12/28/2017
DA 16-0249
Case Number: DA 16-0249
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 322N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FREDERICK THOMAS OFFENKRANTZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-15-297
Honorable Karen S. Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens, Smith & Stephens, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Mac Bloom, Deputy County
Attorney, Missoula, Montana
Submitted on Briefs: December 6, 2017
Decided: December 28, 2017
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Frederick Offenkrantz appeals the District Court’s December 14, 2015 order
denying his motion to dismiss and to suppress. We affirm.
¶3 In August 2013, a Montana Highway Patrol Trooper stopped Offenkrantz’s
vehicle on Interstate 90 near Rock Creek because the trailer he was pulling had a
burned-out tail light. The Trooper asked Offenkrantz for his license and insurance
information, noting that he exhibited “cotton mouthed” speech and he avoided eye
contact. The Trooper gave Offenkrantz a warning for the tail light and told him he was
free to go. At that point the Trooper detected an odor of alcohol from the vehicle and
saw a beer can in the trailer.
¶4 The Trooper confirmed that the alcohol odor was coming from the vehicle and
Offenkrantz admitted that he had a “lot to drink last night.” He consented to a breath test
and registered over the legal limit for alcohol. The State charged Offenkrantz with
aggravated driving under the influence. He was convicted in Justice Court and appealed
to District Court where his conviction was upheld.
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¶5 On appeal to this Court, Offenkrantz contends that the Trooper who stopped his
vehicle lacked particularized suspicion to investigate him for DUI after giving him a
warning for the tail light. He also contends that he was not provided effective assistance
of counsel in the proceedings below.
¶6 Upon the facts presented, we conclude that the Trooper had sufficient
particularized suspicion to investigate Offenkrantz for DUI. There seems to be no
dispute that the Trooper noted that Offenkrantz exhibited “thick speech,” similar to what
results from dehydration that often accompanies alcohol consumption; that Offenkrantz
avoided making eye contact; that the Trooper smelled the odor of alcohol coming from
the vehicle; and that there was a beer can in the trailer. Therefore, the Trooper’s decision
was based upon objective data arising from articulable facts, which was sufficient to
allow the Trooper to conduct further investigation. Brown v. State, 2009 MT 64,
¶¶ 19-20, 349 Mont. 408, 203 P.3d 842. The District Court properly denied
Offenkrantz’s motion to suppress the evidence arising from the traffic stop.
¶7 Offenkrantz also contends that he was denied effective assistance of counsel in the
proceedings below. After review of the parties’ arguments, we determine that the record
on appeal is not sufficient to allow this Court to decide the issue under established legal
standards. Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861. We do so
without prejudice to Offenkrantz’s right to seek postconviction relief as provided in
§ 46-21-101, MCA.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
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of the Court, this case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶9 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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