97-418
No. 96-418
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and
Appellant,
vs.
RAY LEWIS
BOWLES,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Wm. Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Tara DePuy, Park County Attorney, Livingston, Montana; Joseph P.
Mazurek,Attorney General, John Paulson, Assistant Attorney General,
Helena, Montana
For Respondent:
Jennifer Wendt Bordy, Bozeman, Montana
Submitted on Briefs: March 20, 1997
Decided: September 22, 1997
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the Sixth Judicial District Court, Park County. On June
11, 1996, the District Court entered an order expunging a 1977 DUI conviction from
Defendant Bowles' record and dismissing a fourth offense DUI felony charge against
him.
From this order, the State appeals and Defendant Bowles cross appeals. We affirm.
We address the following issue raised on appeal:
1. Did the District Court err in concluding that Defendant Bowles' 1977 DUI
conviction may not be used to support the charge of felony fourth-offense DUI?
Defendant Bowles also raises two issues by way of cross appeal:
2. Was proper judicial determination of probable cause made by a neutral
magistrate within 48 hours of Defendant Bowles' arrest?
3. May a justice court require conditions of bail to be performed prior to
release?
Because we affirm the District Court's order dismissing the DUI felony charge
against Bowles in Issue 1, we decline to address the merits of Issues 2 or 3 at this
time.
FACTUAL AND PROCEDURAL BACKGROUND
On April 20, 1996, Defendant Ray Lewis Bowles (Bowles) was arrested for
driving under the influence, driving without a valid license, and driving without
mandatory insurance coverage. While Bowles' driving record from the Montana
Department of Justice contained only two prior DUI convictions (December 1995 and
March 1996), Bowles' driving record filed with the Park County Sheriff's Office
contained a third DUI conviction from September 1977. Based upon Bowles' Park
County driving record, an Information was filed on April 24, 1996, in the Sixth
Judicial
District Court, Park County, charging Bowles with driving a motor vehicle while under
the influence of alcohol (DUI), fourth offense, a felony in violation of 61-8-401,
MCA.
On April 29, 1996, Bowles filed a motion to dismiss the felony DUI charge. On June
11, 1996, the District Court granted Bowles' motion to dismiss, without prejudice to
file
a misdemeanor charge, concluding that because Bowles' 1977 DUI conviction should
have been expunged in 1982 under 61-8-714(5), MCA (1981), it could not now be
counted to support a fourth offense felony DUI charge. From this order, the State
appeals and Bowles cross appeals. We affirm.
STANDARD OF REVIEW
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), 930 P.2d 31, 33,
53
St.Rep. 1340, 1341 (citations omitted). Because the parties have raised no factual
disputes, we must only determine whether the District Court correctly interpreted
the law.
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Based upon our decision in Brander, we hold that the District Court correctly
concluded
that Bowles' 1977 DUI conviction should have been expunged in 1982 pursuant to 61-
8-714(5), MCA (1981), and, therefore, the District Court properly dismissed the
charge
of felony DUI, fourth offense.
DISCUSSION
1. Did the District Court err in concluding that Bowles' 1977 DUI
conviction may not be used to support the charge of felony fourth-offense DUI?
Section 61-8-714(5), MCA (1981), provided in part:
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.]
In 1989 the Montana Legislature amended 61-8-714(5), MCA, to provide that if, after
five years, a defendant had no additional DUI convictions, the defendant's record
would
no longer be expunged, but rather the records and data relating to the prior DUI
conviction would become confidential criminal justice information. Brander, 930 P.2d
at 33-34 (citing 2, Ch. 476, L. 1989).
In 1995, the Montana Legislature amended 61-8-714, MCA, to include a felony
sanction for repetitive DUI offenders, 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 $1,000 or
more than $10,000. [Emphasis added.]
In conjunction with this new subsection, the Legislature amended 61-8-714(6),
MCA, (formerly subsection (5)), to provide in pertinent part:
(6) 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. [First
emphasis indicates newly added language; second emphasis added.]
In its June 11, 1996 Order, the District Court determined that under 61-8-714
(5),
MCA (1981), Bowles' 1977 DUI conviction was required to be expunged from his record
in 1982. The District Court explained that this expungement provision required "a
comprehensive destruction of all records or identifiable descriptors of the
offense."
Further, the District Court distinguished State v. Lorash (1989), 238 Mont. 345, 777
P.2d 884, explaining that in Lorash we held that defendant could not challenge the
constitutionality of 46-18-201, MCA, a statute prohibiting deferment of a
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subsequent
felony conviction, because the defendant had failed to affirmatively request
expungement
as required by 46-18-204, MCA (1987), and that expungement provision was no longer
available to the defendant because it had been repealed before the defendant was
sentenced for his present offense. The District Court explained that, here, unlike
in
Lorash, the expungement provision of 61-8-714(5), MCA (1981), was self-executing,
and, therefore, expungement of Bowles' 1977 conviction from his record was required
as a matter of course in 1982, despite the provision's subsequent repeal in 1989.
The
District Court, therefore, concluded that the State could not now under 61-8-714
(6),
MCA (1995), use records maintained in violation of 61-8-714(5), MCA (1981), to
support the felony DUI charge against Bowles. However, the District Court rejected
Bowles' ex post facto argument because Bowles was charged in 1996 with felony DUI,
fourth offense, under 61-8-714(6), MCA (1995), a statute in effect since October 1,
1995. Nonetheless, the District Court held that Bowles' 1977 DUI conviction could
not
be counted to support the current charge of felony DUI, fourth offense, and any other
result would violate Bowles' rights to due process and equal protection.
Consequently,
the District Court granted Bowles' motion to dismiss.
The State argues that the District Court erred when it granted Bowles' motion to
dismiss. The State asserts that the District Court too narrowly interpreted Lorash
when
it distinguished Lorash from the present case on the basis that the expungement
provision
at issue in Lorash required a defendant to affirmatively request expungement whereas
the
DUI expungement provision at issue here was self-executing. The State contends that
the
decision in Lorash was not based upon the defendant's failure to invoke the
expungement
procedure, but rather was based upon the unavailability of the procedure due to its
repeal.
Therefore, the State maintains that, just as in Lorash, Bowles is not entitled to
have his
1977 DUI conviction expunged under 61-8-714(5), MCA (1981), because this
expungement provision was repealed in 1989, and, therefore, is currently not
available
to him. Accordingly, the State asserts that Bowles' 1977 DUI conviction may
presently
be counted for purposes of charging him with felony DUI, fourth offense.
Additionally, the State argues that it is unclear that 61-8-714(5), MCA
(1981),
was intended to apply to local judicial or law enforcement records, such as those
maintained by Park County. The State asserts that unlike 46-18-204, MCA (1987),
the
statute at issue in Lorash, 61-8-714(5), MCA (1981), did not expressly direct the
Montana Department of Justice or any state or local official to expunge Bowles'
record.
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Also, in contrast to 46-18-204, MCA (1987), the State contends that 61-8-714(5),
MCA (1981), did not provide for dismissal of the underlying charge and that the
legislative history concerning the repeal of this expungement provision in 1989
focused
on the driving records of DUI defendants rather than judicial or law enforcement
records.
Relying on Lancaster v. Dept. of Justice (1985), 218 Mont. 97, 706 P.2d 126, the
State
asserts that the Montana Department of Justice, Motor Vehicle Division, has a duty,
independent of any judicial or law enforcement record-keeping duties, to maintain
records
of the convictions of licensees pursuant to 61-11-102(2), MCA. Therefore, the
State
contends that if the application of the expungement provision of 61-8-714(5), MCA
(1981), was intended to be limited to a DUI offender's driving record, the continued
maintenance of local judicial and law enforcement records would not be precluded.
Thus,
the State argues that Bowles' 1977 DUI conviction recorded in the Park County
Sheriff's
Office may be used to support the felony DUI charge against Bowles.
Finally, in its opening brief, the State argues that expungement is a procedural
remedy, derived wholly from the statute authorizing it and may be extinguished by its
repeal. However, in light of our decision in Brander, the State retracts this
argument
in its reply brief. Specifically, the State now argues that in Brander we implicitly
concluded that the expungement provision of 61-8-714(5), MCA (1981), created a
vested substantive right when we determined that the defendant was entitled to
expungement of his 1986 DUI conviction in 1991, two years after the expungement
provision of 61-8-714(5), MCA (1981), was repealed. Consequently, the State
asserts
that because this provision created a vested substantive right it may only be applied
prospectively; that is, the expungement provision only applies to "prior" DUI
convictions
which occurred after October 1, 1981, the effective date of 61-8-714(5), MCA
(1981).
Therefore, the State contends that because Bowles' 1977 DUI conviction occurred
before
this date, he is not entitled to the expungement of his 1977 DUI conviction.
Accordingly,
based on the foregoing, the State argues that Bowles' 1977 DUI conviction may be
counted to support the felony DUI charge against him and that the District Court
erred
in granting Bowles' motion to dismiss.
Bowles responds that the District Court properly concluded that his 1977 DUI
conviction could not be used to enhance his DUI charge from a misdemeanor to a
felony.
Bowles agrees with the District Court that, unlike the statute at issue in Lorash,
the
expungement provision of 61-8-714(5), MCA (1981), was self-executing. Therefore,
relying on Brander, Bowles contends that under 61-8-714(5), MCA (1981), his 1977
DUI conviction should have been expunged in 1982, as a matter of course, because he
did not receive another DUI conviction during that five year period. Furthermore,
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contrary to the State's argument, Bowles asserts that expungement of his 1977 DUI
conviction should have occurred at all levels of authority including the records
kept at the
Park County Sheriff's Office. Accordingly, Bowles argues that the District Court
properly granted his motion to dismiss. We agree.
First, contrary to the State's argument, we conclude that the District Court
correctly distinguished Lorash from the case at bar. In Lorash, the district court
convicted the defendant upon a guilty plea of criminal mischief for hitting and
kicking
another person's car and imposed a two-year suspended sentence pursuant to 46-18-
201(6), MCA. The defendant on appeal, argued that 46-18-201(6), MCA, violated his
right to due process under Article II, Section 17 of the Montana Constitution by
prohibiting deferral of his current sentence because he had previously served a
deferred
sentence for a prior felony conviction. In concluding that the defendant's
constitutional
challenge to 46-18-201(6), MCA, was moot, we pointed out that the expungement
provision of 46-18-204, MCA (1987), had been repealed in 1989 and was no longer
available to the defendant who had failed to affirmatively request expungement, as
required by 46-18-204, MCA (1987), during the time the expungement provision was
in effect.
Section 46-18-204, MCA (1985), provided that if a defendant moved the district
court to dismiss the charges against him after the termination of the time period of
a
deferred sentence, the district court was permitted to do so. Before Lorash was
sentenced
for criminal mischief, 46-18-204, MCA (1985), was amended in 1987 to permit a
district court, upon dismissal of the charges, to order that the department of
justice
expunge the defendant's record. See 46-18-204, MCA (1987). This amendment was
subsequently repealed in 1989 and replaced with instructions for a district court,
upon
dismissal of the charges, to order the department of justice to classify all records
and data
relating to the charge as confidential criminal justice information rather than to
expunge
them. See 46-18-204, MCA (1989).
We note that under 46-18-204, MCA, including its amendments in 1987 and
1989, it was critical that a defendant make a motion for his prior conviction to be
dismissed and expunged. Lorash admitted at his sentencing hearing that he had not
attempted to have his 1973 conviction dismissed or expunged pursuant to 46-18-204,
MCA. Lorash, 777 P.2d at 885-86. Consequently, because Lorash never made this
motion, his 1973 conviction was never dismissed and he lost the opportunity to
request
expungement of his 1973 conviction when the expungement provision was repealed in
1989. Here, however, 61-8-714(5), MCA (1981), did not require any affirmative
action on a defendant's part, but rather was self-executing, and, as such,
expungement
of a prior DUI conviction was required as a matter of law after the lapse of a five-
year
period without another DUI conviction. Therefore, unlike in Lorash, the expungement
provision of 61-8-714(5), MCA (1981), required as a matter of law that Bowles' 1977
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DUI conviction be expunged.
Second, and again contrary to the State's argument, we conclude that the
expungement provision of 61-8-714(5), MCA (1981), not only applied to a defendant's
driving record but also to local judicial and law enforcement records as well. In
Brander,
we explained that the plain and ordinary meaning of "expunge" is "[t]o destroy; blot
out;
obliterate; erase; efface designedly; strike out wholly. The act of physically
destroying
information--including criminal records--in files, computers, or other
depositories."
Brander, 930 P.2d at 36 (citation omitted). Therefore, we concluded that to expunge
an
offense from a defendant's record was to destroy all traces of the criminal process
relating to the offense. Brander, 930 P.2d at 36 (citations omitted). We further
distinguished the effect of this mandate to expunge an offense from a defendant's
record
as required by 61-8-714(5), MCA (1981), from instructions to classify a conviction
in
a defendant's record as confidential criminal justice information as required by
61-8-
714(5), MCA (1989). We explained that "[u]nlike expunged records which are
completely destroyed, classification of records as confidential criminal justice
information
does not prevent a court from reviewing those records, but merely restricts the
dissemination of those records to criminal justice agencies and others authorized by
law."
Brander, 930 P.2d at 36 (citations omitted). Consequently, because the expungement
provision of 61-8-714(5), MCA (1981), required that all traces of the criminal
process
relating to the prior offense should be destroyed, we agree with the District Court
that
the record of Bowles' 1977 DUI conviction located in the Park County Sheriff's Office
was maintained in violation of 61-8-714(5), MCA (1981), and, therefore, could not
be
counted for the purposes of currently charging Bowles with felony DUI, fourth
offense,
pursuant to 61-8-714(6), MCA (1995). Expungement of a criminal record requires the
physical destruction of the record by whomever and in whatever depository the record
is maintained. See Brander, 930 P.2d at 36.
Finally, as to the State's argument that we implicitly concluded in Brander
that the
expungement provision of 61-8-714(5), MCA (1981), created a vested substantive
right,
and, therefore, could only be applied prospectively to "prior" convictions occurring
after
October 1, 1981, the statute's effective date, we rejected this argument in State v.
Reams
(Mont. No. 96-605, decided September 22, 1997).
Based on the foregoing, we hold that the District Court correctly concluded that
Bowles' 1977 DUI conviction should have been expunged in 1982 pursuant to 61-8-
714(5), MCA (1981), and, therefore, could not be used to support the charge of felony
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fourth-offense DUI. Accordingly, we affirm the District Court's June 11, 1996 Order
granting Bowles' motion to dismiss.
2. Was proper judicial determination of probable cause made by a neutral
magistrate within 48 hours of Bowles' arrest?
On cross appeal, Bowles argues that a proper judicial determination of probable
cause was never made by a neutral magistrate within 48 hours of Bowles' arrest, and,
therefore, the District Court's Order granting Bowles' motion to dismiss, without
prejudice to file a misdemeanor charge should be changed to a dismissal with
prejudice.
Bowles asserts that although the District Court did not address this issue, this
Court
should, in the interest of judicial economy. The State responds that we should not
address this issue which is presented as a cross appeal in the State's interlocutory
appeal
because Bowles has no right to appeal prior to a final judgment of conviction and
sentence.
We agree with the State and decline to address the merits of this issue at this
time
because the District Court has not addressed it and because Bowles has not yet been
charged with a misdemeanor. "This Court does not issue advisory opinions." State ex
rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997 (citation
omitted). Furthermore, if Bowles is charged with a misdemeanor, the District Court
will
then have the opportunity to rule on this issue in light of County of Riverside v.
McLaughlin (1991), 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49; Gerstein v. Pugh
(1975), 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Whiteley v. Warden of Wyoming
State Penitentiary (1971), 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; and Sacco v.
High County Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d 411.
3. May a justice court require conditions of bail to be performed prior to
release?
Bowles also argues on cross appeal that the justice court erred in requiring
Bowles
to participate in an alcohol evaluation as a condition of his release from jail.
The State
again responds that we should not address this issue because Bowles has no right to
cross
appeal in the State's interlocutory appeal. Because we affirm the District Court's
dismissal of Bowles' felony DUI charge in Issue 1, we decline to address the merits
of
this issue, at this time.
Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
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