96-050
No. 97-050
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and
Respondent,
v.
ED ROY
SIDMORE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lane K. Bennett, Kalispell, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant
Attorney General, Helena, Montana; Kim Christopher, Lake County
Attorney, Robert J. Long, Deputy Lake County Attorney, Polson, Montana
Submitted on Briefs: October 30, 1997
Decided: December 18, 1997
Filed:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (1 of 18)4/17/2007 4:26:11 PM
96-050
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Ed Roy Sidmore (Sidmore) appeals from a jury trial conviction of felony DUI,
fourth offense, and from rulings made by the Twentieth Judicial District Court, Lake
County, denying his motions to dismiss the charge of felony DUI, fourth offense. We
reverse and order the felony charges against Sidmore to be dismissed.
Sidmore raises the following issues on appeal:
1. Did the District Court err in denying his motion to dismiss for lack of
jurisdiction related to the use by the State of his 1990 BAC conviction and his 1988
Idaho
DUI conviction, for felony enhancement, because those convictions were expunged?
2.Did the District Court err by not allowing his testimony regarding what
he
was informed of by the Kalispell City Judge concerning his 1990 BAC conviction?
3.
Did the District Court err in denying his motion to dismiss due to the
fact
that the 1988 Idaho conviction was uncounseled, and there was no evidence that he had
knowingly and intelligently waived his right to counsel?
4. Did the District Court err in denying his motion to dismiss for failure
of the
State to provide him the opportunity to obtain exculpatory evidence, i.e., an
independent
blood test?
5.Did the District Court err by either instructing the jury that he was
charged
with a felony and as to his three prior convictions and requiring the State to
present
evidence of such or avoiding that by requiring him to stipulate prior to trial?
The original Opinion in this cause was issued on October 7, 1997, and appeared
in 54 St.Rep. 1026. In the original Opinion, we reversed the District Court,
concluding
that the portion of Issue 1 relating to Sidmore's 1990 BAC conviction was
dispositive of
the appeal, and, consequently, we declined to address that part of Issue 1 regarding
Sidmore's 1988 Idaho DUI conviction and we declined to address Issues 2-5.
Thereafter,
the State filed a petition for rehearing pursuant to Rule 34, M.R.App.P., and Sidmore
filed a brief in opposition. On October 30, 1997, we granted the State's petition
for
rehearing, reserving our discussion of the arguments necessitating rehearing for this
Opinion.
Without disagreeing with our Opinion issued October 7, 1997, the State argues
in
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (2 of 18)4/17/2007 4:26:11 PM
96-050
its petition for rehearing that we erred by simply reversing the District Court.
Relying
on õ 3-5-302(2), MCA (1995), the State contends that although Sidmore may have been
improperly charged with felony DUI, the District Court properly has jurisdiction
over this
case. The State, therefore, asserts that we should address the remaining issues on
appeal
and remand this case to the District Court for further proceedings.
Sidmore opposes the State's petition. Relying on õ 3-10-303(1), MCA (1995),
Sidmore argues that we properly reversed the District Court because the District
Court
lacked jurisdiction. Sidmore contends that with the expungement of his 1990 BAC
conviction, his current 1996 DUI conviction is only his second offense, which
pursuant
to õ 61-8-714(2), MCA (1995), is punishable by a fine not less than $300 or more than
$500 and by imprisonment for not less than seven (7) days or more than six (6)
months.
Therefore, Sidmore asserts, that under õ 3-10-303(1), MCA (1995), his 1996 DUI
conviction is a misdemeanor over which the justices' courts have original
jurisdiction.
Citing õõ 61-8-714(3) and 3-10-303(3), MCA (1995), Sidmore concedes that if his 1996
DUI conviction counted as his third offense, the District Court would have concurrent
jurisdiction. However, Sidmore maintains that his 1996 DUI was only his second
offense, and, therefore, the District Court did not have original jurisdiction.
We disagree with the State that under õ 3-5-302(2), MCA (1995), the District
Court retains jurisdiction in this case even though Sidmore was improperly charged
with
felony DUI in the first instance. Section 3-5-302(2)(b), MCA (1995), provides that
the
district court has concurrent jurisdiction with the justices' court in "misdemeanors
resulting from the reduction of a felony or misdemeanor offense charged in the
district
court." We agree with Sidmore that this statute does not apply on the facts of this
case.
Contrary to the State's argument, the felony with which Sidmore was charged, tried
and
convicted was never reduced to a misdemeanor in the District Court. Furthermore, to
argue that the District Court retains jurisdiction under õ 3-5-302(2)(b), MCA
(1995), is
to assume that the District Court properly exercised jurisdiction from the
beginning.
However, this argument and its underlying assumption confuse the issue--the issue is
not
whether the District Court should retain jurisdiction over this case, but whether the
District Court properly exercised jurisdiction in the first place. Therefore, to
resolve
this issue, we must look to õ 3-10-303, MCA (1995).
We note in our original Opinion issued October 7, 1997, we held that Sidmore's
1990 BAC conviction should have been expunged from his record pursuant to õ 61-8-
722(6), MCA (1989). With the expungement of Sidmore's 1990 BAC conviction, two
previous convictions remain on his record--a 1988 Idaho DUI conviction and a 1994
Montana DUI conviction. Consequently, based on our previous Opinion and contrary to
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (3 of 18)4/17/2007 4:26:11 PM
96-050
Sidmore's argument, his current 1996 DUI would be his third offense. Pursuant to õ
61-
8-714(3), MCA (1995), a third DUI conviction is punishable by imprisonment of not
less
than thirty (30) days or more than one (1) year and a fine of not less than $500 or
more
than $1,000. Therefore, as Sidmore concedes, pursuant to õ 3-10-303(3), MCA (1995),
the justices' courts and district courts would have concurrent jurisdiction over a
third DUI
offense. Because the District Court would have concurrent jurisdiction over a third
DUI
offense, our decision to address only that part of Issue 1 concerning Sidmore's 1990
BAC
conviction and to simply reverse the District Court was in error. For these
reasons, we
agree to address the remaining issues on appeal. Accordingly, our original Opinion
issued October 7, 1997, is now withdrawn and this Opinion substituted.
FACTUAL AND PROCEDURAL BACKGROUND
On March 23, 1996, Sidmore was arrested for driving while under the influence
(DUI) and for driving while his license was revoked. Sidmore's driving record
revealed
that he had received two previous DUI convictions (a 1988 Idaho conviction and a 1994
Montana conviction) and one conviction in 1990 for driving with excessive blood
alcohol
concentration (BAC), in violation of õ 61-8-406, MCA (1989). Consequently, on April
8, 1996, an Information was filed with the Twentieth Judicial District Court, Lake
County, charging Sidmore with felony DUI, fourth offense, in violation of õ 61-8-
401(1)(a), MCA (1995), (Count I). Additionally, Sidmore was charged with driving
while license suspended or revoked, a misdemeanor, in violation of õ 61-5-212, MCA
(1995), (Count II). On April 10, 1996, Sidmore entered pleas of not guilty to both
charges.
On May 17, 1996, Sidmore moved to dismiss Count I of the Information alleging
that the felony charge against him violated his rights to be free from ex post facto
legislation; that his 1988 DUI conviction and 1990 BAC conviction should be expunged;
that the State violated prior plea bargain agreements with him; and that the State
violated
his due process rights by failing to provide an independent blood test. On June 12,
1996,
the District Court held an evidentiary hearing regarding Sidmore's motion to dismiss
and
denied his motion. At the end of the hearing, Sidmore entered a plea of guilty to
Count
II. Thereafter, Sidmore submitted two more motions to dismiss Count I, which the
District Court also denied. The court did not support its denial of any of
Sidmore's three
motions to dismiss with a memorandum of opinion or rationale.
On August 29, 1996, a jury trial was held and Sidmore was found guilty of Count
I. On October 9, 1996, a sentencing hearing was held. On March 3, 1997, the
District
Court issued an amended judgment and commitment, sentencing Sidmore, based on
certain conditions, to the Montana State Prison for six years, with four years
suspended
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (4 of 18)4/17/2007 4:26:11 PM
96-050
under Count I and to the Lake County Jail for a concurrent six month suspended
sentence
under Count II. However, the District Court stayed execution of this sentence
pending
appeal. Sidmore appeals from the District Court's denial of his motions to dismiss,
from
other various alleged errors and from his judgment and sentence.
DISCUSSION
A district court's grant or denial of a motion to dismiss in a criminal case
is a
question of law which we review de novo. State v. Brander (1996), 280 Mont. 148,
151,
930 P.2d 31, 33 (citation omitted). The two issues addressed in this Opinion arise
from
arguments made in Sidmore's May 17, 1996 motion to dismiss which the District Court
denied after an evidentiary hearing on June 12, 1996. First, in addressing Sidmore's
expungement arguments in Issue 1, we conclude that both Sidmore's 1990 BAC
conviction and his 1988 Idaho DUI conviction should have been expunged from his
Montana driving record, and, therefore, these convictions could not now be counted to
support the present charge of felony DUI, fourth offense, pursuant to õ 61-8-714, MCA
(1995). Consequently, with our decision that two of Sidmore's three prior
convictions
should be expunged, his current 1996 DUI is only his second offense. Accordingly,
without disrupting our decision to grant rehearing, we now conclude that the District
Court lacked original jurisdiction in this cause because Sidmore's 1996 DUI is only
his
second offense. See õõ 61-8-714(2) and 3-10-303(1), MCA (1995). Consequently, we
hold that the District Court erred by denying Sidmore's motion to dismiss Count I of
the
Information for lack of original jurisdiction. Accordingly, we reverse the District
Court
and order the felony charges against Sidmore to be dismissed.
Furthermore, we note that neither the State nor Sidmore develop any arguments
concerning whether the 1996 DUI charges can be re-filed in justice court as a
misdemeanor DUI, and, therefore, we will not address this issue. However, we
acknowledge that the issue of whether Sidmore's due process right to obtain an
independent blood test was violated may be raised again if the charges against him
are
re-filed in justice court. Therefore, we have addressed this issue. In so doing, we
conclude that Sidmore's right to obtain an independent blood test was not violated,
and,
therefore, we hold that the District Court did not err in denying Sidmore's motion to
dismiss on this basis.
1. Did the District Court err in denying Sidmore's motion to dismiss for lack of
jurisdiction related to the use by the State of his 1990 BAC conviction and his 1988
Idaho DUI conviction, for felony enhancement, because those convictions were
expunged?
Sidmore was charged and convicted of felony DUI, fourth offense, pursuant to õ
61-8-714, MCA (1995), which provides in pertinent part:
(4) On the fourth or subsequent conviction, the person is guilty
of a felony offense and shall be punished by imprisonment for a term of
not less than 1 year or more than 10 years and by a fine of not less than
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (5 of 18)4/17/2007 4:26:11 PM
96-050
$1,000 or more than $10,000. . . ..
. . ..
(6) For the purpose of determining the number of convictions
under this section, "conviction" means a final conviction, as defined in 45-
2-101, in this state, conviction for a violation of a similar statute in
another
state, or a forfeiture of bail or collateral deposited to secure the
defendant's
appearance in court in this state or another state, which forfeiture has not
been vacated. An offender is considered to have been previously convicted
for the purposes of sentencing if less than 5 years have elapsed between the
commission of the present offense and a previous conviction, unless the
offense is the offender's fourth or subsequent offense, in which case all
previous convictions must be used for sentencing purposes. If there has
not been an additional conviction for an offense under this section for a
period of 5 years after a prior conviction under this section, then all records
and data relating to the prior conviction are confidential criminal justice
information, as defined in 44-5-103, and public access to the information
may only be obtained by district court order upon good cause shown.
(7) For the purpose of calculating subsequent convictions under
this section, a conviction for a violation of 61-8-406 also constitutes a
conviction for a violation of 61-8-401. [Emphasis added.]
To support the charge of felony DUI, fourth offense, pursuant to õ 61-8-714, MCA
(1995), the District Court counted Sidmore's two prior DUI convictions as well as his
one prior BAC conviction.
Sidmore argues that the District Court erred in denying his motion to dismiss,
and,
therefore, that the charge of felony DUI, fourth offense, should be dismissed.
Sidmore
concedes that under õ 61-8-714(7), MCA (1995), both BAC and DUI convictions can be
counted to determine the total number of "DUI" convictions a defendant has received.
However, he asserts that both his 1990 BAC conviction and his 1988 Idaho DUI
conviction may not be counted for the purposes of presently charging him with felony
DUI, fourth offense, pursuant to õ 61-8-714, MCA (1995), because these convictions
should have been expunged by operation of law.
Sidmore explains that under the expungement provision of õ 61-8-722(6), MCA
(1989), he was entitled to have his 1990 BAC conviction expunged from his record
because he did not receive a subsequent BAC conviction within the five-year period
following his 1990 BAC conviction. Sidmore also asserts that pursuant to the plain
language of õ 61-8-722(6), MCA (1989), his 1994 DUI conviction did not prevent
expungement of his 1990 BAC conviction.
In this same regard, Sidmore explains that under the expungement provision of õ
61-8-714(5), MCA (1987), he was entitled to have his 1988 Idaho DUI conviction
expunged from his Montana record because he did not receive a subsequent DUI
conviction within the five-year period following his 1988 Idaho DUI conviction.
Sidmore
also asserts that pursuant to the plain language of õ 61-8-714(5), MCA (1987), his
1990
BAC conviction did not prevent expungement of his 1988 Idaho DUI conviction.
The State responds that Sidmore's expungement arguments concerning both his
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (6 of 18)4/17/2007 4:26:11 PM
96-050
1990 BAC conviction and his 1988 Idaho DUI conviction are without merit.
Additionally, specifically regarding Sidmore's argument concerning the expungement of
his 1988 Idaho DUI conviction, the State asserts that Sidmore did not properly
preserve
this argument for appeal. Therefore, the State argues that for the purposes of the
sentence enhancement statute of õ 61-8-714, MCA (1995), Sidmore's present offense is
his fourth DUI offense. Consequently, the State asserts that the District Court
properly
denied Sidmore's motion to dismiss. We disagree.
It is black-letter law that:
[i]n the construction of a statute, the office of the judge is simply to
ascertain and declare what is in terms or in substance contained therein, not
to insert what has been omitted or to omit what has been inserted.
Section 1-2-101, MCA. In this case, we need only look to and apply the plain and
unambiguous language of the statutes at issue, particularly õ 61-8-722(6), MCA
(1989),
and õ 61-8-714(5), MCA (1987), to conclude that Sidmore's arguments are correct.
Additionally, we note that Sidmore did raise arguments before the District Court
concerning expungement, under Montana law, of both his 1990 BAC conviction and his
1988 Idaho DUI conviction from his Montana record. Therefore, we will address the
merits of both expungement arguments raised under Issue 1.
a. Expungement of Sidmore's 1990 BAC conviction
In 1990, Sidmore received a BAC conviction pursuant to õõ 61-8-406 and -722,
MCA (1989). Section 61-8-406, MCA (1989), provided:
It is unlawful and punishable as provided in 61-8-722 and 61-8-723 for any
person to drive or be in actual physical control of a vehicle upon the ways
of this state open to the public while the alcohol concentration in his blood,
breath, or urine is 0.10 or more. Absolute liability as provided in 45-2-104
will be imposed for a violation of this section.
Additionally, õ 61-8-722(6), MCA (1989), provided in pertinent part:
For the purpose of determining the number of convictions under this
section, "conviction" means a final conviction, as defined in 45-2-101, in
this state or a similar statute in another state or a forfeiture of bail or
collateral deposited to secure the defendant's appearance in court in this
state or another state, which forfeiture has not been vacated. An offender
is considered to have been previously convicted for the purposes of this
section if less than 5 years have elapsed between the commission of the
present offense and a previous conviction. If there has been no additional
conviction for an offense under this section for a period of 5 years after a
prior conviction hereunder, then such prior offense shall be expunged from
the defendant's record. [Emphasis added.]
Section 61-8-714, MCA (1995), provides that both BAC (õ 61-8-406, MCA) and
DUI (õ 61-8-401, MCA) convictions may be counted to support a charge of felony DUI,
fourth offense. However, in the case at bar, Sidmore's prior 1990 BAC conviction may
only be counted under õ 61-8-714, MCA (1995), if his 1990 BAC conviction was not
expunged from his record pursuant to õ 61-8-722(6), MCA (1989). See Brander, 930
P.2d at 35-37. When Sidmore received his BAC conviction in 1990, õ 61-8-722(6),
MCA (1989), contained an expungement provision which provided that "[i]f there has
been no additional conviction for an offense under this section for a period of 5
years
after a prior conviction hereunder, then such prior offense shall be expunged from
the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (7 of 18)4/17/2007 4:26:11 PM
96-050
defendant's record. [Emphasis added.]"
That is, the expungement provision of õ 61-
8-
722(6), MCA (1989), provided that if Sidmore did not receive an additional BAC
conviction within the five-year period following his 1990 BAC conviction, he was
entitled
to have his 1990 BAC conviction expunged from his record. Nothing in õ 61-8-
722(6), MCA (1989), provided that both BAC and DUI convictions received within the
five-year period following Sidmore's 1990 BAC conviction could be counted to
determine
whether Sidmore was entitled to have his prior BAC conviction expunged from his
record. Indeed, the plain language of this section requires precisely the opposite
conclusion. In other words, whether Sidmore received a subsequent DUI conviction
within the five-year period following his 1990 BAC conviction would not affect his
1990
BAC conviction's eligibility for expungement under õ 61-8-722(6), MCA (1989),
providing he did not receive another BAC conviction within five years of the 1990 BAC
conviction.
As Sidmore's driving record indicates, while he received a subsequent DUI
conviction in 1994, he did not receive another BAC conviction during the five-year
period
following his 1990 BAC conviction. Consequently, based on the plain language of õ
61-
8-722(6), MCA (1989), Sidmore's 1990 BAC conviction should have been automatically
expunged in 1995, as a matter of law. See State v. Bowles (Mont.1997), 947 P.2d 52,
54 St.Rep. 962 (holding that identical language in the expungement provision of õ 61-
8-
714(5), MCA (1981), provided for automatic expungement of eligible DUI convictions
as a matter of law). That is, all traces of the criminal process relating to his
1990 BAC
conviction should have been destroyed in 1995. See Brander, 930 P.2d at 36
(citations
omitted). Therefore, because Sidmore's 1990 BAC conviction no longer exists, it
cannot
be counted to support the present charge of felony DUI, fourth offense, pursuant to
õ 61-
8-714, MCA (1995).
b. Expungement of Sidmore's 1988 Idaho DUI conviction
In 1988, Sidmore received a DUI conviction from the Magistrate Division of the
First Judicial District Court, Bonner County, Idaho. We agree with Sidmore that
despite
receiving his 1988 DUI conviction in Idaho, this conviction should have been expunged
as a matter of law in 1993 from his Montana driving record pursuant to õ 61-8-714(5),
MCA (1987). In making this conclusion, we note that both Montana and Idaho have
enacted the Driver License Compact. See õõ 61-5-401 et seq., MCA. See also Idaho
Code õ 49-2001. The Driver License Compact provides in pertinent part:
Article III. Reports of Conviction
The licensing authority of a party state shall report each conviction
of a person from another party state occurring within its jurisdiction to
the licensing authority of the home state of the licensee. Such report shall
clearly identify the person convicted; describe the violation specifying the
section of the statute, code, or ordinance violated; identify the court in
which action was taken; indicate whether a plea of guilty or not guilty was
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (8 of 18)4/17/2007 4:26:11 PM
96-050
entered or the conviction was a result of the forfeiture of bail, bond, or
other security; and include any special findings made in connection
therewith.
Article IV. Effect of Conviction
(1) The licensing authority in the home state, for the purposes
of suspension, revocation, or limitation of the license to operate a motor
vehicle, shall give the same effect to the conduct reported, pursuant to
Article III of this compact, as it would if such conduct had occurred in
the home state, in the case of convictions for:
(a) manslaughter or negligent homicide resulting from the
operation of a motor vehicle;
(b) driving a motor vehicle while under the influence of
intoxicating liquor or a narcotic drug, or under the influence of any other
drug to a degree which renders the driver incapable of safely driving a
motor vehicle;
(c) any felony in the commission of which a motor vehicle is
used;
(d) failure to stop and render aid in the event of a motor vehicle
accident resulting in the death or personal injury of another.
(2) As to other convictions, reported pursuant to Article III, the
licensing authority in the home state shall give such effect to the conduct
as is provided by the laws of the home state.
Section 61-5-401, MCA (emphasis added) (pursuant to õ 61-5-401, Art. II, (2), MCA,
"home state" is defined as "the state which has issued and has the power to suspend
or
revoke the use of the license or permit to operate a motor vehicle [i.e., in this
instance,
Montana is the home state]").
Additionally, õ 61-5-107, MCA (1987), sets forth the driver's license
application
process and provides in pertinent part:
(3) Whenever application is received from an applicant previously
licensed by any other jurisdiction, the department shall request a copy of
such applicant's driving record from such previous licensing jurisdiction.
When received, such driving records shall become a part of the driver's
record in this state with the same force and effect as though entered on
the driver's record in this state in the original instance. [Emphasis added.]
In this case, it is unclear from the record whether Sidmore was licensed to
drive
in Idaho or Montana at the time of his 1988 Idaho DUI conviction. However, as
indicated by the emphasized language in the preceding statutes, regardless of the
manner
in which the State of Montana received information concerning Sidmore's Idaho
conviction, this conviction is to be given the same effect as if entered in Montana.
Therefore, because Sidmore received his Idaho DUI conviction in 1988, we apply the
statutory language of õõ 61-8-401 and -714, MCA (1987), to determine not whether his
1988 Idaho DUI conviction should have been expunged from his Idaho record, but
whether his 1988 Idaho DUI conviction should have been expunged from his Montana
record.
Section 61-8-401, MCA (1987), provided in pertinent part:
(1) It is unlawful and punishable as provided in 61-8-714 and 61-
8-723 for any person who is under the influence of:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (9 of 18)4/17/2007 4:26:11 PM
96-050
(a)
alcohol to drive or be in actual physical control of a vehicle
upon the ways of this state open to the public;
(b) a narcotic drug to drive or be in actual physical control of a
vehicle within this state;
(c) any other drug to drive or be in actual physical control of a
vehicle within this state; or
(d) alcohol and any drug to drive or be in actual physical control
of a vehicle within this state.
Additionally, õ 61-8-714(5), MCA (1987), provided:
For the purpose of determining the number of convictions under this
section, "conviction" means a final conviction, as defined in 45-2-101, in
this state or a similar statute in another state or a forfeiture of bail or
collateral deposited to secure the defendant's appearance in court in this
state or another state, which forfeiture has not been vacated. An offender
is considered to have been previously convicted for the purposes of this
section if less than 5 years have elapsed between the commission of the
present offense and a previous conviction. If there has been no additional
conviction for an offense under this section for a period of 5 years after a
prior conviction hereunder, then such prior offense shall be expunged from
the defendant's record. [Emphasis added.]
As is seen from the language of õ 61-8-714(5), MCA (1987), which provided that
"[f]or the purpose of determining the number of convictions under this section,
'conviction' means a final conviction, as defined in 45-2-101, in this state or a
similar
statute in another state . . .," this statutory expungement provision applies to
Sidmore's
1988 Idaho DUI conviction. Furthermore, the language of the DUI expungement
provision of õ 61-8-714(5), MCA (1987), is identical to the language of the BAC
expungement provision of õ 61-8-722(6), MCA (1989). Therefore, we conclude that
Sidmore's 1988 Idaho DUI conviction should have been expunged from his Montana
record in 1993 pursuant to õ 61-8-714(5), MCA (1987), just as his 1990 BAC conviction
should have been expunged from his record in 1995 pursuant to õ 61-8-722(6), MCA
(1989).
That is, the expungement provision of õ 61-8-714(5), MCA (1987), provided that
if Sidmore did not receive an additional DUI conviction within the five-year period
following his 1988 DUI conviction, he was entitled to have his 1988 DUI conviction
expunged from his record. Nothing in õ 61-8-714(5), MCA (1987), provided that both
BAC and DUI convictions received within the five-year period following Sidmore's 1988
DUI conviction could be counted to determine whether Sidmore was entitled to have his
prior DUI conviction expunged from his record. Consequently, whether Sidmore
received a subsequent BAC conviction within the five-year period following his 1988
DUI
conviction would not affect his 1988 DUI conviction's eligibility for expungement
under
õ 61-8-714(5), MCA (1987), providing he did not receive another DUI conviction within
five years of the 1988 DUI conviction.
As Sidmore's driving record indicates, while he received a subsequent BAC
conviction in 1990, he did not receive another DUI conviction during the five-year
period
following his 1988 Idaho DUI conviction. Consequently, based on the plain language
of
õ 61-8-714(5), MCA (1987), Sidmore's 1988 Idaho DUI conviction should have been
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (10 of 18)4/17/2007 4:26:11 PM
96-050
automatically expunged from his Montana record in 1993, as a matter of law. See
Bowles, 947 P.2d 52. That is, all traces of information relating to his 1988 Idaho
DUI
conviction contained in his Montana record should have been destroyed in 1993. See
Brander, 930 P.2d at 36 (citations omitted). Therefore, because Sidmore's 1988 Idaho
DUI conviction no longer exists on his Montana record, it cannot be counted to
support
the present charge of felony DUI, fourth offense, pursuant to õ 61-8-714, MCA
(1995).
Consequently, on this basis, we hold that the District Court erred by denying
Sidmore's motion to dismiss Count I of the Information for lack of original
jurisdiction.
2. Did the District Court err by not allowing Sidmore's testimony regarding what
he was informed of by the Kalispell City Judge concerning his 1990 BAC conviction?
Sidmore alternatively argues that his 1990 BAC conviction cannot be counted in
support of the charge of felony DUI, fourth offense, because he did not knowingly or
intelligently waive his right to counsel in that proceeding. Based on information
the
Kalispell City Judge gave him, Sidmore contends that he did not understand the legal
consequences of his plea of guilty to the 1990 BAC charge, and, therefore, he did not
knowingly or intelligently waive his right to counsel.
In Issue 1, we determined that Sidmore's 1990 BAC conviction should have been
expunged from his record pursuant to õ 61-8-722(6), MCA (1989), and, therefore, his
1990 BAC conviction could not be counted in support of the charge of felony DUI,
fourth
offense. Because our decision in Issue 1 is dispositive, we will not address this
issue.
3. Did the District Court err in denying Sidmore's motion to dismiss due to the
fact that the 1988 Idaho conviction was uncounseled, and there was no evidence that
he had knowingly and intelligently waived his right to counsel?
Sidmore also alternatively argues that his 1988 Idaho DUI conviction cannot be
counted in support of the charge of felony DUI, fourth offense, because he did not
knowingly or intelligently waive his right to counsel in that proceeding.
In Issue 1, we also determined that Sidmore's 1988 Idaho DUI conviction should
have been expunged from his Montana driving record pursuant to õ 61-8-714(5), MCA
(1987), and, therefore, his 1988 Idaho DUI conviction could not be counted in support
of the charge of felony DUI, fourth offense. Again, because our decision in Issue 1
is
dispositive, we will not address this issue.
4. Did the District Court err in denying Sidmore's motion to dismiss for failure
of the State to provide him the opportunity to obtain exculpatory evidence, i.e., an
independent blood test?
On June 12, 1996, an evidentiary hearing was held concerning Sidmore's argument
in his first motion to dismiss that his right to obtain exculpatory evidence was
violated.
During this hearing Sidmore's arresting officer testified that when he processed
Sidmore
for driving under the influence, he read the Implied Consent Law to Sidmore twice and
Sidmore read it once. Then he asked Sidmore to take a breath test and Sidmore
refused.
Sidmore's arresting officer also testified that after reading the Implied Consent
Law to
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (11 of 18)4/17/2007 4:26:11 PM
96-050
Sidmore, Sidmore requested a blood test and that he advised Sidmore that after
processing, he would give Sidmore a telephone book to locate someone to perform the
blood test. Furthermore, he told Sidmore that when Sidmore located someone, he would
take Sidmore to have the blood test performed. Thereafter, Sidmore was placed in a
booking cell which contained a telephone and was given a phone book. The arresting
officer testified that Sidmore remained in the booking cell for 30-45 minutes and
during
that time he was no more than a few feet away from Sidmore, separated only by bars
and
an open doorway. Yet, during that time, Sidmore never made arrangements for an
independent blood test.
Citing City of Whitefish v. Pinson (1995), 271 Mont. 170, 895 P.2d 610, Sidmore
argues that his due process rights were violated because he was denied the
opportunity
to obtain exculpatory evidence. Specifically, Sidmore asserts that he refused an
officer-
designated breath test and stated that he wanted an independent blood test. However,
Sidmore contends that the officer simply provided him with a phone book to locate a
doctor or nurse who was willing to draw blood rather than transporting him to the
local
hospital emergency room for the blood test. Therefore, Sidmore argues that by
failing
to take him for a blood test, the officer violated his right to obtain exculpatory
evidence.
Accordingly, Sidmore concludes that the District Court erred when it failed to
dismiss
the felony DUI charge against him on this basis.
Relying on State v. Klinkhammer (1993), 256 Mont. 275, 846 P.2d 1008, the State
responds that Sidmore did not request an independent blood test. Rather, the State
argues
that Sidmore, like Klinkhammer, requested a blood test in lieu of the officer-
designated
breath test, and, therefore, this constituted a refusal of the officer-designated
test rather
than a request for an independent blood test. Additionally, citing State v. Clark
(1988),
234 Mont. 222, 762 P.2d 853, the State argues that the arresting officer did not
impede
Sidmore's ability to obtain an independent blood test. Accordingly, the State
concludes
that the District Court properly denied Sidmore's first motion to dismiss on this
basis.
In addition to the officer-designated breath test provided for under õ 61-8-
402,
MCA (1995) (the Implied Consent Law), õ 61-8-405(2), MCA (1995), allowed for
additional tests to determine blood alcohol. Section 61-8-405(2), MCA (1995),
provided:
The person may, at the person's own expense, have a physician or
registered nurse of the person's own choosing administer a test, in addition
to any administered at the direction of a peace officer, for the purpose of
determining any measured amount or detected presence of alcohol or drugs
in the person at the time alleged, as shown by analysis of the person's
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (12 of 18)4/17/2007 4:26:11 PM
96-050
blood, breath, or urine. The failure or inability to obtain an additional test
by a person does not preclude the admissibility in evidence of the test or
tests taken at the direction of a peace officer.
In State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155, after quoting õ 61-8-
405(2), MCA, we recognized that an accused person has a constitutionally guaranteed
right to attempt to obtain exculpatory evidence. Swanson, 722 P.2d at 1157. More
specifically, we recognized that the accused's right to obtain exculpatory evidence
includes the right to obtain an independent test to establish sobriety when charged
with
the offense of driving under the influence, even if the accused has refused a test
offered
by a law enforcement officer. Swanson, 722 P.2d at 1157. Furthermore, we held that
"[w]hile the police have no duty to assist an accused in obtaining independent
evidence
of sobriety, they cannot frustrate such an effort through either affirmative acts or
their
rules and regulations." Swanson, 722 P.2d at 1158.
In State, City of Bozeman v. Peterson (1987), 227 Mont. 418, 739 P.2d 958, we
"clarified" the rule in Swanson concerning the accused's right to obtain an
independent
blood test as follows:
For the purpose of clarification of our rule in Swanson that one
accused of a crime involving intoxication is entitled to obtain a blood test,
it should be explained that the rule applies only when (1) the defendant has
timely claimed the right to a blood test, and (2) the officer or officers do
not unreasonably impede the defendant's right to obtain a blood test. If a
blood test of the defendant is unavailable through no unreasonable acts of
an officer or officers, the Swanson rule does not apply.
Peterson, 739 P.2d at 961 (emphasis added). We subsequently quoted the criteria
necessary for the Swanson rule to apply again in Clark, 762 P.2d at 856; Klinkhammer,
846 P.2d at 1011; and Pinson, 895 P.2d at 612.
Without disagreeing with the quoted material of Peterson previously set forth,
we
conclude that the second criterion, as written, is grammatically incorrect. As we
explained in Klinkhammer:
Both criteria must be satisfied in order to support an allegation of a
violation of a defendant's due process rights. The Swanson rule will not
apply if the defendant either fails to timely request the test, or the test is
unavailable through no unreasonable acts of law enforcement.
Klinkhammer, 846 P.2d at 1011. In other words, the rule in Swanson will apply only
if the defendant can establish that he made a timely request for an independent test
and
that a law enforcement officer unreasonably impeded his right to obtain the test.
However, as it is currently written, the second criterion sets forth that a
defendant must
establish that a law enforcement officer did not unreasonably impede his right to
obtain
an independent blood test to support an allegation that his due process rights were
violated. As such, the second criterion is inconsistent with the rule as set forth
in
Swanson. Therefore, for the second criterion to be grammatically correct, it should
read
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (13 of 18)4/17/2007 4:26:11 PM
96-050
"(2) the officer or officers do not unreasonably impede[d] the defendant's right to
obtain
a blood test."
Accordingly, to clarify our rule in Swanson that one accused of a crime
involving
intoxication is entitled to obtain an independent blood test, we hold that the rule
applies
only when (1) the defendant has timely claimed the right to an independent blood
test,
and (2) a law enforcement officer has unreasonably impeded the defendant's right to
obtain an independent blood test. Both criteria must be satisfied in order to
support an
allegation of a violation of a defendant's due process rights. The Swanson rule
will not
apply if the defendant either fails to timely request the independent blood test, or
the
independent blood test is unavailable through no unreasonable acts of law
enforcement.
Furthermore, after this appeal was submitted on briefs, we decided the case of
City of Kalispell v. Strand (Mont. No. 96-366, decided December 16, 1997). In Strand,
we reaffirmed the rule in Swanson and acknowledged that Swanson did not create for
law
enforcement officers an affirmative duty to assist the accused in obtaining
independent
evidence of sobriety, nor did that case go so far as to create a duty on the part of
the
police to inform the accused of the right to obtain an independent blood test.
Strand, slip
op. at 6. However, without disrupting the rule set forth in Swanson, we took the
next
step and held that "due 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." Strand, slip op. at 6. We
explained that
due to the evanescent character of blood alcohol evidence, the accused's right to
obtain
an independent blood test is rendered meaningless unless the accused is apprised of
this
right while the blood can still be analyzed. Strand, slip op. at 6-7. Therefore,
we held
that a law enforcement officer has an affirmative duty to inform the accused of the
right
to obtain an independent blood test at the time of arrest. Strand, slip op. at 7.
In Strand, the Kalispell police department had an express policy that law
enforcement officers should not read to the accused the implied consent advisory
form,
which explained the substance of Montana's implied consent statutes, unless or until
the
accused refused to submit to an officer-designated sobriety test. Strand, slip op.
at 4.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (14 of 18)4/17/2007 4:26:11 PM
96-050
Because Strand had submitted to the officer-designated breath test, he was never
read the
form, and, consequently, was never informed of his right to obtain an independent
blood
test. Strand, slip op. 4-5. Because Strand was not informed of his right to
obtain an
independent blood test, we concluded that his due process rights were violated.
Strand,
slip op. at 8.
In the case at bar, Sidmore does not argue that his due process rights to
obtain
exculpatory evidence were violated because he was never informed of his right to
obtain
an independent blood test, as was the case in Strand. Rather, Sidmore argues that
his due
process rights were violated because his arresting officer failed to take him to the
local
emergency room for an independent blood test after he requested the test.
Therefore, as
discussed previously, for Sidmore to support his allegation that his due process
rights
were violated, he must establish that his request for an independent blood test was
timely
and that the law enforcement officer unreasonably impeded his right to obtain the
blood
test. See Swanson, 722 P.2d at 1157-58.
First, we note that the State argues on appeal that Sidmore did not request an
independent blood test. However, contrary to this argument, we note in the District
Court record that the State clearly states in its June 3, 1996 Response to Sidmore's
first
motion to dismiss that "[d]uring the Defendant's DUI processing at the Lake County
Sheriff's Department the Defendant did request an independent blood test." Because
the
State's argument that Sidmore did not request an independent blood test is not only
not
supported by the trial court record but also is raised for the first time on appeal,
we will
not address it. See State v. Fuhrmann (1996), 278 Mont. 396, 404, 925 P.2d 1162,
1167
(citing State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016).
Consequently, we conclude that Sidmore made a timely request for an independent blood
test. Accordingly, we must only determine whether the State unreasonably impeded
Sidmore's right to obtain an independent blood test.
Sidmore in essence argues that his arresting officer had a duty to take him to
the
local emergency room for an independent blood test, and that by failing to do so, the
arresting officer violated his right to obtain exculpatory evidence. We disagree.
As we
explained in Clark, someone accused of criminal intoxication has a constitutional
right
to obtain exculpatory evidence, but such right is limited. Clark, 762 P.2d at 855.
That
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (15 of 18)4/17/2007 4:26:11 PM
96-050
is, law enforcement officers do not have an affirmative duty to assist the accused in
obtaining exculpatory evidence, rather law enforcement officers must only avoid
interfering with the accused's efforts to obtain an independent sobriety test.
Clark, 762
P.2d at 855-56 (citing Swanson, 722 P.2d at 1158).
In Clark, a police officer arrested Clark for driving under the influence.
During
the booking procedure, Clark interrupted the arresting officer's reading of the
State of
Montana Implied Consent Law Advisory Form to request a physician's care which the
arresting officer denied. Thereafter, Clark again interrupted the arresting officer
and
stated that he wanted "a physician and registered nurse at this moment to take a
sample
of my blood." The arresting officer replied "just a minute" and finished reading the
implied consent form. Clark then refused the breath test offered. After placing
Clark
in a holding cell, the arresting officer made five phone calls for Clark, including
three
to Clark's physician. During these telephone calls, Clark never requested that the
physician perform a blood test. Clark, 762 P.2d at 855.
We rejected Clark's argument that due to his request during the reading of the
implied consent law, the arresting officer was on notice that he was requesting an
independent blood test and that by not aiding him in obtaining the test his rights
were
violated. Rather, we concluded that Clark was given an opportunity to obtain an
independent blood test when the officer made phone calls on Clark's behalf to Clark's
physician but that Clark failed to take the opportunity to set up an independent
blood test.
Therefore, we held that Clark's due process rights had not been violated. Clark, 762
P.2d at 856.
Here, after requesting an independent blood test, Sidmore's arresting officer
advised him that after processing, he would give Sidmore a telephone book to locate
someone to perform a blood test. Furthermore, Sidmore's arresting officer told
Sidmore
that once Sidmore located someone to perform the test, he would take Sidmore to have
the test performed. Thereafter, he placed Sidmore in a booking cell which contained
a
telephone and Sidmore was given a telephone book. Sidmore remained in the booking
cell for 30-45 minutes while his arresting officer was no more than a few feet away,
separated only by bars and an open doorway. However, despite having access to a
telephone and a telephone book during this period of time, Sidmore, like Clark,
failed to
take the opportunity to make arrangements for an independent blood test.
As we explained in Clark, Sidmore's request for an independent blood test did
not
create a duty on the part of his arresting officer to take him to the local hospital
emergency room for a blood test to be performed. See Clark, 762 P.2d at 855-56.
Rather, Sidmore's arresting officer was only required to avoid interfering with
Sidmore's
efforts to obtain the independent blood test. Clark, 762 P.2d at 855-56. Here,
Sidmore's
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (16 of 18)4/17/2007 4:26:11 PM
96-050
arresting officer did not interfere with Sidmore's efforts to obtain an independent
blood
test. Instead, after Sidmore requested an independent blood test, Sidmore's
arresting
officer provided him with the opportunity to obtain an independent blood test by
giving
him access to a telephone and a telephone book and by informing him that
transportation
would be provided to the test once Sidmore made arrangements. Despite this
opportunity, Sidmore failed to make arrangements for the independent blood test.
Therefore, while Sidmore made a timely request for an independent blood test,
the
unavailability of the test was not caused by the unreasonable acts of law
enforcement, but
rather was caused by Sidmore's own failure to act after he requested the independent
blood test and was given the opportunity to arrange the test. As such, we conclude
that
Sidmore's due process rights were not violated. Accordingly, we hold that the
District
Court did not err in denying Sidmore's motion to dismiss on this basis.
5. Did the District Court err by either instructing the jury that Sidmore was
charged with a felony and as to his three prior convictions and requiring the State
to present evidence of such or avoiding that by requiring him to stipulate prior to
trial?
Sidmore filed a pretrial motion in limine to exclude introduction of evidence
of his
prior convictions and that his current charge was a felony. Prior to trial, the
District
Court, for the purposes of establishing jurisdiction, asked the parties to stipulate
that the
requisite number of convictions existed for Sidmore's current DUI offense to be
charged
as a felony, fourth offense, in the District Court. Sidmore's counsel agreed to the
stipulation, reserving the right to appeal his three motions to dismiss which the
District
Court had denied. Now, on appeal, Sidmore challenges this stipulation. However,
because Sidmore raises this issue for the first time on appeal, we will not address
it. See
State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491.
In sum, we conclude that Sidmore's due process right to obtain an independent
blood test was not violated, and, therefore, we hold that the District Court did not
err in
denying Sidmore's motion to dismiss on this basis. However, we conclude that both
Sidmore's 1990 BAC conviction and his 1988 Idaho DUI conviction should have been
expunged as a matter of law from his Montana record. Consequently, we hold that the
District Court erred by denying Sidmore's motion to dismiss Count I of the
Information
for lack of original jurisdiction. Accordingly, we reverse the District Court and
order
it to dismiss the felony charges against Sidmore.
Reversed.
/S/ JAMES C. NELSON
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (17 of 18)4/17/2007 4:26:11 PM
96-050
We Concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-050%20(12-18-97)%20Opinion.htm (18 of 18)4/17/2007 4:26:11 PM