroborate the statement without witnessing any illegal activity. The statement is considered corroborated if the officer finds the suspect or suspect’s vehicle substantially as described by the informant.

Here’s a more in-depth description of the relevant law:

The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect persons against unreasonable searches and seizures, including brief investigatory stops of vehicles. State v. Jarman, 1998 MT 277, ¶ 9, 967 P.2d 1099, ¶ 7 (citing United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct 690, 694-95, 66 L.Ed.2d 621, 628). To stop a person, an officer must have a particularized and objective basis for suspecting the particular person of criminal activity. Jarman, ¶ 9 (citing Brown v. Texas (1979), 443 U.S. 47, 51, 99 S.ct 2637, 2640, 61 L.ed.2d 357, 362).

In regard to investigative stops, § 46-5-401, MCA, provides:

In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop 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.

Moreover, “[t]o justify an investigative stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Martinez, 2003 MT 65, ¶ 21, 314 Mont. 434, ¶ 21, 67 P.3d 207, ¶ 21 (citations omitted).

An officer need not personally observe illegal activity in order to have particularized suspicion justifying an investigative stop. State v. Fellers, 2004 MT 321, ¶ 21, 324 Mont. 62, 101 P.3d 764. Particularized suspicion may be based on information obtained via a citizen informant, as long as the informant’s information contains sufficient indicia of reliability. State v. Pratt, 286 Mont. 156, 164-68, 951 P.2d 37, 42-44 (1997). For an officer to effect an investigative stop based on a citizen informant’s report: (1) the citizen informant must identify himself or herself to law enforcement, (2) the report must be based upon the informant’s personal observations, and (3) the officer must corroborate the informant’s information by observing illegal activity or finding the person, the vehicle, and the vehicle’s location substantially as described by the informant. State v. Wagner, 2003 MT 120, ¶ 13, 315 Mont. 498, ¶ 13, 68 P.3d 840, ¶ 13 (citation omitted).

Even where an informant has identified himself and given a report based on personal observations, the officer must “corroborate the informant’s information by observing illegal activity or finding the person, the vehicle, and the vehicle’s location substantially as described by the informant.” Wagner, ¶ 13.

Flathead DUI

If you’ve been charged with DUI or DUI per se in Flathead County, your actual charges could be in a number of different courts depending on a few different factors. First off, it’s important to know whether you’re charged with a misdemeanor or a felony. Your first, second, and third DUIs are misdemeanors. This means that the maximum possible term of imprisonment is 6 months in the county jail. A fourth or subsequent DUI is a felony and punishable by imprisonment in the state prison. If you’ve been charged with felony DUI, the case will be handled by Flathead County District Court which is located at:

920 South Main, 3rd Floor
Kalispell, MT 59901

If you are charged with a felony DUI, your first Court appearance will actually be in Justice Court. This does not mean that Justice Court will preside over your entire case, only that hearing takes place there.

If you’re charged with misdemeanor DUI, your charges could take place in either the county court or in a city court, depending on where you were arrested. If you were arrested within Kalispell City limits by the Kalispell Police Department, then your charges will be in Kalispell Municipal Court presided over by the Honorable Lori Adams. Kalispell Municipal Court is located at:

312 1st Ave East
Kalispell, Mt 59901

All of the city courts can hear any misdemeanor DUI offense, so unless the charge is a felony a case that starts in city court will likely stay in city court. Whitefish also has a municipal court, and if you’re arrested for driving under the influence within Whitefish city limits, you’re case will be presided over by the Honorable Bradley Johnson at Whitefish Municipal Court, located at:

275 Flathead Ave
Whitefish, MT 59937

And finally, Columbia Falls also has a city court which is presided over by the Honorable Susan “Tina” Gordon. Columbia Falls City Court is located at:

Columbia Falls City Hall
130 6th Street West
Columbia Falls, MT 59912.

Again, if you’re arrested within city limits for Kalispell, Whitefish, or Columbia Falls, your DUI charges will be in the city (or municipal) court for that jurisdiction. However, a great deal of Flathead County contains unincorporated areas. So, if you’re in Bigfork, Somers, or anywhere outside the three major cities and arrested for DUI – your case will be handled by the Flathead Justice Court. Flathead County Justice Court is presided over by the Honorable Mark R. Sullivan and the Honorable Daniel R. Wilson. It is located at:

920 South Main, 2nd Floor
Kalispell, MT 59901

Flathead County Justice Court is in the same building as Flathead County District Court, which can lead to some confusion. But, they are entirely separate courts and handle different cases. Technically, Justice Court has jurisdiction over any misdemeanor DUI that occurs in Flathead County. Practically, only those that occur outside the city limits for Kalispell, Whitefish, and Columbia Falls are actually prosecuted there.

Montana DUI and Actual Physical Control

Both Montana DUI statutes apply to a person who is operating a motor vehicle, or in actual physical control of a vehicle upon the ways of this state open to the public. Troublingly, the legislature failed to define what it meant by actual physical control. Obviously a person driving is in actual physical control. What about a person sitting behind the driver’s seat, in a running car? What if the car was not running? What about a person sleeping across the driver’s and passenger’s seat with the car off? What about a person in the back seat? Unfortunately, the statutes provide very little guidance so it has been left to the Montana Supreme Court to fashion a solution. And the current law on this matter would likely surprise most people.

In 1958, the Montana Supreme Court decided State v. Rouna. In that case, the Court defined several of the terms. “Actual” was defined as “existing in act or reality.” “Physical” was defined as “bodily.” And “control” was defined as “to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb subject…” The Court found that “actual physical control” meant “existing or present bodily restraint, directing influence, domination or regulation.” Using this definition it upheld a jury instruction which said:

You are instructed that if you believe beyond a reasonable doubt that at the time charged in this coplaint, the defendant, Dr. M.A. Ruona, was seated in his car, with motor running, with the intent then and there in him, the said defendant, to drive such vehicle on a public highway or street within the State of Montana, then the defendant had actual physical control of his vehicle as provided by statute. That it need not be shown that the vehicle had actually moved or was traveling on such highway or street within said state.

In State v. Robison (1997) the Court addressed the issue again. In that case, Robison was found in a parking lot sitting in the driver’s seat of an automobile with his body, from the waist up, slumped into the passenger seat and with his feet near the pedals. He was asleep or passed out and had to be woken up by the investigators. The car was locked, but the motor was running and the lights were on. In that case, the Montana Supreme Court found that Robison’s jury instructions were in error because they “impermissibly broadened the judicial definition of actual physical control to include, as a practical matter, every intoxicated occupant of a vehicle whether or not he or she was or ever had been operating the vehicle.”

In 2005, the Court confronted a situation involving a driver who was found asleep parked the wrong way in a ditch in State v. Hudson. When he was approached by paramedics, he attempted to put the vehicle in drive. He was in the driver’s seat, the motor was running, the window was rolled down part way, the radio was playing, and the lights were on. The Supreme Court upheld jury instructions which stated that “a person is in actual physical control of a motor vehicle if the person is not a passenger, and is in a position to, and had the ability to, operate the vehicle in question.”

In this line of cases, and others, Montana has drawn a relatively test for determining whether a drunk person in a vehicle can be charged with DUI. The problem is that there are legitimate reasons to be in a vehicle while intoxicated. For a person leaving a bar alone after closing time in the winter, a running car can mean the difference between life and death. Admittedly, this makes it more difficult for law enforcement officers to determine when a driver intends to drive and when they’re simply seeking shelter, but that is not an insurmountable task. In fact, it’s one that other states have already embraced.

Maryland, for example, acknowledges this in its case law. In Akinson v. State, the Maryland Court stated: We believe that, by using the term “actual physical control,” the legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters until they are sober enough to drive and those people who represent an imminent threat to the public by reason of their control of a vehicle. When the occupant is totally passive, has not in any way attempted to actively control the vehicle, and there is no reason to believe that the inebriated person is imminently going to control the vehicle in his or her condition, we do not believe that the legislature intended for criminal sanctions to apply.

Likewise, Arizona has established a number of factors for a court to consider when determining whether a person is in actual physical control of a vehicle. They include (but aren’t limited to): 1) Whether the vehicle was running; 2) Whether the ignition was on; 3) Where the ignition key was located; 4) Where and in what position the driver was found in the vehicle; 5) Whether the person was awake or asleep; 6) Whether the vehicle’s headlights were on; 7) Where the vehicle was stopped; 8) Whether the driver had voluntarily pulled off the road; 9) Time of day; 10) Weather conditions; 11) Whether the heater or air conditioner was on; 12) Whether the windows were up or down; and 13) Any explanation of the circumstances shown by the evidence.

At this point, Montana has not adopted the Arizona factors or taken the more inclusive view of vehicle occupancy of Maryland.

DUI License Suspension in Montana

Conviction for DUI in Montana has a number of ancillary consequences that most people aren’t aware of. One of the most significant is the automatic suspension of a driver’s license. Under section 61-5-208(2)(b)(i) of the Montana Code Annotated, a person convicted of a first offense of DUI or DUI per se shall have his or her license suspended for a period of six months. A person convicted for the second time within five years will have his or her license suspended for one year, and can not be granted a probationary license until 45 days of the 1 year suspension have passed. Also, the judge must recommend that the offender be issued a probationary license (however, it will be necessary that an ignition interlock device be installed in their vehicle).

A third or subsequent conviction of DUI within a five year period means a one year suspension of driver’s license, and a probationary license may only be issued after the offender has completed 90 days of the year long suspension. This also includes a requirement for the ignition interlock device.
Reinstatement of the license includes paying a $200 fine to the Motor Vehicle Division of the Montana Department of Justice. This applies whether or not a probationary license was issued. Many people convicted of a DUI forget this step, and end up accumulating Driving While Suspended charges later on, after assuming that their license was reinstated at the end of the suspension. If you’ve been convicted of DUI and aren’t sure whether you paid the reinstatement fee, a call to the Motor Vehicle Division might be a good idea.

A probationary license can fall under four different categories: Occupational Driving Only; Home to School and Return; Essential Driving only; or Daytime Hours Only.

Licenses restricted to “occupational driving only” may only be used by the licensee to travel to and from the regular place of employment, or in search of employment, by the most direct route from the residence in a period of time no greater than is reasonable under existing traffic conditions; and during work hours at the specific direction of the employer for purposes of carrying out assigned job related functions.
Licenses restricted to “home to school and return” may only be used by the licensee to travel between the residence and the school or educational institution in which the licensee is enrolled. Travel is only authorized immediately before and after regular school hours and must be by the most direct route between the residence and the school in a period of time no greater than is reasonable under existing traffic conditions. Driving to or from extracurricular activities is not allowed.

Licenses restricted to “essential driving only” may only be used by the licensee for occupational driving as described above; home to school driving as described above; and travel to and from the regular residence in a period of time no greater than is reasonable under existing traffic conditions for purposes related to maintenance of the household.
Licenses restricted to “daytime hours only” may only be used by the licensee to operate a motor vehicle from one-half hour before sunrise to one-half hour after sunset.

While these four options are described in the Administrative Rules of Montana, the rules also allow the Division to impose additional restrictions when appropriate. However, none of these restrictions can prohibit a driver from travelling to or from required alcohol treatment programs.

If you’ve been charged with a DUI, you are facing license suspension. While Montana is beautiful, it’s also spread out. Getting along with the ability to drive is a real hardship, and something you should consider when charged with an alcohol related driving offense. The best advice I can give you is to talk to an attorney about the possible outcomes, and see what options are available to mitigate these potential problems.

Canadians Getting a DUI in Montana

As the Canadian economy has improved relative to ours in the U.S., more and more Canadians have been venturing south of the border for vacation and fun. Unfortunately, this can often result in a DUI for our neighbors to the north. And being a Canadian citizen doesn’t protect you from a DUI in the States. But it does add a lot of complexity. Specifically, the legal proceedings surrounding a DUI will require appearances in Court which can be inconvenient or even impossible on the Court’s schedule.

A DUI attorney familiar with the problems faced by Canadian citizens can help minimize the problems you’ll encounter and save yourself a lot of time and problems. The law won’t be any different because you’re a Canadian, but dealing with the practical implications requires experience and forethought.

If you’re a Canadian who has been charged with a DUI in the states, call me today at 406-752-6373 for a free consultation and case review.

Helena Man Found Guilty of 12th DUI

A jury found a 53-year-old Helena man guilty of his 12th driving under the influence offense on Wednesday evening.

After two days of testimony, the 12 members of the jury took about three hours of deliberation.

Charles R. Horton is set to be sentenced for felony DUI on July 28.

Horton, 53, was accused of driving a vehicle into a snow bank while intoxicated in November 2010.

Horton faces a sentence of 13 months to the Montana Department of Corrections followed by up to a five-year suspended sentence.


State v. Flynn | MT Supreme Court DUI Case

State v. Flynn is a Montana Supreme Court decisions involving a DUI case. Specifically, the issue for the Court was whether the Deputy had particularized suspicion to stop Flynn’s vehicle. Particularized suspicion is an important concept in Montana DUI law, and something that I have discussed before on here.

A police officer must have a particularized suspicion in order to stop a vehicle in Montana. To show sufficient cause to stop a vehicle, the State must show 1) objective data from which an experienced officer can make certain inferences; and 2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity.

In Flynn’s case, the Deputy testified that he saw Flynn’s truck cross the fog line three separate times over the course of about .3 miles. The question in the case was whether this justified stopping his vehicle (a stop which resulted in a DUI arrest).

Flynn’s attorney made a number of arguments, one being that under State v. Lafferty, crossing the fog line does not justify a traffic stop. The Montana Supreme Court clarified that Lafferty stated that crossing the fog line was not illegal. But an officer does not need to witness illegal behavior to form a particularized suspicion.

The Court also noted that the particularized suspicion analysis must focus on what the officer knew at the time of the stop – and that he doesn’t need to consider every possible legitimate excuse a driver may have.

With these things in mind, the Court found that the officer did have a sufficient particularized suspicion to initiate the stop.

Call me today at 406-752-6373 to schedule a free consultation to discuss your DUI case.

State v. Baze | MT Supreme Court DUI Case

State v. Baze is a Montana Supreme Court decision on a DUI case and stands for the proposition that a faxed toxicology report containing blood test results was hearsay testimony and could not be admitted under the business records exception found in the Montana Rule of Evidence 803(6).

Recently, I wrote about hearsay evidence in DUI cases in Montana. A brief recap: hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. It is a very broad category covering most things not said in trial. There are many exceptions to hearsay, one being the business records exception at issue in Baze.

At Mr. Baze’s Montana DUI Trial, the State wanted to introduce the results from a blood test performed on Baze on the night in question. But the only copy they had at trial was a fax of the document. The parties agreed that the document was hearsay – it was an out of court statement offered to prove that Baze’s blood alcohol content was higher than the legal limit. They disagreed on whether the report was admissible anyway under the “business records” exception to the hearsay rule.

The Court ruled that the document did not qualify under the business records exception because the rule requires that the entity which created the business record (the toxicology report in this case) must establish that the record was prepared in accordance with its regular and trustworthy business practices. Because no testimony was offered at Mr. Baz’s trial by personnel from the Billings Clinic where the record was generated, it was not admissible.

A good DUI attorney in Montana knows that keeping evidence out is as important as the evidence you get in. Mr. Baze’s attorneys certainly remembered this. If you have questions about what is hearsay in DUI case or questions about your DUI case, please call me today at 406-752-6373 to schedule your free consultation. We can meet in person or simply talk over the phone. Either way its free, so what have you got to lose?