November 3 2010
DA 10-0048
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 233
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BRUCE LEE HAFNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 08-82
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Bryan Charles Tipp, Brett D. Schandelson, Tipp & Buley, P.C.,
Missoula, Montana
For Appellee:
Steve Bullock, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Suzy Boylan, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: September 23, 2010
Decided: November 3, 2010
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Bruce Hafner (Hafner) was convicted of driving while under the influence of
alcohol (DUI) and careless driving. He appeals, alleging the Fourth Judicial District
Court erred in denying his motion to suppress evidence of his refusal to submit to
sobriety breath tests. He also appeals the District Court’s ruling denying him credit
towards an imposed fine for the days he served in pretrial detention. We affirm.
ISSUES
¶2 A restatement of the issues on appeal is:
¶3 Did the District Court err in denying Hafner’s motion to suppress?
¶4 Did the District Court incorrectly interpret § 46-18-403, MCA?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On January 29, 2008, at approximately 1:15 a.m., Deputy Agnew of the Missoula
County Sheriff’s Office responded to a report from a passing witness that a vehicle was
in a ditch off Highway 12. The witness, who was a driver for the Department of
Transportation, opined that the driver may be intoxicated. When Agnew arrived at the
scene, he first spoke with the witness who had remained near the ditched vehicle. The
witness explained that the driver of the ditched car had repeatedly tried to back out of the
ditch but was unsuccessful because one of the rear tires of the car had no contact with the
ground. Agnew noted that the car had come to rest hood-first in the ditch with the
driver’s side against a cattle guard; therefore, Agnew approached and opened the
passenger door. He immediately detected the strong smell of alcohol and noticed that
Hafner’s eyes were bloodshot and glassy and his speech was slurred.
2
¶6 Agnew instructed Hafner to exit the vehicle through the passenger door, but
Hafner tried to exit through the driver’s door. Agnew instructed him again to get out of
the vehicle through the passenger door. When Hafner did this, Agnew smelled alcohol
on Hafner. Also, Agnew noted Hafner could not maintain his balance and appeared to
have wet his pants.
¶7 Based on Hafner’s apparent intoxicated state and the icy, uneven road at the scene,
Agnew elected not to conduct field sobriety tests at the scene and took Hafner into
custody, intending to complete his investigation at the sheriff’s office. Upon arrival,
Hafner was taken to a processing room. While there he was verbally abusive to the
officers and refused to perform any field sobriety tests or provide a breath sample.
Because Hafner had four previous DUI convictions, he was charged with felony DUI,
careless driving and failure to have liability insurance in effect.
¶8 On February 13, 2008, the Missoula County Attorney filed an Information in
District Court and Hafner was released on $10,000 bail. On March 6, he pled not guilty
to all charges. In August 2008, Hafner filed a motion to suppress all evidence seized
after his arrest. He argued that the objective facts available at the time Agnew arrested
him did not support a finding of probable cause that he was guilty of DUI; at best, they
supported a finding of particularized suspicion. Hafner asserted that with particularized
suspicion, Agnew could have only temporarily detained him while conducting an
investigation to determine if there was probable cause for arrest. Hafner noted probable
cause in these situations is typically obtained through field sobriety tests which Agnew
chose not to conduct at that time. He opined that Agnew’s failure to conduct field
3
sobriety tests meant Agnew arrested him on particularized suspicion alone, and therefore
the warrantless arrest was without probable cause and was unlawful.
¶9 The parties agreed that a suppression hearing need not be held and the court could
decide the matter based on the motion and responses. On October 20, 2008, the District
Court denied Hafner’s motion, concluding that Agnew had sufficient probable cause for
the arrest.
¶10 On February 11, 2009, Hafner changed his plea on the DUI charge to guilty and
entered into a plea agreement. The plea agreement contained a provision that Hafner
would not receive credit toward his $1,000 fine for his time served in pretrial detention.
The agreement also acknowledged that Hafner retained his right to appeal the court’s
suppression ruling.
¶11 On December 10, 2009, Hafner was committed to the Department of Corrections
(DOC) for 13 months for placement in the WATCh program, followed by 4 years with
the DOC to be suspended upon Hafner’s successful completion of the WATCh program.
The court ordered that Hafner should receive credit toward his sentence for the 137 days
he spent in pretrial detention. However, the District Court ruled that Hafner should not
receive credit toward his $1,000 fine. Hafner filed a timely notice of appeal challenging
the District Court’s ruling on his suppression motion and the court’s refusal to apply
credit for days served against his fine.
STANDARDS OF REVIEW
4
¶12 We review a district court’s ruling on a motion to suppress to determine whether
its findings of fact are clearly erroneous and its interpretation and application of the law
are correct. State v. Charlie, 2010 MT 195, ¶ 20, 357 Mont. 355, ___ P.3d ___.
¶13 The parties proffered different standards for our review of sentence legality.
Hafner opined that we review sentence legality for correctness while the State put forth
an abuse of discretion standard. We note that in the past, this Court reviewed a sentence
for an abuse of discretion (State v. Richards, 285 Mont. 322, 324, 948 P.2d 240, 241
(1997), overruled, State v. Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978);
however, we determined in 1999 that we will review sentences only for legality, and we
will not apply an abuse of discretion standard. State v. Montoya, 1999 MT 180, ¶ 15, 295
Mont. 288, 983 P.2d 937. Since deciding Montoya, we have established two narrow
exceptions to this rule. First, if a defendant is sentenced to serve less than one year of
actual incarceration, we will review a sentence both for legality and for abuse of
discretion. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. Second, we
will review for an abuse of discretion the reasonableness of conditions imposed on
probation. State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164. As neither
of these exceptions applies to the case before us, we review Hafner’s sentence for legality
and not for abuse of discretion.
DISCUSSION
¶14 Did the District Court err in denying Hafner’s motion to suppress?
¶15 For an officer to arrest someone without first obtaining a warrant, the officer must
have probable cause to believe that the person is committing an offense or that the person
5
has committed an offense and existing circumstances require immediate arrest. Section
46-6-311, MCA. In the case before us, Agnew arrested Hafner for DUI without a
warrant. Hafner refused to take post-arrest sobriety tests. As noted above, Hafner moved
to have all evidence obtained after his arrest, including evidence of his refusal to take
these tests, suppressed on the ground that Agnew did not have probable cause to arrest
him. It is well established that suppression of all evidence seized as a result of an illegal
arrest is the appropriate remedy. State v. McKee, 1998 MT 110, ¶ 27, 288 Mont. 454,
958 P.2d 700. To determine whether the District Court erred in denying Hafner’s
motion, we must determine whether Agnew had sufficient probable cause to arrest
Hafner.
¶16 We stated in City of Missoula v. Forest, 236 Mont. 129, 132, 769 P.2d 699, 701
(1989), “Probable cause must be based on an assessment of all relevant circumstances,
evaluated in light of the knowledge of a trained law enforcement officer.” We continued:
“field sobriety tests are a tool which can assure the officer that the person is in fact under
the effect of intoxicating beverages. However, the absence of such tests do not fatally
flaw the probable cause determination.” Forest, 236 Mont. at 133, 769 P.2d at 701. See
also In re Cybulski, 2008 MT 128, ¶ 29, 343 Mont. 56, 183 P.3d 39.
¶17 Hafner acknowledges these cases but argues that without field sobriety tests,
Agnew had no probable cause to arrest him. He asserts Agnew should have performed
those field sobriety tests that could have been conducted safely despite the inclement
weather, such as the horizontal gaze nystagmus, the alphabet test, and the fingertip
dexterity test, to name a few. He further opines that “the objective facts” available to
6
Agnew at the time of arrest did not provide probable cause. We therefore review those
“objective facts.”
¶18 First, Hafner’s vehicle was in the ditch evidencing that Hafner had been driving
the vehicle when he lost control of it. Additionally, his repeated futile efforts to back out
of the ditch (to the extent he melted a rear tire) revealed that he failed to grasp his
situation. Both Hafner and the vehicle smelled strongly of alcohol. Hafner’s eyes were
glassy and bloodshot, his speech was slurred, and he had trouble understanding and
responding to the simple instruction of getting out of the vehicle by way of the passenger
side. Once out of the vehicle he could not keep his balance and he appeared to have
urinated on himself.
¶19 These “objective facts” are undisputedly symptoms of intoxication. In State v.
Hendrickson, 283 Mont. 105, 112, 939 P.2d 985, 989 (1997), we noted that the officer’s
observation of Hendrickson’s difficulty in maneuvering his motorcycle in traffic, his
slurred speech, his red and watery eyes, and the smell of alcohol on his breath was
sufficient to establish probable cause to arrest him for DUI. While we acknowledge
Agnew did not witness Hafner actually driving his vehicle in an erratic or uncontrolled
manner, we nonetheless conclude Agnew’s “assessment of all relevant circumstances,
evaluated in light of [his] knowledge [as] a trained law enforcement officer,” provided
sufficient probable cause to arrest Hafner for DUI. Forest, 236 Mont. at 132, 769 P.2d at
701. Moreover, while we urge officers to conduct such field tests as are possible and
appropriate prior to arrest, we restate that overt objective evidence of intoxication can
7
provide probable cause without such test results. As the District Court reached the same
conclusion, the court’s denial of Hafner’s motion to suppress was not error.
¶20 Did the District Court incorrectly interpret § 46-18-403, MCA?
¶21 Section 46-18-403(2), MCA, provides:
A person incarcerated on a bailable offense who does not supply bail and
against whom a fine is levied on conviction of the offense may be allowed
a credit for each day of incarceration prior to conviction, except that the
amount allowed or credited may not exceed the amount of the fine. The
daily rate of credit for incarceration must be established annually by the
board of county commissioners by resolution. The daily rate must be equal
to the actual cost incurred by the detention facility for which the rate is
established. (Emphasis added.)
¶22 Hafner complains that the provisions of § 46-18-403(2), MCA, were not met and
the District Court erred in not giving him credit for his pretrial detention time against his
$1,000 fine. Hafner relies exclusively on our holding in State v. Wiedrich, 2005 MT 127,
327 Mont. 214, 112 P.3d 1054. In Wiedrich, Wiedrich entered into a plea agreement
after being charged with felony DUI following his eleventh DUI. He was sentenced as a
persistent felony offender to Montana State Prison for 14 years, 5 years suspended. He
was also fined $1,000. He appealed the district court’s failure to give him credit against
this fine for the time he was incarcerated prior to his conviction. Hafner emphasizes that
the Wiedrich court stated that the credit provided i n § 4 6-18-403(2), MCA, was
“required.” He urges us to draw the same conclusion. We decline based upon the
statutory language.
¶23 In 2002, when Wiedrich was charged, § 46-18-403(2), MCA, read:
Any person incarcerated on a bailable offense who does not supply bail and
against whom a fine is levied on conviction of the offense must be allowed
8
a credit for each day of incarceration prior to conviction, except that the
amount allowed or credited may not exceed the amount of the fine. The
daily rate of credit for incarceration must be established annually by the
board of county commissioners by resolution. The daily rate must be equal
to the actual cost incurred by the detention facility for which the rate is
established. (Emphasis added.)
¶24 Notably, the 2002 statute states that the credit “must” be allowed whereas the
current statute applicable to Hafner states that such a credit “may” be allowed. As we
have repeatedly noted, § 1-2-101, MCA, instructs that “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.” See Bank of Am. v. Ivey, 2010
MT 131, ¶ 10, 356 Mont. 388, 234 P.3d 867. Given that the Legislature revised this
statute in 2005 and gave courts the discretion to give or refuse such a credit, we cannot
impose the mandatory requirements that previously existed. The District Court
concluded that it was not required to grant Hafner credit against his fine for time served.
This is not an incorrect interpretation of the applicable statute.
CONCLUSION
¶25 For the foregoing reasons, we affirm the District Court’s ruling.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON
9