State v. Blue

September 15 2009

DA 09-0034

IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 304

STATE OF MONTANA,

Plaintiff and Appellee,

v.

CHARLES DUANE BLUE,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 07-100
Honorable Robert L. Deschamps III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michael B. Grayson; Grayson Law Firm, Anaconda, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana

Fred Van Valkenburg, Missoula County Attorney; Shawn P. Thomas,
Deputy County Attorney, Missoula, Montana

Submitted on Briefs: August 12, 2009

Decided: September 15, 2009

Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Charles Duane Blue appeals from a sentence imposed after his guilty plea to a

fourth offense of driving under the influence of alcohol, §§ 61-8-401 and -731, MCA. In

particular, Blue appeals from the District Court’s Opinion and Order of August 21, 2008,

denying his motion to dismiss. We affirm.

¶2 Blue presents issues for review that we restate as follows:

¶3 Issue One: Whether Blue was properly charged and sentenced for a fourth DUI

offense.

¶4 Issue Two: Whether § 61-8-734(1)(b), MCA, violates the right to equal protection

guaranteed by the Montana Constitution.

¶5 Issue Three: Whether § 61-8-734(1)(b), MCA, violates Article II, § 28(1) of the

Montana Constitution.

PROCEDURAL AND FACTUAL BACKGROUND

¶6 On March 5, 2007, Blue drove his truck off of Mullen Road in Missoula County,

through a fence, across a yard and into a power pole. When the investigating Highway

Patrol officer arrived, he found Blue unsteady on his feet, smelling of alcohol, and with

bloodshot eyes and a urine stain on the crotch of his trousers. Blue performed poorly on

field sobriety tests and a breath sample registered a blood alcohol concentration of .158.

¶7 Blue was charged with DUI as a result of the crash; it was a felony based upon his

three prior convictions for DUI. He moved to dismiss based upon arguments similar to

those raised in this appeal, and the District Court by Opinion and Order filed August 21,

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2008, denied the motion. Blue then pled guilty to the DUI charge, reserving his right to

appeal the denial of his motion to dismiss. The District Court sentenced Blue to a 13-

month commitment to the Department of Corrections, for placement in the State’s

“WATCh” residential alcohol treatment program. The sentence further subjected Blue to

a suspended 3-year commitment to the Montana State Prison and a fine.

¶8 Prior to the 2007 incident, Blue had three convictions for DUI. In 1995 he was

charged with two DUI offenses on the same night. He was stopped for DUI, arrested,

and released when he posted bond. He returned to his vehicle and when he tried to drive

it was arrested again for DUI. He pled guilty to the two DUI offenses and received

concurrent sentences of one day in jail for each of the two offenses. In 2000 Blue was

charged with another DUI offense that the charging documents called “DUI (3rd).” As

part of a plea bargain, the prosecutor filed a motion for an order “amending the charge

from DUI (3rd) to DUI (2nd) . . . .” The District Court granted the motion, and Blue pled

guilty to the charge and was sentenced in 2001.

STANDARD OF REVIEW

¶9 Absent a factual dispute, a decision on a motion to dismiss is an issue of law

reviewed de novo to determine whether it is correct. State v. Goebel, 2001 MT 73, ¶ 10,

305 Mont. 53, 31 P.3d 335. This Court’s review of issues of constitutional law is

plenary. State v. Aceto, 2004 MT 247, ¶ 15, 323 Mont. 24, 100 P.3d 629.

DISCUSSION

¶10 Issue One: Whether Blue was properly charged and sentenced for a fourth DUI

offense. It is unlawful in Montana for a person under the influence of alcohol or drugs to

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be in actual physical control of a vehicle. Section 61-8-401, MCA. Section 61-8-714,

MCA, provides separate misdemeanors penalties for first, second or third convictions for

violations of § 61-8-401, MCA. After “any combination of three or more prior [DUI]

convictions” subsequent DUI convictions are felonies punishable as provided in § 61-8-

731, MCA. For convictions one through three, a person is deemed to have a prior DUI

conviction if less than five years have elapsed since the last offense. After three DUI

convictions, “all previous convictions must be used for sentencing purposes” regardless

of when they occurred. Section 61-8-734(1)(b), MCA.

¶11 Blue contends that since the charge against him in 2001 was amended to “DUI

(2nd)” instead of the original title of “DUI (3rd)” he could not have been sentenced for a

fourth offense of DUI in 2007. This argument is contrary to the express wording of the

applicable statutes. Section 61-8-734(1)(b), MCA, provides that for determining whether

a person has committed a fourth DUI offense, “all previous convictions must be used.”

Section 61-8-731(1), MCA, provides that a fourth DUI offense occurs after “any

combination of three or more prior convictions” for DUI. (Emphasis added.) These

statutes count any prior DUI convictions, and Blue clearly had three prior DUI

convictions when he was charged with DUI in 2007. Under the applicable statutes, he

was properly sentenced as a fourth DUI offender.

¶12 Blue argues that the State was estopped from charging him with a fourth offense

of DUI because of the amendment of his third conviction to carry the title “DUI (2nd)” as

part of the plea bargain in that case. The State’s 2001 motion to amend the title of the

charge says only that “the amended charge will conform to the evidence that the State

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will present at trial.” The District Court’s order granting the motion says nothing of

substance and the plea bargain document itself is likewise silent on this point. The

District Court’s sentencing document, dated April 12, 2001, is on a form ambiguously

titled “DUI Second or Third Offense.” Nothing in the record indicates that the State made

any commitment to Blue that he could subsequently commit DUI and have the offense

counted for something other than what it was.

¶13 In summary, the record does not support an argument that the State was estopped

from changing Blue with a fourth DUI offense when he committed a fourth DUI offense,

as required by §§ 61-8-731 and -734, MCA. The State cannot be estopped by a

commitment or agreement it never made. Blue cannot, as a matter of public policy, claim

a right based on estoppel to re-offend and receive a lesser penalty than the law provides.

State v. Darrah, 2009 MT 96, ¶ 15, 350 Mont. 70, 205 P.3d 792. Blue got the benefit of

the plea bargain that he agreed to in 2001. He was exposed to a lesser penalty at that time

because he was sentenced as a second-time DUI offender by agreement with the State

and that matter is concluded.

¶14 Moreover, a title placed on the charge is not material to counting the number of

offenses under the statutory scheme for DUI sentencing. That scheme, noted above,

counts each conviction without regard to what the charge or conviction was called at the

time. A “conviction” for purposes of counting DUI offenses includes “conviction for a

violation of a similar statute or regulation in another state or on a federally recognized

Indian reservation, or a forfeiture of bail or collateral . . . . ” Section 61-8-734(1), MCA.

The statute clearly requires assessment by the number of convictions for the same type of

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offense, not by what those offenses may be called. All DUI offenses under Montana law

are a violation of § 61-8-401, MCA, and designation or proof of a particular offense as a

first, second or subsequent DUI is not an element of the crime. State v. Sanders, 208

Mont. 283, 291, 676 P.2d 1312, 1316 (1984).

¶15 Blue was properly charged and sentenced for a fourth conviction for violating §

61-8-401, MCA.

¶16 Issue Two: Whether § 61-8-734(1)(b), MCA, violates the right to equal protection

guaranteed by the Montana Constitution. There are statutory differences between the

punishments that can be imposed for a person’s first through third DUI offenses. As long

as less than five years have elapsed between offenses, the possible punishments for those

first three successive convictions are more severe. If more than five years elapses

between one offense and the next, then the possible punishments do not increase. Once a

person is convicted of a fourth DUI offense, the five-year look-back no longer applies

and all DUI offenses are counted to determine whether the offense is a felony and which

statutory punishment applies.

¶17 Blue contends that this system deprives him of equal protection. Montana’s equal

protection clause is in Article II, § 4 of the Montana Constitution, providing that no

person “shall be denied the equal protection of the laws.”

¶18 Constitutional guarantees of equal protection allow wide discretion in the adoption

of criminal laws, and prohibit only laws that are arbitrary because they make

classifications without any reasonable basis. A classification need not be made with

mathematical precision and is not invalid because it results in some inequality. Sanders,

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208 Mont. at 288, 676 P.2d at 1315. The first step in an equal protection analysis is to

identify the classes established by the statute. Ressor v. Mont. State Fund, 2004 MT 370,

¶ 10, 325 Mont. 1, 103 P.3d 1019. Blue contends that there are two classes in the DUI

statutes—persons with three or fewer convictions and persons with more than three

convictions. Accepting for purposes of discussion that the statute establishes these

classes, the next step in an equal protection analysis is to identify the appropriate level of

scrutiny to apply to the legislation.

¶19 A due process analysis applies three differing levels of scrutiny to a statutory

classification, depending upon the nature of the interest involved. State v. Strong, 2009

MT 65, ¶ 16, 349 Mont. 417, 203 P.3d 848. When a classification affects a suspect class

of persons or affects a fundamental right, then the State bears the burden to show that the

statute is narrowly drawn to serve a compelling governmental interest. When other less

fundamental rights are involved, the statute is reviewed to determine whether it is

reasonable or, whether it has a rational basis. Reesor, ¶ 13

¶20 Blue contends that the DUI statutes discriminate on the basis of age. 1 He bases

this upon the contention that it takes longer for a person to accumulate four DUI

convictions, so that persons who do so are likely to be older than persons just starting out

on their DUI conviction careers. While this may be true in some cases, the age at which a

person is convicted of a fourth DUI offense is determined by the offender. If the offender

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Blue attached factual materials to his brief on appeal in support of the age argument,
and he referred to these materials in his argument. These materials were not part of the
record below. It is improper for counsel to inject materials outside the record, and it is in
violation of the Rules of Appellate Procedure, 8(1). This is not countenanced by the
Court and the attached materials were not used in the preparation of this opinion.
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offends early and often, he may be quite young when the fourth conviction comes around.

Blue, for example, managed to acquire two DUI charges in the same day for his first and

second convictions. It is the offender who determines his age at the time of his fourth

DUI conviction, not the statutes. The DUI statutes do not discriminate on the basis of age

either facially or in practice. Moreover, even when a criminal statute makes sentencing

classifications based upon age, it is not a “suspect classification” that requires application

of strict scrutiny in the context of due process. Strong, ¶ 18. Therefore, there is no

reason to require the State to show a compelling interest in the classifications in the DUI

statutes.

¶21 Blue next contends that even if the compelling State interest test is not applied,

there is no rational basis for the differences in sentencing treatment among successive

DUI convictions. We disagree. This Court has for decades noted the public outrage

toward the crime of drunk driving and the carnage caused by drunk drivers. The “courts

have recognized that drunk drivers have cut a wide swath of death and destruction

nationwide. We note that Montana has also suffered the effects of this national tragedy.”

State v. Burns, 213 Mont. 372, 377, 691 P.2d 817, 820 (1984). Persons who repeatedly

drive while intoxicated present a special concern to the public safety. It is the

responsibility of the legislature to distinguish criminal offenses and establish the

punishments. Different treatment is permissible as long as it is not based upon

impermissible classifications such as race, sex or religion. Burns, 213 Mont. at 378, 691

P.2d at 821.

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¶22 A person convicted of an offense is eligible for the punishment authorized by

statute, as long as the penalty is not cruel and unusual punishment and is not based upon

an arbitrary distinction. State v. Webb, 2005 MT 5, ¶ 18, 325 Mont. 317, 106 P.3d 521.

Montana law recognizes that the State has a compelling interest in discouraging repeat

offenders through escalating criminal penalties. Persistence in crime and failure of

earlier discipline are recognized as lawful justifications for increasing punishment for

subsequent offenses. Burns, 213 Mont. at 378, 691 P.2d at 821. A “distinction between

first-time offenders and repeat offenders is not an arbitrary distinction because it fits with

Montana’s public policy to discourage repeat offenders and increase the public’s sense of

safety.” Webb, ¶ 24. This Court has also noted:

the state enforces its criminal laws for the benefit and protection of other
fundamental rights of its citizens. Montana has a compelling interest to
remove drunk drivers from our roadways. This compelling interest is
embodied in . . . § 61-8-401, MCA, . . . as well as §§ 61-8-714, -722 and -
723, MCA (1995) (providing escalating penalties for repeat offenders).

Hulse v. Department of Justice, 1998 MT 108, ¶ 34, 289 Mont. 1, 961 P.2d 75 (citations

omitted). The Montana Constitution does not include a right to be sentenced without

regard to prior convictions. Sanders, 208 Mont. at 287, 676 P.2d at 1314. The

assumption that a prior offender is a greater danger to the public is reasonable. Sanders,

208 Mont. at 289, 676 P.2d at 1315. Therefore, under Montana law, even if the highest

degree of equal protection analysis were imposed, requiring the State to show a

compelling interest in the DUI punishment statutes, such an interest exists as a matter of

law. The DUI statutes therefore withstand analysis and there is no equal protection

violation.

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¶23 Issue Three: Whether § 61-8-734(1)(b), MCA, violates Article II, § 28(1) of the

Montana Constitution. Blue argues that he cannot be sentenced as a fourth DUI offender

without first having been sentenced as a third DUI offender. He bases this argument on

Article II, § 28 of the Montana Constitution and City of Missoula v. Shea, 202 Mont. 286,

661 P.2d 410 (1983). Article II, § 28 of the Montana Constitution provides that laws for

the “punishment of crime shall be founded on the principles of prevention, reformation,

public safety and restitution for victims.” Blue argues that he had a right to experience

the progressive discipline of DUI convictions one through three before he could be

sentenced for a fourth DUI conviction. He acknowledges that there is no case law

supporting this position, other than perhaps Shea.

¶24 Shea dealt primarily with a constitutional challenge to several municipal parking

violation statutes. Th e opinion briefly discusses Shea’s attack upon the parking

ordinances because the fine increased if the offender failed to pay the original ticket on

time. This Court struck that provision because it was not designed to punish for the

offense, but to encourage early payment of the fine. This violated the “basic principle of

criminal law that punishment must be for the violation itself and must be proportional to

the gravity of the offense” as embodied in Article II, § 28 of the Montana Constitution.

Shea, 202 Mont. at 298, 661 P.2d at 416.

¶25 The district court, being in a unique position to know, determined that the Shea

decision is “distinguishable in many ways.” The statutory scheme for punishing DUI

offenses is materially different from the parking fine scheme in Shea. Rather than

escalating the punishment for the same offense, the DUI statutes provide discrete

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punishments for discrete convictions. This is within the province of the legislative power

to distinguish among criminal offenses and to establish punishments. Webb, ¶ 37. The

Shea decision does not support Blue’s argument.

¶26 This Court has held that the Montana Constitution gives the legislature the power

to distinguish between criminal offenses and to establish punishments, based upon the

principles of “prevention, reformation, public safety and restitution for victims”

expressed in Article II, § 28 of the Montana Constitution. Webb, ¶ 37. Even before

Article II, § 28 of the Montana Constitution was amended in 1999 to include

consideration of “public safety and restitution for victims,” this Court held that the

sentencing classifications for DUI offenders complied with that provision. In Burns we

held that a prison sentence for a repeat DUI offender did not violate the principles of

Article II, § 28 of the Montana Constitution. Burns, 213 Mont. at 379-80, 691 P.2d at

821-22. A sentencing limitation or condition that is “reasonably related to the objectives

of rehabilitation and protection of the victim and society” is proper. State v. Lucero,

2004 MT 248, ¶ 30, 323 Mont. 42, 97 P.3d 1106. When Blue was convicted of his fourth

DUI offense, he was subject to a constitutionally-appropriate sentence provided by the

legislature.

¶27 Affirmed.

/S/ MIKE McGRATH

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We concur:

/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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