Tie the DUI judge down to a ruling: Lesson from Montana DUI Law
The Montana Supreme court, in an unpublished DUI case shows that a vague factual conclusion does not always support an appeal. The lesson to be learned is to always tie your judge down.
The Cite: Supreme Court of Montana. STATE of Montana (City of Great Falls), Plaintiff and Appellee, v. Kimbrli Lavon ROSS, Defendant and Appellant. No. DA 07-0740. Submitted on Briefs Sept. 3, 2008. Decided Nov. 10, 2008.
Despite Ross's claim that the Municipal Court rejected evidence from Officer Scheer that Ross's tires hit the curb as it completed the turn onto First Avenue North, there is no evidence to support this contention. The Municipal Court stated the following in its findings of fact:
The officer also testified that the defendant cut the corner at 15th Street and First Ave N. causing her tires to rub against the curb; the defendant disputed that testimony and the videotape did not show the maneuver.
Contrary to Ross's interpretation, the fact that the court recognized that the videotape did not show the bumping of the curb does not mean that the court thereby rejected the officer's testimony that Ross's tires rubbed the curb. Read in context, it is clear that the court accepted Officer Scheer's testimony on this point. We do note that it would facilitate review of decisions if courts, in their fact finding would make declarative findings of fact, instead of merely reciting what a witness said. Such declarations of fact should, of course, be based upon testimony or evidence before the court.
ANALYSIS AND PRACTICE TIP: Tie the judge down on the record. Make sure that there is not any wiggle room factually when you must appeal under an abuse of discretion standard. DUI cases require follow up.
It surprises me when I see DUI lawyers who otherwise did a great job in a motions hearing blindly accept a vague ruling from a judge. Ask for clarification when it is warranted. If the judge refuses to give it, say something like "Your Honor, I understand your ruling to mean..." and then spell out the conclusion that you need to support your record on appeal. Even if the judge clarifies against your client's interest, you are better off knowing at the trial court level rather than waiting for the Supreme Court to shoot you down. Your client will appreciate that you at least saved him the additional cost of a pointless appeal.
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