Montana DUI Opinion issued February 24, 2009
In an opinion issued, but not released for publication, of February 24, 2009, the Supreme Court of Montana issued a new Montana DUI opinion.
The Case:
The Briefs:
Appeallant's Opening Brief - Appellee's Brief - Reply Brief
The basis for appeal:
Ditton now appeals from the District Court's decision, raising several issues. First, he maintains that there was no particularized suspicion justifying the stop. Second, he argues that Sergeant Crawford lacked the authority to stop and arrest him for DUI. Third, Ditton argues that the District Court erred in concluding that his motion to dismiss was properly denied and maintains that the Municipal Court was required to make a judicial determination, supported by a sworn oath or affidavit, that probable cause existed for the DUI charge filed against him in the Notice. Finally, Ditton argues that the Municipal Court erred in requiring him to pay his fines from his Veterans Affairs disability payment, arguing that the Municipal Court was federally preempted from basing his fines on this income.
Issue 1: Did the District Court err in concluding there was particularized suspicion to justify Ditton's stop?
Particularized suspicion to justify an investigative stop is proven by the presentation of "objective data from which an experienced officer can make certain inferences, and a resulting suspicion that a person is or has been engaged in wrongdoing." Morris v. State, 2001 MT 13, ¶ 9, 304 Mont. 114, 18 P.3d 1003. Whether particularized suspicion exists is based on the totality of the circumstances. Morris, ¶ 9. Here, the odd angle of Ditton's car, the fact that he was leaving a bar late at night, his ensuing driving behavior, and his failure to properly make a right hand turn, provided objective data from which an experienced officer like Sergeant Crawford could suspect that Ditton was driving under the influence. Whether or not Ditton's driving behavior was technically "legal," the totality of the circumstances before Sergeant Crawford provided a sufficient basis for particularized suspicion to justify the traffic stop in this case. See State v. Brander, 2004 MT 150, ¶ 6, 321 Mont. 484, 92 P.3d 1173; Widdicombe v. State ex. rel. Lafond, 2004 MT 49, ¶ 12, 320 Mont. 133, 85 P.3d 1271. Because Ditton has failed to show that either the Municipal Court or District Court erred in this regard and that any of the findings of fact in this case were clearly erroneous, we affirm the District Court's decision.
Issue 2: Did the District Court err in concluding there was probable cause for Ditton's DUI arrest?
We agree with the District Court that these facts provided sufficient probable cause for Sergeant Crawford to arrest Ditton for DUI. Once again, Ditton has failed to show that any of findings of fact in support of probable cause were clearly erroneous, or that either of the lower courts erred in any respect. Thus, we affirm the conclusion that Sergeant Crawford had probable cause to arrest Ditton for DUI.
Issue 3: Did the District Court err in concluding that Ditton was properly charged with DUI in the Municipal Court?
However, probable cause to arrest Ditton for DUI was clearly present in this case. Thus, Sergeant Crawford had the option of either formally arresting Ditton and placing him in detention, or issuing the Notice. He chose the latter course. Because probable cause to arrest Ditton was present, and because the Notice does not require a sworn affidavit or oath to be valid, we conclude the District Court did not err in affirming the Municipal Court's decision to deny Ditton's motion to dismiss.
And now for what Ditton got from his efforts:
We affirm Ditton's conviction for DUI in Municipal Court. However, we remand Ditton's sentence to the District Court with instructions that it vacate the imposition of $885 in fees and costs based on his Veterans Affairs disability benefits.
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.
