City of Missoula v. Robertson

• Decision Date: 02 March 2000
• Docket Number: No. 98-029.,98-029.
• Citation: 298 Mont. 419,998 P.2d 144,2000 MT 52
• Parties: The CITY OF MISSOULA, Plaintiff, Appellant and Cross-Respondent, v. Rodney L. ROBERTSON, Defendant, Respondent and Cross-Appellant.
• Court: Montana Supreme Court

998 P.2d 144

2000 MT 52

298 Mont. 419

The CITY OF MISSOULA, Plaintiff, Appellant and Cross-Respondent, v. Rodney L. ROBERTSON, Defendant, Respondent and Cross-Appellant.

No. 98-029.

Supreme Court of Montana.

Submitted on Briefs June 3, 1999.

Decided March 2, 2000.

Joseph P. Mazurek, Montana Attorney General, Tammy K. Plubell, Assistant Montana Attorney General; Jim Nugent, Missoula City Attorney, Gary L.Henricks, Deputy City Attorney, Missoula, Montana, For Appellant.

Steve Fletcher, Bulman Law Associates, Missoula, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 City of Missoula (City) appeals from an opinion and order issued by the Fourth Judicial District Court, Missoula County, which remanded this case to Municipal Court for entry of dismissal. Rodney L. Robertson (Robertson) cross-appeals on alleged errors by the Municipal Court.

¶ 2 We affirm in part, reverse in part, and remand for further proceedings.

Factual and Procedural Background

¶ 3 On July 7, 1995, the State charged Robertson with two counts of criminal mischief and driving under the influence of alcohol (DUI).

¶ 4 Earlier that night, shortly after 10 p.m., Missoula police officer Robert Heinle (Heinle) responded to a 9-1-1 report that a male suspect was vandalizing a vehicle and a home on the north side of town. While en route to the home of Teresa and James Robbins, Heinle was informed by a police dispatcher that the suspect had left the scene and was driving a white Chevrolet Blazer with licence plate number AZ2MT. Heinle identified the vehicle driving approximately one-half mile away from the scene of the alleged crime. Heinle stopped the driver.

¶ 5 The driver, Robertson, appeared "agitated" according to Heinle, and commenced discussing the vandalism in question. Heinle could smell a strong odor of alcohol on Robertson's breath, and noticed that Robertson's speech was slow, deliberate and slurred. Once out of the vehicle, Robertson had difficulty maintaining his balance, according to Heinle. Robertson would not cooperate with Heinle's attempts to administer field sobriety tests at that time, apparently due to agitation or anger over what had minutes ago transpired at the Robbins' residence.

¶ 6 Heinle was then contacted by another officer, who was at the scene of the alleged vandalism. The officer had discussed the incident with the Robbins, and had observed that their car windshield had been smashed and their front door damaged from the suspect's attempts to gain entry. The officer instructed Heinle to arrest Robertson for criminal mischief.

¶ 7 At the Missoula Police Department station, Heinle successfully administered three field sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one-legged stand test. After sufficiently failing each for the purpose of establishing probable cause, Robertson was arrested for driving under the influence. He then refused to perform the three tests again while being video taped. Robertson also refused to submit to a breathalyzer test.

¶ 8 Robertson pled not guilty to the charges. A series of motions for continuance over the next two years resulted in numerous delays in this matter going to trial. Robertson filed a motion for continuance on September 27, 1995, so that he could secure counsel. The motion was granted and the September 29, 1995 trial date was moved to November 28, 1995. This matter was then delayed, awaiting a ruling from this Court on another case involving a relevant issue. A new trial date was eventually set for October 17, 1996. Robertson moved for a continuance on October 9, and trial was rescheduled for December 27, 1996. The City then moved to continue on December 20, 1996, due to a schedule conflict with the testifying officer. Trial was again rescheduled, this time for April 24, 1997. Robertson moved to continue on April 16, 1997. Trial was again moved, this time to June 12, 1997. Robertson again moved for a continuance on May 20, 1997, claiming he had recently moved to San Diego, California, and needed to make arrangements for his return to Montana for trial. This motion was granted. Trial was rescheduled for July 24, 1997.

¶ 9 On July 3, 1997, Robertson again moved for a continuance for the same reasons—that he needed to make travel arrangements. The motion suggested that, via a phone conference, the parties and the court could work out a new trial date. This motion was denied shortly before the trial date. Unable to make travel arrangements, the trial proceeded without Robertson appearing in court.

¶ 10 At trial in Missoula Municipal Court on July 24, 1997, the two charges for criminal mischief were dismissed. The key witnesses, the Robbins, apparently had moved to Idaho by the time of trial, and were unavailable to testify. The trial, in which only Officer Heinle testified, proceeded under the one charge of DUI. After the state's case in chief, counsel for Robertson moved for a directed verdict. This motion was denied. The jury found Robertson guilty of driving under the influence of alcohol. Robertson appealed to district court.

¶ 11 Following briefing by both parties, the District Court entered an order on November 18, 1997, in which it remanded the matter to Municipal Court for entry of dismissal. Specifically, the court determined that the arresting officer did not have a "sufficient particularized suspicion to justify the investigative stop for DUI." Thus, the District Court concluded that the Municipal Court erred in denying Robertson's motion for a directed verdict.

¶ 12 Additionally, the District Court determined that the Municipal Court did not abuse its discretion in denying Robertson's July 3, 1997 motion for continuance. Finally, the court determined that aside from one issue regarding attorney's fees, the "remaining issues . . . do not need to be addressed given the dispositive impact of the second issue and are not addressed in this opinion." Robertson had asserted, on appeal to District Court, that the Municipal Court had erred in denying his motion to offer evidence of the breathalyzer machine's unreliability, and in allowing testimony regarding the HGN test results. He also asserted that § 61-8-404(2), MCA, which declares that evidence of a person's refusal to take a sobriety test is admissible, violates the separation of powers doctrine of the U.S. and Montana constitutions.

¶ 13 The State appeals the District Court's order remanding for dismissal. Robertson cross-appeals, raising the three issues not addressed by the District Court as well as whether the District Court abused its discretion in affirming the Municipal Court's denial of Robertson's July 3, 1997 motion to continue.

Standard of Review

¶ 14 This Court reviews legal conclusions to determine whether the district court's interpretation of the law is correct. Bi-Lo Foods, Inc. v. Alpine Bank, Clifton, 1998 MT 40, ¶ 14, 287 Mont. 367, ¶ 14, 955 P.2d 154, ¶ 14. The scope of a district court's review is a question of law because its power to review a municipal court's decision is provided pursuant to § 3-6-110, MCA. See Quick v. Bozeman School Dist. No. 7, 1999 MT 175, ¶ 16, 295 Mont. 240, ¶ 16, 983 P.2d 402, ¶ 16. We review evidentiary rulings to determine whether the court abused its discretion. State v. Fenton, 1998 MT 99, ¶ 11, 288 Mont. 415, ¶ 11, 958 P.2d 68, ¶ 11. Our review of questions involving constitutional law is plenary. State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503. A court's resolution of an issue involving a question of constitutional law is a conclusion of law which we review to determine whether the conclusion is correct. Schnittgen, 277 Mont. at 295-96,922 P.2d at 503. All statutes carry with them a presumption of constitutionality, and this Court construes statutes narrowly to avoid an unconstitutional interpretation if possible. State v. Nye (1997), 283 Mont. 505, 510, 943 P.2d 96, 99. This Court also reads statutes as a whole, and terms used in the statute should not be isolated from the context in which they were used by the Legislature. Nye, 283 Mont. at 510,943 P.2d at 99.

Discussion

¶ 15 Preliminary to the following, City urges this Court to refrain from reviewing three of the five issues raised in Robertson's cross-appeal. All three were raised, but not addressed, on appeal to the District Court, which found another issue dispositive. Thus, City contends that because the District Court did not rule on these issues, they are not properly before this Court. The three issues are:

1. Did the Municipal Court abuse its discretion by prohibiting Robertson from challenging the reliability of the breathalyzer machine as a basis for his refusal to submit to a breathalyzer test?

2. Did the Municipal Court err in admitting the officer's testimony regarding the horizontal gaze nystagmus (HGN) test results without expert testimony establishing the test's reliability?

3. Does § 61-8-404(2), MCA, in determining that proof of a person's to take a sobriety test is "admissible in any criminal action or proceeding," violate the separation of powers doctrine of the U.S. and Montana constitutions?

¶ 16 The three issues in question are not based on an adverse decision by the District Court. Therefore Robertson's "cross-appeal" of these issues is something of a misnomer. Rather, Robertson's cross-appeal anticipates that should we reverse the decision of the District Court, we should subsequently review other alleged errors made by the Municipal Court and nevertheless rule in his favor. In essence, Robertson is providing this Court with alternatives for upholding the District Court's order of remand and dismissal. Before proceeding, we must expressly rule on whether our review of these issues is correct in this instance.

¶ 17 Our decision in City of Missoula v. Asbury (1994), 265 Mont. 14, 20, 873 P.2d 936, 939, similarly dealt with a matter originating in municipal court....