City of Missoula v. J. Williams , 389 Mont. 303 ( 2017 )

11/17/2017
DA 16-0674
Case Number: DA 16-0674
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 282CITY OF MISSOULA,
Plaintiff and Appellee,
v.
JUSTIN WILLIAMS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-16-272
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula,
Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant
Attorney General, Helena, Montana
Jim Nugent, Missoula City Attorney, Doug Schaller, Deputy City
Attorney, Missoula, Montana
Submitted on Briefs: August 9, 2017
Decided: November 17, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Justin Williams (Williams) appeals from an order entered by the Fourth Judicial
District Court, Missoula County, affirming the Municipal Court of the City of Missoula’s
denial of his motion to suppress blood evidence in a DUI proceeding against him. We
affirm.
¶2 Williams presents the following issues for our review:
1. Whether the District Court erred in affirming a telephonic search warrant
issued pursuant to § 61-8-402(5), MCA, to draw Williams’s blood.
2. Whether the District Court erred in failing to consider the merits of Williams’s
contention that he did not receive the implied consent advisory prior to his
blood draw.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 24, 2016, at 2:48 a.m., Missoula Police Deputy Jenna Volinkaty
(Volinkaty) observed Williams speeding in a rental truck, lose control of the vehicle,
collide with a utility pole and tree, and attempt to leave the scene. Using a radar device
before the collision, Volinkaty measured Williams traveling between 50 and 55 miles per
hour and another officer measured him traveling at 70 miles per hour and accelerating.
The speed limit in the area is 30 miles per hour. Volinkaty smelled alcohol on
Williams’s breath, saw that his eyes were glassy, watery, and bloodshot, his clothing was
soiled, that he could not maintain his balance, and heard Williams slur his words.
Volinkaty arrested Williams for suspected DUI. Williams admitted he had consumed
alcohol, but refused to take an Intoxilyzer breath test. Volinkaty learned that in 2008,
2
Williams was convicted of an alcohol-related driving offense under Arizona Revised
Statute § 28-1381.
¶4 Volinkaty contacted Judge Marie Anderson to obtain a telephonic search warrant
to draw Williams’s blood. In her affidavit, Volinkaty described seeing Williams
speeding, travelling 50-55 miles per hour, losing control, and crashing into a utility pole
at 2:48 a.m.; Williams being taken into custody after he attempted to flee; observing
symptoms of his impairment including watery, bloodshot eyes, slurred speech, staggering
movements, soiled clothing, and mood swings. Volinkaty also notified Judge Anderson
that “the suspect has a prior conviction for DUI or substantially similar offense on
11/20/2008 in Arizona.” Judge Anderson authorized the issuance of the search warrant
and Volinkaty executed it by having Williams’s blood drawn. Williams had a blood
alcohol content (BAC) of 0.197.
¶5 The City of Missoula (the City) charged Williams with aggravated DUI pursuant
to § 61-8-465, MCA; reckless driving pursuant to § 61-8-301, MCA; and refusing to
submit to a blood or breath test pursuant to § 10.56.020 of the Missoula Municipal Code.
Williams filed a motion to suppress the blood draw evidence arguing it was obtained
pursuant to a search warrant that relied on a previous conviction from Arizona that “does
not qualify as a ‘similar’ offense under Section 61-8-402(5).” The Municipal Court
denied Williams’s motion to suppress “conclud[ing] that the Arizona DUI conviction
could be considered a ‘similar’ offense for purposes of seeking a telephonic search
warrant.” In its order, the Municipal Court recognized, however, that under State v.
McNally, 2002 MT 160, 310 Mont. 396, 50 P.3d 1080, the Arizona conviction could not
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be used to enhance Williams’s DUI sentence to a felony. Reserving his right to appeal
the adverse determination on his motion to suppress, Williams pleaded no contest to
aggravated DUI. The City dismissed the remaining two charges. The Municipal Court
sentenced Williams to six months in jail with all but five days suspended and imposed a
fine of $1,000.
¶6 Williams appealed the Municipal Court’s order denying his motion to suppress to
Montana’s Fourth Judicial District Court, Missoula County, and made an additional
argument that “Officer Volinkaty failed to include in her Affidavit of Probable Cause that
she had read to [Williams] the Implied Consent Advisory and therefore information about
his refusal is called into question.” The District Court affirmed the Municipal Court’s
order denying Williams’s motion to suppress on the same grounds as the Municipal
Court, concluding that the Arizona statute is “similar” to Montana’s DUI statute “for the
purposes of being able to seek a telephonic search warrant under the auspices of Mont.
Code Ann. §61-8-402(5).” The District Court declined to address Williams’s additional
argument “[b]ecause this issue was not previously raised and the municipal court had no
opportunity to rule on the issue . . . .”
¶7 Williams appeals.
STANDARDS OF REVIEW
¶8 On appeal from a municipal court, the district court functions as an intermediate
appellate court. Sections 3-5-303, 3-6-110, MCA; City of Bozeman v. Cantu, 2013 MT
40, ¶ 10, 369 Mont. 81, 296 P.3d 461. When a district court acts as an intermediate
appellate court, “[t]he appeal is confined to review of the record and questions of law,
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subject to the supreme court’s rulemaking and supervisory authority.” Section
3-6-110(1), MCA. Our review of the case is as if the appeal was originally filed in this
Court and we examine the record independently of the district court’s decision. Stanley
v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. This Court reviews a ruling
on a motion to suppress evidence to determine whether the court’s findings of fact are
clearly erroneous and whether the court’s interpretation and application of the law are
correct. State v. Marcial, 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69. Although we
will review the municipal court record as if the appeal was originally filed in this Court,
our disposition pertains to the order of the district court from which the appeal is taken.
DISCUSSION
¶9 1. Whether the District Court erred in affirming a telephonic search warrant
issued pursuant to § 61-8-402(5), MCA, to draw Williams’s blood.
¶10 Williams challenges the legality of the search warrant application that allowed his
blood to be drawn. Williams contends on appeal that, under McNally, Arizona and
Montana’s DUI statutes are not “similar” and, without similarity, there was insufficient
evidence to authorize a blood draw under § 61-8-402(5), MCA. Therefore, Williams
concludes, “the search warrant was illegal and the blood draw results should have been
suppressed.”
¶11 The City responds that McNally is distinguishable because it addressed
“similarity” for sentencing purposes only, not for obtaining search warrants pursuant to
§ 61-8-402(5), MCA. The City also contends, based upon the statutory history of
§ 61-8-402(5), MCA, that Arizona and Montana’s DUI statutes are similar. The City
5
concludes that construing Arizona and Montana’s DUI statutes as not similar would
frustrate the Legislature’s intent when it authorized the drawing of a person’s blood
pursuant to the provisions of § 61-8-402(5), MCA.
¶12 While we ultimately conclude that McNally is not dispositive of the issue before
us, some discussion of McNally and its progeny are necessary to understand the legal
inquiry required in assessing the similarity of another state’s statutes with ours and
whether such an inquiry is appropriate in deciding if a search warrant should issue. The
statute at issue in McNally was a sentencing enhancement statute, § 61-8-734(1)(a),
MCA, which elevates a DUI offense to a felony if the offender has three or more prior
convictions under certain Montana laws or “a similar statute or regulation in another
state.” McNally, ¶ 11 (quoting § 61-8-734(1)(a), MCA). McNally was charged with a
fourth or subsequent DUI after having previously received four Driving While Ability
Impaired (DWAI) convictions in Colorado. McNally, ¶ 3. Because Colorado law
provides a DWAI offense and Montana’s law does not, McNally argued on appeal that
his prior convictions for DWAI “did not constitute previous convictions under a similar
statute for the purposes of enhancing Count I to Felony DUI under § 61-8-734, MCA,”
and he could, therefore, “be sentenced only for a first offense DUI, a misdemeanor.”
McNally, ¶ 3.
¶13 This Court conducted a careful review and comparison of the statutory scheme
pertaining to alcohol-related offenses for both Colorado and Montana, which required
consideration of the elements and degree of impairment for each state’s respective
offenses. We agreed with McNally, differentiating between Colorado’s scheme of
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alcohol-related driving offenses, which provided for three offenses, DUI, DUI per se, and
DWAI, and Montana’s, which only provided for two, DUI and DUI per se. McNally,
¶¶ 7-10. Reasoning that the standard of impairment contained in Colorado’s DWAI
statute, which required impairment only to the “slightest degree,” was lower than the
standard of impairment in Montana’s DUI statute requiring the driver’s ability be
“diminished,” we determined “McNally’s prior convictions in Colorado do not constitute
‘conviction[s] for a violation of a similar statute . . . in another state,’ as required under
§ 61-8-734(1)(a), MCA . . . .” McNally, ¶¶ 18, 22 (quoting § 61-8-734(1)(a), MCA).
“[W]e conclude[d] it was error to enhance McNally’s DUI conviction to a felony based
on his convictions under Colorado’s DWAI statute.” McNally, ¶ 23. In sum, McNally
held that Colorado’s DWAI statute is not “similar” to Montana’s DUI statute within the
meaning of § 61-8-734(1)(a), MCA.
¶14 The Montana Legislature has also utilized the language, “similar statute,” relative
to requirements for obtaining blood or breath tests where probable cause exists to suspect
impaired driving. We begin with Montana’s statutory presumption of implied consent
that “[a] person who operates or is in actual physical control of a vehicle upon ways of
this state open to the public is considered to have given consent to a test or tests of the
person’s blood or breath for the purpose of determining any measured amount or detected
presence of alcohol or drugs in the person’s body.” Section 61-8-402(1), MCA.
However, if an arrested person refuses to supply a BAC sample, the “refused test or tests
may not be given.” Section 61-8-402(4), MCA. Section 61-8-402(5), MCA, carves out
an exception to this rule:
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If the arrested person has refused to provide a breath, blood, or urine
sample under 61-8-409 or this section in a prior investigation in this state or
under a substantially similar statute in another jurisdiction or the arrested
person has a prior conviction or pending offense for a violation of 45-5-104
[negligent homicide], 45-5-106 [vehicular homicide while under the
influence], 45-5-205 [negligent vehicular assault], 61-8-401 [DUI],
61-8-406 [DUI per se], or 61-8-411 [operating a vehicle under the influence
of THC] or a similar statute in another jurisdiction, the officer may apply
for a search warrant to be issued pursuant to 46-5-224 to collect a sample of
the person’s blood for testing.
¶15 The Legislature added § 61-8-402(5), MCA, in 2011. Prior to its inclusion, the
statute “did not permit law enforcement to apply for a search warrant in DUI cases if an
arrested person refused to submit to BAC testing.” State v. Giacomini, 2014 MT 93,
¶ 10, 374 Mont. 412, 327 P.3d 1054. If an arrested person refused to submit to a blood or
breath test “the refused test or tests [could] not be given . . . .” Section 61-8-402(4),
MCA (2009). A blood sample could only be taken pursuant to a search warrant if
probable cause existed that an offense other than the underlying DUI had occurred.
Giacomini, ¶ 10 (citing Collins v. Dep’t of Justice, Div. of Highway Patrol, 232 Mont.
73, 78, 755 P.2d 1373, 1376 (1988)). The statutory framework was revised in 2011 by
the Legislature’s passage of Senate Bill 42, which authorized law enforcement to apply
for a search warrant for a blood draw where an arrested person refused to submit to BAC
testing and had a prior conviction for any of the listed driving, alcohol-related driving, or
drug-related driving offenses “or a similar statute in another jurisdiction.” The amended
bill was explained by a proponent:
The question is: What do you do with these people who have figured out
the game? That is—“If I refuse, they don’t have the evidence.” And you
notice that the committee amended the bill for the repeat offenders just for
that reason. Because there was a general idea that we shouldn’t do it for the
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first refusal. And what we got here is a bill to try to compel the person that
fits the profile of the repeater to give evidence . . . . When you tell them
“You either give us a breath test or we go to the judge and get a warrant
[for your blood,]” they’re going to give you a breath test and that is the
object of the exercise.1
¶16 This Court addressed a challenge to § 61-8-402(5), MCA, in Giacomini.
Giacomini refused to submit to a breath test requested during a traffic stop. Giacomini,
¶ 4. Because Giacomini had refused to provide a BAC test in the past, law enforcement
applied for and received a warrant to draw his blood pursuant to § 61-8-402(5), MCA.
Giacomini, ¶ 5. On appeal, Giacomini argued that “his prior refusal of a breath test [was]
insufficient to establish probable cause to support a search warrant to draw his blood.”
Giacomini, ¶ 12. In response, we noted that “[t]he revisions made to § 61-8-402, MCA,
by Senate Bill 42 merely removed the statutory prohibition on seeking a search warrant
for a blood draw . . . .” Giacomini, ¶ 13. We explained that an arrested person’s prior
refusal does not by itself establish the necessary probable cause for a warrant, “but
merely permits police to apply for a warrant” under § 61-8-402(5), MCA. Giacomini,
¶ 13. Aside from his prior refusal, there was a substantial basis to support the judge’s
determination that probable cause existed in Giacomini’s case, including that he had
driven the wrong way down a one-way street; had watery, bloodshot eyes; smelled like
alcohol; swayed and staggered; and performed poorly on standard field sobriety tests.
Giacomini, ¶ 13. Section 61-8-402(5), MCA, does not supply probable cause, but allows
1
Authorize Warrants to Obtain Blood or Breath Test in DUI Cases, Second Reading of Senate
Bill 42, 62nd Leg., at 1:24:30-1:25:23 (2011) (statement of Sen. Larry Jent), available at
https://perma.cc/D3BN-XH3X.
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a mechanism to gather evidence against those who have either refused a test in the past or
been charged with or convicted of various, but specifically enumerated offenses.
¶17 Here, Williams contends McNally is not limited to sentencing and asserts that
“[t]here is no meaningful distinction between the sentencing enhancement statute
[§ 61-8-734(1), MCA,] and the telephonic search warrant application statute
[§ 61-8-402(5), MCA] . . . .” Pointing out that both Arizona and Colorado’s DWAI
statutes include a threshold level of impairment described as to the “slightest degree,”
Williams argues that Arizona and Colorado’s DWAI statutes are the same and, based on
our holding in McNally, neither is similar to Montana’s DUI statute, which requires a
driver’s ability to be “diminished.” Williams urges us to expand McNally and hold that
because Montana’s DUI statute is not similar to Colorado’s DWAI statute, within the
meaning of § 61-8-734(1), MCA, Montana’s DUI statute is also not similar to Arizona’s
DWAI statute, within the meaning of § 61-8-402(5), MCA. While it is true that both
statutes require convictions for “similar” offenses in order to justify either an enhanced
sentence or the taking of a person’s blood, significant to resolving the underlying issue
are well-established principles for reviewing the sufficiency of a search warrant
application, which remain distinguishable from review of predicate convictions for
purposes of sentencing and other aspects of the criminal trial. Hence, when reviewing the
issuance of a search warrant pursuant to § 61-8-402(5), MCA, it is unnecessary for this
Court to determine whether Arizona and Montana have “similar” DUI statutes as we did
in McNally. Such an inquiry, which is entirely a question of law, is beyond review of the
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“facts” set forth within the four corners of the application and otherwise necessary for a
determination of probable cause.
¶18 Probable cause is required for a judge to issue a search warrant.
A judge shall issue a search warrant to a person upon application . . . made
under oath or affirmation, that:
(1) states facts sufficient to support probable cause to believe that an
offense has been committed;
(2) states facts sufficient to support probable cause to believe that
evidence, contraband, or persons connected with the offense may be found;
(3) particularly describes the place, object, or persons to be searched;
and
(4) particularly describes who or what is to be seized.
Section 46-5-221, MCA. This Court follows the “totality of the circumstances” test set
forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983). State v. Reesman, 2000
MT 243, ¶ 24, 301 Mont. 408, 10 P.3d 83; overruled on other grounds by State v.
Barnaby, 2006 MT 203, ¶ 42, 333 Mont. 220, 142 P.3d 809. Under this test, to determine
if a search warrant should be issued, the judge evaluates the facts asserted within the four
corners of the warrant application and makes a practical, common sense determination
whether there is a fair probability that incriminating items will be found in the place to
which entry is sought.2 Reesman, ¶ 24 (citations omitted).
2
Notwithstanding the limitation on the issuing judge to the “four corners” of the application,
search warrants must be supported by probable cause—a different standard from preponderance
of the evidence applicable to whether a conviction is valid for purposes of sentencing
enhancement. State v. Maine, 2011 MT 90, ¶ 13, 360 Mont. 182, 255 P.3d 64; State v. Krebs,
2016 MT 288, ¶ 12, 385 Mont. 328, 384 P.3d 98. Probable cause, the standard upon which a
search warrant may issue, is lower than a preponderance of the evidence, the standard required to
establish the existence of prior convictions. Furthermore, probable cause is a less onerous
standard than determining whether a prior conviction from a different state was pursuant to a
“similar statute” for sentencing enhancement purposes. This Court will review a district court’s
determinations of similarity to determine if its conclusions of law were correct as a matter of
law. Our review under such circumstances is plenary. McNally, ¶ 5.
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¶19 Williams does not dispute that he was convicted under Arizona Revised Statute
§ 28-1381 or argue that there were insufficient facts to demonstrate probable cause he
was driving while impaired. Nor does Williams dispute the validity of Volinkaty’s
observations. Williams’s entire argument is based upon Volinkaty’s inclusion in the
affidavit of his prior Arizona conviction, which he maintains is not similar to any statute
in Montana. Williams thus presents a challenge to the validity of Volinkaty’s affidavit.
We adopted the Franks procedure for challenging the validity of a warrant affidavit in
State v. Sykes, 194 Mont. 14, 20, 663 P.2d 691, 695 (1983); overruled on other grounds
by State v. Long, 216 Mont. 65, 69, 700 P.2d 153, 156 (1985). “[A] warrant affidavit
must set forth particular facts and circumstances underlying the existence of probable
cause, so as to allow the magistrate to make an independent evaluation of the matter.”
Franks v. Delaware, 438 U.S. 154, 165, 98 S. Ct. 2674, 2681 (1978). “There is, of
course, a presumption of validity with respect to the affidavit supporting the search
warrant.” Franks, 438 U.S. at 171, 98 S. Ct. at 2684. A “judge or magistrate is required
to evaluate only the facts asserted within the four corners of a search warrant application.
If inaccurate or misleading information is included in that application, it must be excised
from the application regardless of whether that information was included mistakenly,
negligently, or intentionally.” State v. Worrall, 1999 MT 55 ¶ 33, 293 Mont. 439, 976
P.2d 968 (citation omitted); overruled on other grounds by State v. Kasparek, 2016 MT
163, ¶ 12, 384 Mont. 56, 375 P.3d 372. “This Court’s only function is to ensure that the
issuing judicial officer had a substantial basis to determine that probable cause existed”
and we pay great deference to a magistrate’s determination. State v. Estes, 2017 MT 226,
12
¶ 24, 388 Mont. 491, ___ P.3d ___ (citation omitted). “When the issuance of a search
warrant is based in part on illegal information, the reviewing court shall excise the
illegally obtained information from the application for search warrant and review the
remaining information de novo to determine whether probable cause supported the
issuance of a search warrant.” Estes, ¶ 24 (citation omitted). Significantly,
§ 61-8-402(5), MCA, does not alter how search warrants are to be issued and reviewed.
¶20 Our review, and that of the issuing judge, is constrained to the facts within the four
corners of the affidavit and we decline to conduct a legal inquiry into the similarity of
Montana’s statutes with those of Arizona. At a minimum, such an inquiry would require
consideration of information not within the application and beyond the requirements for
establishing probable cause. See Reesman, ¶ 24; § 46-5-221, MCA. Williams’s
contention is based on a conclusion of law reached after conducting a legal analysis of
the alcohol-related statutory schemes in Arizona, Colorado, and Montana, as well as
specific statutory elements. The determination of whether two statutes are “similar” is
not informed by facts contained within the affidavit which were observed by the officer
in the commission of the alcohol-related offense and any inquiry of statutory similarity
for purposes of § 61-8-402(5), MCA, which is beyond the affiant’s averment that they are
similar, is outside the four corners of the affidavit and unnecessary. Here, Volinkaty
represented under oath that Williams had a prior conviction “for a DUI or substantially
similar offense on 11/20/2008 in Arizona.” Neither Volinkaty nor Judge Anderson is
compelled to conduct an exhaustive legal analysis into “similarity” of the statutes in order
to meet the requirements of § 61-8-402(5), MCA, for issuance of a search warrant.
13
¶21 Finally, we would be remiss if we failed to note that conducting such an analysis
would place an impractical or impossible burden on police officers and issuing judges
prior to applying for or issuing a search warrant. Such a requirement would be time
consuming and DUI investigations are time-sensitive by nature because the evidence of
the offense metabolizes out of the driver’s bloodstream simply by the passage of time.
We are also confident that if the Legislature is dissatisfied with our interpretation made
here, it will exercise its authority and determine otherwise.
¶22 We conclude that conducting a “similarity” analysis of Arizona and Montana DUI
statutes—a question purely of law—would go beyond the four corners of the affidavit. In
the absence of inaccurate, misleading, or illegally obtained information, it was
unnecessary to excise from the affidavit Volinkaty’s representations that Williams had a
prior conviction in Arizona for DUI. The District Court did not err in denying
Williams’s motion to suppress.
¶23 2. Whether the District Court erred in failing to consider the merits of Williams’s
contention that he did not receive the implied consent advisory prior to his blood
draw.
¶24 Williams argues generally that the warrant requirements were not met and that the
City failed to demonstrate that they were met. Williams more specifically argues that
Volinkaty failed to read the implied consent advisory. This failure, Williams argues, is
fatal to the search warrant application’s validity. Williams also faults the District Court
for failing to address this argument. The City responds that Williams failed to raise this
issue in the Municipal Court and that issues raised for the first time on appeal are not
addressed.
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¶25 Those who operate a motor vehicle in the state of Montana have impliedly
consented to submit to a blood or breath test for the purpose of determining the presence
or amount of alcohol or drugs in their body. Section 61-8-402(1), MCA. “[D]ue process
requires that the arresting officer inform the accused of his or her right to obtain an
independent blood test, regardless of whether the accused consents to the test designated
by the officer.” State v. Strand, 286 Mont. 122, 126, 951 P.2d 552, 554 (1997); overruled
on other grounds by State v. Minkoff, 2002 MT 29, ¶ 14, 308 Mont. 248, 42 P.3d 223.
This advisory, derived from principles of fairness and due process, is called the implied
consent advisory.
¶26 “The rule is well established that this Court will not address an issue raised for the
first time on appeal. The reason for the rule is that it is fundamentally unfair to fault the
trial court for failing to rule on an issue it was never given the opportunity to consider.”
State v. Gomez, 2007 MT 111, ¶ 21, 337 Mont. 219, 158 P.3d 442 (quotation and
citations omitted). When the district court acted as an intermediate appellate court, we
review the case as if the appeal was originally filed in this Court, examining the record
independently of the district court’s decision. Stanley, ¶ 26.
¶27 Our review of the record reveals the only issue raised in the Municipal Court was
whether “the blood evidence obtained pursuant to the search warrant should be
suppressed because [Williams’s] previous conviction from Arizona does not qualify as a
‘similar’ offense under Section 61-8-402(5).” It is clear from the briefing in the
Municipal Court, that the parties agreed that the implied consent advisory had been
given. Both parties referred to Volinkaty providing an implied consent advisory to
15
Williams prior to his refusing to provide a BAC sample. We conclude that whether
Volinkaty supplied the implied consent advisory was not at issue in the Municipal Court
and the District Court correctly declined to address the matter. For the same reason, we
also decline to address Williams’s contention that the search warrant is invalid because
Volinkaty failed to give him the implied consent advisory.
CONCLUSION
¶28 The decision of the District Court affirming the Municipal Court’s denial of
Williams’s motion to suppress is affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
Justice Dirk Sandefur, specially concurring.
¶29 I concur that the City’s application for a DUI search warrant stated sufficient
probable cause to believe that Williams was driving under the influence of alcohol in
violation of § 61-8-401, MCA, and that he waived his assertion of error regarding the
implied consent advisory requirement by failing to raise it in Municipal Court. Thus, I
concur that the Municipal Court did not err in denying Williams’ motion to suppress the
blood alcohol content (BAC) evidence obtained by the Missoula Police pursuant to a
post-refusal DUI search warrant. However, I disagree that the validity of the Municipal
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Court’s search warrant depends on compliance with § 61-8-402(5), MCA, and that the
warrant application complied with the similarity requirement of § 61-8-402(5), MCA.
Rather than attempt to shoehorn the warrant into § 61-8-402(5), MCA, I instead would
affirm on the alternative basis that, regardless of whether Williams’ prior Arizona DUI
conviction occurred under a legal standard of liability similar to §§ 61-8-401 and -406,
MCA, the Municipal Court lawfully issued the search warrant on probable cause of DUI
as independently authorized by § 46-5-221, MCA (general authorization for issuance of
search warrants on probable cause of criminal activity).
¶30 Standing impassably in the path of affirming the Municipal Court’s search warrant
under § 61-8-402(5), MCA, is the express statutory requirement that Williams must have
had a prior Arizona DUI conviction under a legal standard of liability “similar” to
§§ 61-8-401 and -406, MCA (Montana DUI and DUI per se). See § 61-8-402(5), MCA.
Unlike the Colorado statutes at issue in McNally, which had three different classes of
DUI offenses,1 Montana and Arizona have only two base DUI offenses―DUI and DUI
per se. See §§ 61-8-401(1)(a), (3), and -406(1)(a), MCA; Ariz. Rev. Stat.
§ 28-1381(A)(1) and (2). While Arizona and Montana similarly define DUI per se, see
§ 61-8-406(1)(a), MCA (driving or being in actual physical control of a noncommercial
vehicle with BAC of 0.08 or more), and Ariz. Rev. Stat. § 28-1381(A)(2) (driving or
being in actual physical control of a vehicle with an “alcohol concentration of 0.08 or
more”), Arizona defines alcohol-based DUI more broadly than § 61-8-401(1)(a) and (3),
1
See Colo. Rev. Stat. § 42-4-1301(1)(a), (f), (g) (DUI, DUI per se, and “driving while ability
impaired” to the “slightest degree”).
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MCA (driving or being in actual physical control of a vehicle when person’s “ability to
safely operate a vehicle has been diminished” by alcohol intake). Compare Ariz. Rev.
Stat. § 28-1381(A)(1) (driving or being “in actual physical control of a vehicle . . .
[w]hile under the influence of an intoxicating liquor . . . if the person is impaired to the
slightest degree”). See also State v. Miller, 245 P.3d 454, ¶ 7 (Ariz. App. 2011)
(construing Arizona DUI definition). The Arizona “impaired to the slightest degree”
standard requires proof of a lesser degree of impairment than § 61-8-401, MCA
(diminished “ability to safely operate a vehicle”). A person who commits the offense of
DUI under Arizona law does not necessarily commit the offense of DUI under
§ 61-8-401, MCA. Consequently, the State inaccurately represented in the search
warrant application that Williams had a prior DUI conviction under a standard of
criminal liability “similar” to §§ 61-8-401 and -406, MCA.
¶31 As recognized by the Court, the mechanism for judicial review of the sufficiency
of a search warrant application is our constitutionally-mandated Worrall standard of
review requiring excise of inaccurate or misleading factual statements set forth in the
original search warrant application and then reassessment of whether what remains is
sufficient to establish probable cause for issuance of the warrant. Worrall, ¶¶ 32-33
(adopting Montana constitutional standard more stringent than federal Franks standard).
If what remains in original application is not sufficient to establish the necessary probable
cause, the reviewing court must void the warrant and suppress the fruits of the search.
Worrall, ¶¶ 32-33.
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¶32 If, as the Court implies, the validity of the Municipal Court’s search warrant
depends on § 61-8-402(5), MCA, I would extend and similarly apply our Worrall
standard not only to the constitutionally-required probable cause review of search warrant
applications but also to review of the accuracy of the statutorily-required assertion in a
search warrant application under § 61-8-402(5), MCA, that the suspect had a prior DUI
conviction under a standard of criminal liability similar to §§ 61-8-401 and -406, MCA.
Under Worrall, lower court findings of fact would continue to be subject to a clearly
erroneous standard of review, but the related question arising under § 61-8-402(5), MCA,
of whether a statute from another jurisdiction imposes a standard of criminal liability
“similar” to §§ 61-8-401 and -406, MCA, would be a pure question of law necessarily
subject to de novo review for correctness. Here, straightforward application of our
Worrall standard would result in the unavoidable conclusion that the search warrant
application inaccurately represented that Williams had a prior Arizona DUI conviction
under a standard of legal liability similar to §§ 61-8-401 and -406, MCA. The required
excision of that inaccurate information would then require invalidation of the warrant and
suppression of the resulting BAC evidence due to non-compliance with the express
similarity requirement of § 61-8-402(5), MCA.
¶33 The Court’s analysis avoids application of our Worrall standard, and with it any
meaningful review of the State’s compliance with § 61-8-402(5), MCA. The Court
correctly begins with the proposition that judicial review of the sufficiency of a search
warrant application is limited to review of the information within the four corners of the
application. But the analysis goes awry when it asserts that application of our Worrall
19
standard to the similarity requirement of § 61-8-402(5), MCA, would improperly call for
a conclusion of law dependent on extrinsic legal analysis beyond the four corners of the
search warrant application. The Court’s reasoning overlooks the fact that Worrall allows,
if not necessarily requires, consideration of extrinsic information as a basis to assess the
truth and accuracy of the information set forth within the four corners of the application.
Regardless of whether the predicate information involves a matter of fact or matter of
law, the critical focus of our Worrall standard of review is whether the predicate
information alleged by the State as the legal justification for issuance of a search warrant
is true and accurate. The purported “impractical or impossible” time-consuming “burden
on police officers and issuing judges,” of verifying the accuracy of a sworn
representation in a search warrant application, has no bearing whatsoever on the critical
question of whether the court issued the warrant based on accurate information required
by law.
¶34 Neither the obvious public policy importance of effective DUI investigation and
prosecution, nor the practical inconvenience of requiring law enforcement to comply with
a legal requirement imposed by the Legislature, have any proper place in the construction
of the clear and unambiguous similarity requirement of § 61-8-402(5), MCA. If, as the
Court implies, the validity of DUI-related search warrants necessarily depends on
compliance with § 61-8-402(5), MCA, the sky will not fall and cripple DUI
investigations if the State has to provide accurate information to comply with the
statutory similarity requirement. Montana law enforcement officers have, or should have,
24/7 legal support from state and local prosecutors as needed. As Montana’s chief law
20
enforcement officer, the Attorney General certainly has the resources and expertise to
support law enforcement and local prosecutors by surveying and publishing the various
comparative standards of DUI-related liability in other jurisdictions. Finally, any law
enforcement problem caused by compliance with § 61-8-402(5), MCA, is the sole
responsibility of the Legislature, not this Court. Accordingly, I respectfully disagree with
the Court’s stated rationale for upholding the validity of the search warrant in this case.
¶35 Proper resolution of this case merely requires recognition of the independent
availability of unrestricted DUI-related search warrants under § 46-5-221, MCA. Prior to
2011, Montana law did not specifically provide for DUI-related search warrants. The
two primary legal means available to law enforcement to obtain DUI-related BAC
evidence were:
(1) voluntary consent of the person to the implied consent request of a law
enforcement officer for a preliminary breath test in the field on reasonable
suspicion of a DUI-related offense, § 61-8-409(4), MCA, and/or a more
precise breath or blood test following the person’s arrest on probable cause
of a DUI-related offense, § 61-8-402(4), MCA; and
(2) involuntary seizure and scientific analysis (search) of a person’s blood upon
a search warrant issued pursuant to § 46-5-221, MCA, on probable cause of
criminal activity, whether DUI or non-DUI-related, and the presence of
particularly described related evidence or contraband at or in a particularly
described location.
As to the latter, unrestricted search warrants have always been available to law
enforcement “on probable cause to believe that an offense has been committed” and that
“evidence . . . connected with the offense may be found.” Section 46-5-221, MCA
21
(emphasis added).2 As defined by §§ 61-8-401 and -406, MCA, DUI and DUI per se are
“offenses” as referenced in § 46-5-221, MCA. See § 46-1-202(15), MCA (definition of
“offense”). Even before the 2011 Legislature expressly clarified the matter in
§ 46-5-224(1), MCA (specifically including detectable BAC in preexisting authorization
for seizure of “evidence” by warrant), measurable BAC has always been “evidence
connected with” DUI-related offenses for purposes of § 46-5-221, MCA. See
§§ 26-1-101(2), 46-5-224(1), and 61-8-404(1)(a), MCA. Fifty years ago, the 1967
Legislature broadly crafted § 46-5-224, MCA, to “set out as expansively as possible the
items which may be seized under a search warrant.” State v. Quigg, 155 Mont. 119, 129,
467 P.2d 692, 697-98 (1970) (quoting Criminal Law Commission Comments) (emphasis
added); 1967 Mont. Laws 372.
¶36 In various forms since original enactment in 1971, Montana’s primary implied
consent statute has allowed DUI suspects to refuse to submit to warrantless implied
consent BAC tests subject only to temporary loss of driving privileges upon refusal. See
§ 61-8-402(4), MCA. From 1971 through 1995, § 61-8-402, MCA3 provided that, if an
arrested person “refuses . . . to submit” to a warrantless implied consent test, “none shall
be given.” Section 61-8-402(3), MCA (1995); 1971 Mont. Laws 640. From 1997 to
2
The statute setting forth probable cause grounds for search warrants was enacted as part of the
Montana Code of Criminal Procedure, and codified as § 95-704, R.C.M. 1947 (1967 Mont. Laws
372), and renumbered as § 46-5-202, MCA. In 1991, the search warrant statute was amended
and renumbered to become § 46-5-221, MCA. 1991 Mont. Laws 3030. Telephonic search
warrants were similarly available well before 2011. See §§ 46-5-202(3)-(5), MCA (1985) and
46-5-222, MCA (1991).
3
Formerly numbered § 32-2142.1, R.C.M. 1947.
22
date, § 61-8-402, MCA, has similarly provided that, if a person “refuses . . . to submit” to
a warrantless implied consent test, “the refused test . . . may not be given.” Section
61-8-402(4), MCA; 1997 Mont. Laws 492.4 This clear and unequivocally plain limiting
language in Montana’s implied consent statutes has always applied only to the
warrantless post-refusal BAC tests authorized by the statutes. The plain language of
Montana’s implied consent statutes has never barred or otherwise limited
warrant-authorized seizures and searches of DUI-related blood samples under the
independent authority of § 46-5-221, MCA.
¶37 Nonetheless, despite clear and unequivocal statutory language to the contrary,
widespread misconception has long existed that the limiting language of §§ 61-8-402(4)
and -409(4), MCA, not only barred warrantless post-refusal DUI-related seizures of BAC
evidence but also warrant-authorized DUI-related seizures.5 The long-standing
misconception stems from a too cursory and undiscerning analysis of our decision in
Collins v. Montana Dept. of Justice, 232 Mont. 73, 755 P.2d 1373 (1988). In the
anomalous context of a civil assault and battery action against an investigating Montana
Highway Patrol officer and the State, we considered whether the limiting language
§ 61-8-402(3), MCA (1983), barred post-refusal, warrant-authorized blood seizures as the
lynchpin for determining whether the officer and the State had qualified immunity from
4
Montana’s supplemental implied consent statute authorizing warrantless preliminary alcohol
screening tests (PAST) has always similarly provided that, “if a person refuses to submit to a test
under this section, a test will not be given.” Section 61-8-409, MCA; see 1995 Mont. Laws
2081.
5
See Hearing on S.B. 42, before the Mont. Sen. Jud. Comm., 62nd Leg. Reg. Sess.
00:43:37-01:23:14 (Jan. 20, 2011) and Hearing on S.B. 42 before the Mont. House Jud. Comm.,
62nd Leg. Reg. Sess. 00:58:22-01:25:59 (March 17, 2011).
23
the plaintiff’s civil assault and battery claims. Collins, 232 Mont. at 77-78, 755 P.2d at
1375-76. Whether the limiting language in § 61-8-402(3), MCA (1983), barred
post-refusal, warrant-authorized, DUI-related seizure of BAC evidence was not squarely
at issue. Rather, based on the State’s concession, we assumed, without analysis, that
§ 61-8-402(3), MCA (1983), barred post-refusal DUI-related search warrants. Based on
that uncontested assumption, we merely held that the district court erroneously denied
qualified immunity to the officer and State because the limiting language in the implied
consent statute in any event did not bar warrant-authorized post-refusal blood seizures
based on non-DUI-related offenses. Collins, 232 Mont. at 77-78, 755 P.2d at 1375-76.6
In 2014, we perpetuated the misconception by cursorily stating, without analysis, that the
limiting language in the pre-2011 implied consent statute “did not permit law
enforcement to apply for a search warrant in DUI cases if an arrested person refused to
submit to BAC testing.” Giacomini, ¶¶ 10-11 (citing Collins, 232 Mont. at 78, 755 P.2d
at 1376).
¶38 However, upon our first opportunity to squarely construe the meaning of the
limiting language in § 61-8-402(4), MCA, we clarified that our contrary statement in
Giacomini was mere dicta and held that the still-present limiting language in
§ 61-8-402(4), MCA, applies only to warrantless post-refusal BAC tests, not DUI-related
6
Aside from Collins’ manifestly limited scope and further undermining it as authority aiding in
the construction of § 61-8-402, MCA, our reasoning was suspect given that the non-DUI-related
“offense” upon which we distinguished application of the implied consent statute was not an
“offense” for purposes of the qualified immunity/scope of employment matter at issue. The
non-DUI-related “offense” was merely a suspected violation of an alcohol restriction imposed as
a condition of the DUI suspect’s preexisting probation and, thus, beyond the scope of officer’s
duty to investigate and enforce absent prior authorization of the suspect’s probation officer. See
§ 46-1-202(15) and (17), MCA (definitions of an “offense” and “peace officer”).
24
blood draws independently authorized by search warrant. State v. Minett, 2014 MT 225,
¶¶ 12-17, 376 Mont. 260, 332 P.3d 235. Though the case did not involve a search
warrant issued after an implied consent refusal, Minett remains important here because
our plain meaning construction of the limiting language of § 61-8-402(4), MCA, did not
depend on the presence or absence of an implied consent refusal. See Minett, ¶¶ 12-17.
Minett merely recognized what should have been obvious all along―the limiting
language of § 61-8-402(4), MCA, expressly applies only to warrantless post-refusal
DUI-related seizures of BAC evidence. Consequently, contrary to the longstanding
misconception and our now superseded dicta in Giacomini, DUI-related search warrants
have always been, and remain, available to law enforcement under the general authority
of § 46-5-221, MCA, without any requirement for a prior DUI conviction or implied
consent refusal. The only question is whether, in enacting Senate Bill 42, the 2011
Legislature in any way limited the preexisting availability of DUI-related search warrants
under the independent authority of § 46-5-221, MCA.
¶39 In a well-intentioned effort to enhance effective enforcement of Montana’s DUI
laws by closing a misperceived loophole protecting DUI-related offenders, the 2011
Legislature revised Montana’s implied consent statutes to expressly make post-refusal
search warrants available to law enforcement to obtain otherwise unavailable BAC
evidence against repeat DUI offenders. Section 61-8-402(5), MCA; 2011 Mont. Laws
1164. The new provision defined a repeat DUI offender as a person who has a prior
DUI-related conviction or implied consent refusal under Montana law “or a similar
statute in another jurisdiction.” Section § 61-8-402(5), MCA. Given the Legislature’s
25
narrow focus on repeat offenders and the widespread misconception that Montana’s
existing implied consent statutes barred law enforcement from obtaining post-refusal
DUI-related search warrants, it is not surprising that nothing in the express language,
title, or legislative history of Senate Bill 42 evinces any legislative intent to affirmatively
limit the preexisting availability of DUI-related search warrants under § 46-5-221, MCA.
The new warrant exception, § 61-8-402(5), MCA, and accompanying amendments to
§§ 61-8-402(4) and -409(4), MCA, make sense only under the then-prevailing
misconception that the preexisting implied consent statutes barred both warrantless and
warrant-authorized post-refusal seizures of BAC evidence. Regardless of the
Legislature’s clear intent to limit the availability of the new warrant authorization,7
legislation enacted to partially plug a perceived loophole in DUI enforcement cannot
logically be construed as legislative intent to affirmatively limit an independently
available, preexisting search warrant authorization the Legislature did not believe existed.
7
Under the misconception that DUI-related search warrants were not then available under
existing law, and consistent with the express limiting language in the proposed new section,
§ 61-8-402(5), MCA, the sponsor of SB 42, Sen. Jim Shockley, explained to the House Judiciary
Committee that the new warrant authorization would be available only upon a second or
subsequent DUI offense or implied consent refusal, to wit:
[R]ight now, the way that the statutes are written, you cannot get a warrant from a
court to draw blood from a suspect who the officer believes is impaired by alcohol
or drugs. . . . What this does provide is a constitutional way for law enforcement
to conduct a search to gather evidence against a person believed to have
committed a crime. . . . [But] there’s a mulligan. I don’t golf, but I understand that
if you golf and you mess up the first shot . . . it doesn’t count. And that’s what this
is, a mulligan. This bill does not apply, you can’t get a warrant, unless the person
has refused to cooperate with law enforcement before, refused to either blow or
give blood, or has a . . . previous DUI, or is awaiting trial on DUI. In other words,
this is the second mistake.
Hearing on S.B. 42, House Jud. Comm., 62nd Leg. Reg. Sess. 00:58:58-1:00:37 (March 17,
2011).
26
Though certainly creating unnecessary ambiguity between statutes, the 2011 revisions to
§ 61-8-402, MCA, simply did not supersede, limit, or otherwise affect the preexisting
availability of DUI-related search warrants under § 46-5-221, MCA. Thus, unrestricted
DUI-related search warrants remain available to law enforcement under § 46-5-221,
MCA, unaffected by the limiting language in § 61-8-402(5), MCA.
¶40 In the continuing absence of any statutory provision handcuffing law enforcement
by clearly and unequivocally limiting the long-standing independent availability of
unrestricted DUI-related search warrants under § 46-5-221, MCA, I would hold that,
regardless of the inaccurate statement in the warrant application that Williams had a prior
out-of-state DUI conviction under a statute similar to §§ 61-8-401 or -406, MCA, the
Missoula Police lawfully seized his blood pursuant to a post-refusal search warrant
properly issued by the Municipal Court in accordance with the independent authority of
§ 46-5-221, MCA. I would further respectfully suggest that the Legislature review and
clean up this mess at its earliest convenience.
/S/ DIRK M. SANDEFUR
27