No. 05-333
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 77N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RICKY DEAN ZANDER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 03-298
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Clinton H. Kammerer; Kammerer Law Offices,
Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Karen Townsend,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: March 14, 2006
Decided: April 18, 2006
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court 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 Ricky Dean Zander appeals from the judgment and sentence entered by the Fourth
Judicial District Court, Missoula County, upon his guilty plea to the felony offense of
operating a motor vehicle while under the influence of alcohol or drugs (DUI). Before
Zander pled guilty, the District Court denied Zander’s pretrial motions to dismiss the charges
and to suppress evidence. The court concluded the arresting officer had particularized
suspicion to approach Zander based on information from a 911 dispatcher that a citizen
reported a drunk driver had caused an accident in a parking lot and his confirmation of that
report on the scene with the driver of the struck vehicle. The court also determined the
officer had probable cause to arrest Zander based on the reports of drunk driving by the 911
caller and the driver of the struck vehicle, the officer’s observations of Zander, Zander’s
performance on standardized field sobriety maneuvers, Zander’s admission to drinking and
the result of his portable breath test. Moreover, the court determined Zander received
adequate Krause and Miranda advisories.
¶3 In addition, the District Court determined that a “no driving” restriction imposed by
the Justice Court and retained by the District Court as a condition of pretrial release did not
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render the implied consent advisories given to Zander invalid, did not constitute grounds for
concluding the State had waived prosecution or was estopped from prosecuting Zander, and
was not “punitive” for purposes of double jeopardy analysis. In determining the “no driving”
condition was not punitive, the court reasoned, in part, that the condition was authorized by
§ 46-9-108(1), MCA, because it was imposed to protect the public in light of Zander’s three
prior DUI convictions.
¶4 On appeal, Zander asserts certain witnesses lacked credibility because, among other
things, their testimony regarding particularized suspicion went beyond their statements in
prior affidavits and the officer’s report. Related to the assertion that the officer lacked
particularized suspicion of criminal activity, Zander argues he is entitled to the
confidentiality protections for accident reports set forth in § 61-7-114, MCA. He also
contends the evidence did not establish the Krause advisory was properly administered. In
addition, he posits that any information—which he does not specify—gathered between his
arrest and the reading of his Miranda rights at the detention center should be suppressed.
Moreover, he contends the “no driving” pretrial release condition rendered the implied
consent advisory invalid or, alternatively, constituted waiver or estoppel of the State’s further
prosecution of him. He also argues his prosecution after the imposition of the “no driving”
condition—which he characterizes as unusual and punitive—is a violation of constitutional
double jeopardy protections, the Canons of Judicial Ethics and certain statutory provisions.
¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
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opinions. It is manifest on the face of the briefs and the record that Zander’s appeal is
without merit because there clearly is sufficient evidence to support the District Court’s
findings of fact and the legal issues are clearly controlled by settled Montana law that the
District Court correctly interpreted.
¶6 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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