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.

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

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.

Traffic Violation Not Necessary for Montana DUI Investigatory Stop

In State v. Weer, recently decided by the Montana Supreme Court, Mr. Weer appealed the District Court’s decision to not reinstate his driver’s license. As we’ve discussed before, refusal to submit to a preliminary breath test in Montana results in the automatic suspension of your driver’s license. This is based on the Montana implied consent statute which says that a person driving in Montana has impliedly consented to give a breath test. A person who has had their license revoked under this statute can challenge the revocation in District Court, but they are limited to proving that the arresting officer did not have sufficient particularized suspicion to request the breath test.

In Weer’s case, a highway patrolman following him observed his vehicle swerve twice toward the centerline and then cross the centerline. At that point he initiated a stop based on suspicion of DUI, during which Weer refused to submit to the officer’s request for a preliminary breathalyzer test.

Weer challenged the revocation, claiming that the officer did not have sufficient particularized suspicion to initiate an investigative stop and conduct a DUI investigation. The District Court ruled against him after conducting an investigatory hearing.

The Montana Supreme Court reiterated the requirement that “to justify an investigatory stop of a motor vehicle, the State has the burden to show: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting particularized suspicion that the occupant of the motor vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” Also, the Court noted that “the question is not whether any one of [the petitioner’s] driving aberrations was itself ‘illegal’ but rather, whether [the officer] could point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”

Because this is a totality of the circumstances test, it does not matter whether the officer can point to one specific infraction. In this appeal, Weer argued that crossing on to the centerline was not a violation, therefore the officer lacked particularized suspicion. The Supreme Court agreed with the District Court and found that it is irrelevant whether Weer committed a specific traffic violation.

The take home lesson from Weer: even if you have committed no traffic violations, an officer may still initiate a traffic stop and require you to give a preliminary breath test.

Montana DUI Per Se

A traditional DUI is the operation of a motor vehicle while impaired by alcohol or drugs. This is a relatively subjective assessment with no bright line rule. Determining whether you are “impaired” requires an assessment of your skills that is difficult to make and even harder to prove. The results of Field Sobriety Tests are used to make an assessment of a person’s skills. But the results of the tests are subjective and can be argued about. This makes the state’s job tougher when trying to convict citizen’s accused of DUI. In response to this, a DUI per se was created.

A per se violation is based on a legal assumption. The DUI law in Montana assumes that if your blood alcohol level is at .08 or above, you are too impaired to safely operate a vehicle. It makes no difference whether you are actually impaired, it only matters what level of alcohol is present in your blood according to a test. A Montana DUI per se is a strict liability offense. The state does not need to prove that you were a danger behind the wheel, only what your B.A.C. was at the time.

Proving B.A.C. generally comes down to the result of a breath or blood test administered by a police officer. As I’ve discussed on here before, these results can be skewed by any number of factors, and despite what they would have you believe on TV: are not always accurate. This is why discussing your situation with a Montana DUI attorney is so important, especially one with experience. A per se violation is very difficult to defend unless your attorney is familiar with the technical requirements of Field Sobriety Tests, Particularized Suspicion, and Breathalyzers.

State of Montana v. Larson

Joshua Larson was charged with Driving Under the Influence in District Court in Missoula, Montana. He appealed his DUI/DWI conviction to the Montana Supreme Court, who affirmed the District Court.

While making a traffic stop in Missoula, officers witnessed Larson squeal his tires through an intersection. One of the officers followed Larson, observed that he had over-sized tires and no mud flaps, and initiated a traffic stop. Larson slurred his speech, which lead the to the officer requesting that he perform Field Sobriety Tests (FSTs). The tests produced a “sub-par” performance, leading the officer to request a breath test, wherein Mr. Larson blew a .023 (well below the legal limit). The officer asked to search Larson’s vehicle because he thought Larson might be under the influence of drugs. At that point Larson went to his truck and retrieved a bag of marijuana and a pipe which he admitted to smoking an hour before the stop.

Larson moved to suppress all evidence and statements made during the roadside investigation. He argued a lack of particularized suspicion to justify the stop, a lack of particularized suspicion to justify the FSTs, and that Miranda warnings were required prior to his retrieval of the drugs. The Montana District Court found sufficient particularized suspicion to justify the initial stop, and subsequent evidence justified the continued detention.

The Montana Supreme Court ruled that because Larson screeched his tires and revved his engine continually, while crossing a busy intersection, and had a mud-flap violation these two events, along with rational inferences, reasonably warranted the stop.

Likewise, the Montana Supreme Court ruled that the FST was warranted based on the particularized suspicion for the stop combined with the subsequently discovered evidence (like Larson’s slurred speech, and other factors in the opinion).

Montana DUI Preliminary Screening Tests

If an officer has stopped you (because he had a particularized suspicion) he will then watch for any indications that you are under the influence of alcohol or drugs. Assuming that there are some indications, the officer will then perform a Preliminary Screening Test. These tests come in a number of different formats, and carry a different amount of weight in making a determination of whether to perform an arrest for DUI.

We’ve discussed Montana field sobriety tests before. These are one of the preliminary screening tests that officers use to determine whether you have been driving under the influence of alcohol or drugs. A videotape of the tests is admissible even if no Miranda Warnings have been given. And successfully performing the field sobriety test does not mean you can’t still be arrested for DUI. Montana courts have ruled that the tests are not required to establish probable cause for an arrest and that probable cause may still be established with other evidence.

The horizontal gaze nystagmus (HGN) test is really a field sobriety test, but common enough to warrant its own discussion. This is when an officer holds something in front of your face and moves it left and right asking you to follow it with your eyes. The officer is trained to watch the way your eyes move to determine whether you are impaired by alcohol. Although it seems simple enough, properly administering the HGN test requires a great deal of specialized knowledge, and before the results of one can be admitted into court, the evidence must show that the arresting officer was properly trained to administer the test and that he was administering it in accordance with that training.

The Preliminary Breath Test (PBT) is a portable breathalyzer that officers use at the scene of a traffic stop to establish probable cause for DUI arrest in Montana. If the officer has a particularized suspicion that a driver has consumed alcohol, Montana law allows him to request a PBT. The law is similar to the implied consent law, in that a refusal to take the PBT may result in the suspension or revocation of the driver’s license or privilege to drive. However, the results of these tests are not substantive evidence of the amount of alcohol present in a person’s body. They just provide an estimate of alcohol concentration for the purpose of establishing probable cause.

Particularized Suspicion in Montana DUI Cases

In order to stop a vehicle in Montana, a police officer must make a determination of particularized suspicion. This is based on what the officer has observed and must be articulable facts that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Officers cannot stop you on the road for no reason.

In order to show sufficient cause to stop a vehicle, the burden is on the State to show: 1) objective data from which an experienced police 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. State v. Gilder, 1999 MT 207. Objective data means things that actually happened. A “hunch” is not objective data unless the officer can point to facts that brought about the hunch. But alone it is insufficient.

Particularized suspicion is less than reasonable cause or probable cause. Montana law does not require the officer have probable cause in order to stop a vehicle.  State v. Sharp, 217 Mont. 40 (1985). While this tells us that particularized suspicion is not probable cause, it does not give much information on what it is.

Particularized suspicion involves the totality of circumstances, and the court should consider the quantity, or content and quality, or degree of reliability of the information available to the officer. State. v. Pratt, 286 Mont. 156 (1997).

A few examples of situations that have been sufficient to create probable cause:

A citizen report of a DUI, the reported vehicle observed half-way off the road, and a vehicle pulling away when an officer approached.  State v. Sharp.

One swerve into the wrong traffic lane, in the vicinity of bars around closing time.

Two anonymous phone calls corroborated by officers and evidence of excessive speed. State v. Shaffer, 227 Mont. 221 (1987).

Jerky Driving Leads to Montana DUI

State v. Matson, 2010 MT 162N – Noncite Opinion

In order to stop a vehicle, police officers must have a particularized suspicion that the driver has committed, is committing, or is about to commit an offense. In State v. Matson, the Montana Supreme Court addressed whether an officer had sufficient cause to form a particularized suspicion. Melvin Matson was observed by an officer exiting Gruber Excavating’s storage yard in Clancy in a lurching manner – like someone unfamiliar with a clutch. The officer stopped Matson “to make sure the driver was not involved in any criminal activity on the property.” As a result of the stop, Matson was placed under arrest for DUI.

Under a challenge from Matson’s Montana DUI attorney, the Montana Supreme Court ruled that the officer witnessed sufficient evidence to justify a stop. Specifically:

  • Unusual jerky driving;
  • Gruber Excavating yard was closed for the night;
  • The yard contained materials that had been stolen recently at other locations; and
  • The officer knew Matson was not a Gruber employee.

Given the totality of these circumstances, the Montana Supreme Court ruled that the officer could form the particularized suspicion necessary to justify the stop. Because of that, the evidence obtained after that proving that Matson was Driving Under the Influence of Alcohol or Drugs was admissible.

State v. Matson is a non-cite opinion, meaning that lawyers cannot use it as precedent when making arguments to a court. Nevertheless, it provides a good look at how courts would view a certain type of evidence.

The Preliminary Breath Test in Montana

When a driver suspected of DUI is stopped in Montana, the officer will determine whether there is a particularized suspicion to believe that the driver is intoxicated. If the driver has such a suspicion, he may ask the driver to submit to a preliminary alcohol screening test (PAST). This is what is commonly called the breath test, or “blowing.”

By driving on the roads of the state of Montana, you have consented to such a test. Under Montana statute 61-8-409(1) “a person who operates or is in actual physical control of a vehicle upon ways of ths state open to the public is considered to have given consent to a preliminary alcohol screening test of the person’s breath.”

Of course, you can refuse the test – but doing so results in the suspension of your license for up to a year. But, you can request a hearing to challenge the suspension where the court will examine whether the officer legitimately had a particularized suspicion that you were driving while under the influence of alcohol. The court will also examine whether you actually refused to submit to the test.

The Montana Supreme Court has ruled that only a particularized suspicion that the driver was under the influence of alcohol, and does not need the higher standard of probable cause. State v. Toth, 317 Mont. 55 (2003).

Also, evidence from this test are not substantive evidence of the amount of alcohol present in a person’s body. Instead, it is just an estimate of alcohol concentration for the purpose of establishing probable cause to believe that person is under the influence of alcohol prior to making an arrest. State v. Strizich, 286 Mont. 1 (1997).