DA 08-0032
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 432N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DENNIS McDANIEL,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Granite, Cause No. DC 07-08
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Lisa S. Korchinski, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; Tammy K Plubell,
Assistant Attorney General; Helena, Montana
Submitted on Briefs: November 13, 2008
Decided: December 16, 2008
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Dennis McDaniel (“McDaniel”) appeals from the final judgment and sentencing
order entered in the Third Judicial District Court, Granite County on December 20, 2007.
We affirm.
¶3 On Friday April 20, 2007, Officer Tom Gill of the Montana Highway Patrol
(“Officer Gill”) responded to a report of a truck parked on the shoulder of Interstate 90 in
Granite County. When Officer Gill approached the vehicle, he observed an individual,
later identified as McDaniel, apparently asleep on the steering wheel with a beer bottle
between his legs. When Officer Gill asked McDaniel whether he was over the legal limit
for operating a motor vehicle, McDaniel stated, “Obviously if I was pulled over on the
side of the road.” Officer Gill also discovered that McDaniel was operating the vehicle
under a probationary license from the State of Washington, which included a condition
for the use of an ignition interlock device. Further, McDaniel stated that he would admit
to being under the influence but would not consent to a Preliminary Breath Test.
Thereafter, at approximately 5:30 p.m., Officer Gill arrested and ticketed McDaniel for
DUI in violation of § 61-8-401, MCA, and for failure to display proof of insurance under
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§ 61-6-302(2), MCA. At the Sheriff’s Office following his arrest, McDaniel asked
Officer Gill to ticket him for a first DUI offense, instead of a fourth DUI offense.
¶4 On Monday, April 23, 2007, the first business day following his arrest, McDaniel
made an initial appearance in Granite County Justice Court before Acting Justice of the
Peace Larry Veis (“Veis”), who was substituting for Judge Samuel Brown (“Judge
Brown”). Veis advised McDaniel of his rights and set bail at $7,500. McDaniel was also
appointed counsel from the State Public Defender’s Office. On the initial appearance
form, Veis wrote, “See Tickets” next to the spaces reserved for denoting the charges and
whether such charges were misdemeanors or felonies. However, the appointment of
counsel form stated the charges as DUI, first offense, failure to carry proof or exhibit
insurance in a vehicle, unlawful possession of an open alcoholic beverage container in a
motor vehicle, and operating a vehicle without an interlock device—all misdemeanor
charges. When Judge Brown returned a week after McDaniel’s initial appearance, he
wrote “fourth offense” on a copy of the ticket, which was attached to the appointment of
counsel form.
¶5 Following McDaniel’s initial appearance in Justice Court, the State determined
that McDaniel had three prior out-of-state convictions for DUI. As a result, on July 10,
2007, McDaniel was charged in District Court with felony DUI, failure to display proof
of insurance, open container, and operating a vehicle without an interlock device. Nine
days later, on July 19, 2007, McDaniel made an initial appearance on these charges in
District Court. Because McDaniel was unable to post the $7,500 bail following his initial
appearance in Justice Court, he remained incarcerated throughout the proceedings.
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¶6 In late August, McDaniel filed a motion to suppress evidence of his prior DUI
convictions because of an excessive delay between his arrest and initial appearance in
District Court. McDaniel also moved to dismiss the felony DUI charge, reasoning that
the State could not support the felony DUI charge without evidence of his prior DUI
convictions. In support of his argument, McDaniel claimed he was charged with felony
DUI from the beginning of the proceedings in Justice Court, and that the 91 days between
his arrest on April 20, 2007, and his initial appearance in District Court on July 19, 2007,
amounted to an excessive delay. The District Court denied both motions and McDaniel
plead guilty to a fourth offense of DUI, a felony under § 61-8-460, MCA. Pursuant to a
plea agreement, the State dropped the additional charges and McDaniel reserved the right
to appeal the District Court’s denial of the motions to suppress and to dismiss. McDaniel
was sentenced to the Department of Corrections for 13 months with the possibility of
serving the remainder of that time on probation if he successfully completed a residential
treatment program, and to three years suspended in the Montana State Prison.
¶7 The sole issue on appeal is whether the District Court erred by denying
McDaniel’s motions to suppress evidence of his prior DUI convictions and to dismiss the
felony DUI charge.
¶8 The controlling statute in this case, § 46-7-101(1), MCA, provides that “[a] person
arrested, whether with or without a warrant, must be taken without unnecessary delay
before the nearest and most accessible judge for an initial appearance.” McDaniel claims
that § 46-7-101(1), MCA, was violated because of an “excessive delay of ninety one days
between [his] arrest and initial appearance in District Court.” However, it is undisputed
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that McDaniel did have a timely initial appearance in Justice Court. McDaniel cannot
ignore that he was arrested on Friday, April 20, 2007, and brought promptly “before the
nearest and most accessible judge for an initial appearance” on Monday April 23, 2007—
the first business day following his arrest. Importantly, McDaniel does not claim that
either Veis or Judge Brown failed to meet the statutory obligations for an initial
appearance under § 46-7-102, MCA. Therefore, we conclude that the District Court did
not err by denying McDaniel’s motions to suppress and to dismiss. There was no
unnecessary delay between McDaniel’s arrest and initial appearance under § 46-7-101(1),
MCA. It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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STATE v. McDANIEL
Combined Opinion