No
No. 99-345
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 336
297 Mont. 415
992 P.2d 840
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RYAN LUCHAU,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steve Fletcher; Bulman Law Associates, Missoula, Montana
For Respondent:
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Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant
Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney; Karen Townsend, Deputy Missoula County
Attorney, Missoula, Montana
Submitted on Briefs: October 14, 1999
Decided: December 29, 1999
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶ Appellant Ryan Luchau (Luchau) was charged with violation of § 61-8-410, MCA, for
operating a motor vehicle while having an alcohol concentration of .02 or more. Analysis
of his breath indicated a concentration of .088. Luchau was 20 years old at the time.
¶ Luchau was found guilty in Missoula County Justice of the Peace Court and
subsequently appealed to the District Court, where he contended that § 61-8-410, MCA,
was unconstitutional. The District Court rejected his constitutional arguments and he
entered a conditional plea of guilty reserving the right to appeal. We affirm the judgment
of the District Court.
¶ Luchau raises the following issues on appeal.
¶ 1. Whether § 61-8-410, MCA, which makes it unlawful for a person under the age of 21
to drive with an alcohol concentration of 0.02 or more, contains a presumption that
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violates the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
¶ 2. Whether § 61-8-410, MCA, violates Equal Protection of the laws by imposing strict
liability on persons under 21 years of age for driving with an alcohol concentration of 0.02
or more.
¶ 3. Does § 61-8-410, MCA, establish a causal connection between prohibited conduct
and a harmful result as required by § 45-2-201, MCA?
¶ 4. Whether § 61-8-404(1)(a), MCA, which provides that an analysis of a person's blood
or breath is admissible as "evidence of any measured amount . . . of alcohol,"
impermissibly infringes on the authority of courts to determine questions of the
admissibility of evidence.
Standard of Review
¶ The District Court's order denying Luchau's motion to dismiss presents questions of law
which are subject to de novo review. See, e.g., State v. Koehn, 1998 MT 234, ¶ 9, 291
Mont. 87, ¶ 9, 966 P.2d 143,¶ 9.
Discussion
¶ 1. Whether § 61-8-410, MCA, which makes it unlawful for a person under the age of 21
to drive with an alcohol concentration of 0.02 or more, contains a presumption that
violates the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
¶ Section 61-8-410, MCA (1997), provides in pertinent part:
It is unlawful for a person under the age of 21 who has an alcohol
concentration of 0.02 or more to drive or be in actual physical control of a
vehicle upon the ways of this state open to the public.
¶ Luchau argues that § 61-8-410, MCA, creates a conclusive presumption of guilt if a
person registers an alcohol concentration of 0.02 on the breathalizer. He contrasts § 61-8-
410, MCA, with § 61-8-401, MCA, and concludes that § 61-8-401, MCA, unlike § 61-8-
410, MCA, which presumes guilt, allows the trier of fact to consider the results of the
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breathalizer along with other evidence in making a determination as to whether the
accused was driving under the influence of alcohol. Luchau reasons that a defendant under
§ 61-8-410, MCA, should have the same right to challenge the presumption that he was
"under the influence."
¶ Luchau's argument fails to recognize the difference between the two statutes. Section 61-
8-401, MCA, makes it unlawful for a person who is under the influence of alcohol to drive
upon the ways of the state. "Under the influence" means that, as a result of taking alcohol
or drugs into the body, "a person's ability to safely operate a motor vehicle has been
diminished." Section 61-8-401(3), MCA. Thus, under this statute, the State must prove, as
an element of the crime, that a person is under the influence, that is, that his ability has
been diminished. In defending against such a charge, a defendant can establish his
innocence by showing that his ability to drive was not impaired or diminished. The same
is not true under § 61-8-410, MCA, which imposes strict liability for driving with an
alcohol concentration of 0.02 or more regardless of whether the accused's ability to drive
safely is diminished. In other words, being under the influence of drugs or alcohol is not
an element of the offense as defined by § 61-8-410, MCA.
¶ In determining what facts must be proved beyond a reasonable doubt, the state
legislature’s definition of the elements of the offense is usually dispositive. McMillan v.
Pennsylvania (1986), 477 U.S. 79, 85, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67, 75. In State v.
Krantz (1991), 241 Mont. 501, 509, 788 P.2d 298, 303, we held that "the decision to
designate specified factors as elements of a crime, as affirmative defenses, or as
sentencing factors, is fundamentally a decision left to the states."
¶ In arguing that § 61-8-410, MCA, impermissibly shifts the burden of proof for an
element of the offense to the defendant, thereby creating a conclusive presumption of
guilt, Luchau relies on Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.
Ed.2d 39. The United States Supreme Court’s decision in Sandstrom established "that a
jury instruction which shifts to the defendant the burden of proof on a requisite element of
mental state violates due process." Montana v. Egelhoff (1996), 518 U.S. 37, 54, 116 S.Ct.
2013, 2022, 135 L.Ed.2d 361, 374. The burden-shifting which gave rise to the concern in
Sandstrom, however, becomes relevant only when the State requires the accused to prove
that which, by virtue of the statutory definition of the crime, the prosecution is required to
prove beyond a reasonable doubt. By way of example, we held in City of Missoula v. Shea
(1983), 202 Mont. 286, 293-96, 661 P.2d 410, 413-14, that a law which creates a
rebuttable presumption that an illegally parked vehicle was parked by its owner will run
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afoul of Sandstrom, but one imposing strict liability on the owner regardless of who
parked the vehicle will not.
¶ In similar fashion, § 61-8-410, MCA, which imposes strict liability upon a driver of less
than 21 years of age who has an alcohol concentration of 0.02 or more, regardless of
whether his ability to drive is impaired, does not run afoul of Sandstrom. Although an
alcohol concentration of 0.02 or more is an element of the crime, nothing in § 61-8-410,
MCA, creates a factual presumption with respect to when such a concentration is present.
Rather, the defendant's alcohol concentration is an element that the State must prove
beyond a reasonable doubt. Thus, § 61-8-410, MCA, contains no presumption relating to
an element of the offense. In the absence of such a presumption, Luchau's Sandstrom
argument has no merit.
¶ 2. Whether § 61-8-410, MCA, violates Equal Protection of the laws by imposing strict
liability on persons under 21 years of age for driving with an alcohol concentration of 0.02
or more.
¶ Luchau argues that § 61-8-410, MCA, "discriminates against persons under the age of 21
by allowing them to be charged with what is essentially a DUI without the reciprocal right
of proving that their driving was not impaired." This argument, like Luchau's first
argument, is premised upon a misunderstanding as to the elements of the offense defined
by § 61-8-410, MCA. Section 61-8-410, MCA, imposes liability without regard to whether
the driver's ability was impaired or diminished. Thus Luchau, in essence, argues that he
should have the right to disprove a non-element of the offense, in other words, impairment
of driving ability. There is of course no such right. Whether the accused's ability to operate
the vehicle safely was impaired is totally irrelevant to the determination of guilt under §
61-8-410, MCA. The offense, as defined, is simply engaging in the act of driving after
having consumed alcohol.
¶ We also understand Luchau to argue that the legislature could have accomplished its
goal of "zero tolerance" without eliminating the requirement that the State prove that the
driver was impaired, and that, with the enactment of § 61-8-410, MCA, persons under the
age of 21 are denied equal protection of the laws as compared with adults charged under §
61-8-401, MCA.
¶ Although Luchau contends that a strict scrutiny analysis is appropriate, his contention is
predicated upon his argument that § 61-8-410, MCA, contains an impermissible, burden-
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shifting presumption which violates his fundamental right to a fair trial. As discussed
above, that is a specious argument and it does not support the application of strict scrutiny
analysis. Further, Luchau does not assert that automobile drivers under the age of 21
constitute a suspect class. Thus, the question, such as it is, is whether § 61-8-410, MCA,
satisfies the rational basis test. We determine that it does.
¶ Those persons targeted by the statute, unlike persons of 21 years of age or older, are
legally forbidden from consuming alcohol. That and the fact that there is a high correlation
of injury and death between underage drinking and driving are more than an adequate
rational basis for treating underage drivers differently from adult drivers. Compare Mary-
Karen Niemeier, Note, Zip, Zero, Zilch: The New Alcohol Tolerance Law for Underage
Drivers in Michigan, 73 U. Det. Mercy L. Rev. 45 (1995) ("Even more startling is the fact
that a person under the age of twenty-one is 'twice as likely to die in a[n] alcohol-related
crash as an adult over [that] age . . ."). We hold that § 61-8-410, MCA, does not violate the
equal protection of the laws.
¶ 3. Does § 61-8-410, MCA, establish a causal connection between prohibited conduct
and a harmful result as required by § 45-2-201, MCA?
¶ Luchau also argues that § 45-2-201, MCA, requires a "harmful result" element be
included within § 61-8-410, MCA. We find this argument to be without merit. Section 45-
2-201, MCA, does not establish the "elements" of an offense. Rather, it is a definitional
statute setting forth the causal relationship between conduct and result for those offenses
which, as statutorily defined, require a specific result. It is clear, however, that § 61-8-410,
MCA, does not require that any "result" follow from the proscribed conduct. Under the
strict liability provisions of § 61-8-410, MCA, Luchau violated the statute by driving with
an alcohol concentration of 0.02 or more, regardless of whether his conduct caused injury
or damage. Section 45-2-201, MCA, merely addresses instances where a particular result
is an element of the crime. See Criminal Law Comm’n Comments to Mont. Code Ann. 45-
2-201, reprinted in Mont. Code Ann. (Annots.) Title 45, at 78 (1996). Section 45-2-201,
MCA, has no application to a prosecution under § 61-8-410, MCA.
¶ 4. Whether § 61-8-404(1)(a), MCA, which provides that an analysis of a person's blood
or breath is admissible as "evidence of any measured amount . . . of alcohol,"
impermissibly infringes on the authority of courts to determine questions of the
admissibility of evidence.
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¶ The record reflects that, at no time in the Justice or District Court nor on appeal, has
Luchau contested the fact that he had an alcohol concentration of .088. Nor did he, prior to
appeal, ever challenge the application of § 61-8-404(1)(a), MCA. Luchau now attempts to
raise this constitutional challenge on appeal despite not having raised it below.
¶ Under §§ 46-20-104(2) and -701(2), MCA, a failure to raise an objection during the
district court proceeding constitutes waiver of the claimed irregularity unless one or more
of several narrow statutory exemptions (not argued here) apply. We will not address an
issue raised for the first time on appeal. Nason v. Leistiko, 1998 MT 217, ¶ 18, 290 Mont.
460, ¶ 18, 963 P.2d 1279, ¶ 18.
¶ The judgment of the District Court is affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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