State v. Bowles, 96-418
| Decision Date | 22 September 1997 |
| Docket Number | No. 96-418,96-418 |
| Citation | 284 Mont. 490,54 St.Rep. 962,947 P.2d 52 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Ray Lewis BOWLES, Defendant and Respondent. |
| Court | Montana Supreme Court |
Tara DePuy, Park County Attorney, Livingston; Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, for Plaintiff and Appellant.
Jennifer Wendt Bordy, Bozeman, for Defendant and Respondent.
This is an appeal from the Sixth Judicial District Court, Park County. On June 11, 1996, the District Court entered an order expunging a 1977 DUI conviction from Defendant Bowles' record and dismissing a fourth offense DUI felony charge against him. From this order, the State appeals and Defendant Bowles cross appeals. We affirm.
We address the following issue raised on appeal:
1. Did the District Court err in concluding that Defendant Bowles' 1977 DUI conviction may not be used to support the charge of felony fourth-offense DUI?
Defendant Bowles also raises two issues by way of cross appeal:
2. Was proper judicial determination of probable cause made by a neutral magistrate within 48 hours of Defendant Bowles' arrest?
3. May a justice court require conditions of bail to be performed prior to release?
Because we affirm the District Court's order dismissing the DUI felony charge against Bowles in Issue 1, we decline to address the merits of Issues 2 or 3 at this time.
On April 20, 1996, Defendant Ray Lewis Bowles (Bowles) was arrested for driving under the influence, driving without a valid license, and driving without mandatory insurance coverage. While Bowles' driving record from the Montana Department of Justice contained only two prior DUI convictions (December 1995 and March 1996), Bowles' driving record filed with the Park County Sheriff's Office contained a third DUI conviction from September 1977. Based upon Bowles' Park County driving record, an Information was filed on April 24, 1996, in the Sixth Judicial District Court, Park County, charging Bowles with driving a motor vehicle while under the influence of alcohol (DUI), fourth offense, a felony in violation of § 61-8-401, MCA. On April 29, 1996, Bowles filed a motion to dismiss the felony DUI charge. On June 11, 1996, the District Court granted Bowles' motion to dismiss, without prejudice to file a misdemeanor charge, concluding that because Bowles' 1977 DUI conviction should have been expunged in 1982 under § 61-8-714(5), MCA (1981), it could not now be counted to support a fourth offense felony DUI charge. From this order, the State appeals and Bowles cross appeals. We affirm.
A district court's grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 930 P.2d 31, 33 (citations omitted). Because the parties have raised no factual disputes, we must only determine whether the District Court correctly interpreted the law. Based upon our decision in Brander, we hold that the District Court correctly concluded that Bowles' 1977 DUI conviction should have been expunged in 1982 pursuant to § 61-8-714(5), MCA (1981), and, therefore, the District Court properly dismissed the charge of felony DUI, fourth offense.
Section 61-8-714(5), MCA (1981), provided in part:
An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from the defendant's record. [Emphasis added.]
In 1989 the Montana Legislature amended § 61-8-714(5), MCA, to provide that if, after five years, a defendant had no additional DUI convictions, the defendant's record would no longer be expunged, but rather the records and data relating to the prior DUI conviction would become confidential criminal justice information. Brander, 930 P.2d at 33-34 (citing § 2, Ch. 476, L.1989).
In 1995, the Montana Legislature amended § 61-8-714, MCA, to include a felony sanction for repetitive DUI offenders, which provides in pertinent part:
(4) On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. [Emphasis added.]
In conjunction with this new subsection, the Legislature amended § 61-8-714(6), MCA, (formerly subsection (5)), to provide in pertinent part:
(6) An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender's fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown. [First emphasis indicates newly added language; second emphasis added.]
In its June 11, 1996 Order, the District Court determined that under § 61-8-714(5), MCA (1981), Bowles' 1977 DUI conviction was required to be expunged from his record in 1982. The District Court explained that this expungement provision required "a comprehensive destruction of all records or identifiable descriptors of the offense." Further, the District Court distinguished State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, explaining that in Lorash we held that defendant could not challenge the constitutionality of § 46-18-201, MCA, a statute prohibiting deferment of a subsequent felony conviction, because the defendant had failed to affirmatively request expungement as required by § 46-18-204, MCA (1987), and that expungement provision was no longer available to the defendant because it had been repealed before the defendant was sentenced for his present offense. The District Court explained that, here, unlike in Lorash, the expungement provision of § 61-8-714(5), MCA (1981), was self-executing, and, therefore, expungement of Bowles' 1977 conviction from his record was required as a matter of course in 1982, despite the provision's subsequent repeal in 1989. The District Court, therefore, concluded that the State could not now under § 61-8-714(6), MCA (1995), use records maintained in violation of § 61-8-714(5), MCA (1981), to support the felony DUI charge against Bowles. However, the District Court rejected Bowles' ex post facto argument because Bowles was charged in 1996 with felony DUI, fourth offense, under § 61-8-714(6), MCA (1995), a statute in effect since October 1, 1995. Nonetheless, the District Court held that Bowles' 1977 DUI conviction could not be counted to support the current charge of felony DUI, fourth offense, and any other result would violate Bowles' rights to due process and equal protection. Consequently, the District Court granted Bowles' motion to dismiss.
The State argues that the District Court erred when it granted Bowles' motion to dismiss. The State asserts that the District Court too narrowly interpreted Lorash when it distinguished Lorash from the present case on the basis that the expungement provision at issue in Lorash required a defendant to affirmatively request expungement whereas the DUI expungement provision at issue here was self-executing. The State contends that the decision in Lorash was not based upon the defendant's failure to invoke the expungement procedure, but rather was based upon the unavailability of the procedure due to its repeal. Therefore, the State maintains that, just as in Lorash, Bowles is not entitled to have his 1977 DUI conviction expunged under § 61-8-714(5), MCA (1981), because this expungement provision was repealed in 1989, and, therefore, is currently not available to him. Accordingly, the State asserts that Bowles' 1977 DUI conviction may presently be counted for purposes of charging him with felony DUI, fourth offense.
Additionally, the State argues that it is unclear that § 61-8-714(5), MCA (1981), was intended to apply to local judicial or law enforcement records, such as those maintained by Park County. The State asserts that unlike § 46-18-204, MCA (1987), the statute at issue in Lorash, § 61-8-714(5), MCA (1981), did not expressly direct the Montana Department of Justice or any state or local official to expunge Bowles' record. Also, in contrast to § 46-18-204, MCA (1987), the State contends that § 61-8-714(5), MCA (1981), did not provide for dismissal of the underlying charge and that the legislative history concerning the repeal of this expungement provision in 1989 focused on the driving records of DUI defendants rather than judicial or law enforcement records. Relying on Lancaster v. Dept. of Justice (1985), 218 Mont. 97, 706 P.2d 126, the State asserts that the Montana Department of Justice, Motor Vehicle Division, has a duty, independent of any judicial or law enforcement record-keeping duties, to maintain records of the convictions of licensees pursuant to § 61-11-102(2), MCA. Therefore, the State contends that if the application of the expungement provision of § 61-8-714(5), MCA (1981), was intended to be limited to a DUI offender's driving record, the continued maintenance of local judicial and law enforcement records...
To continue reading
Request your trial
-
State ex rel. Kuntz v. Thirteenth Jud. Dist.
...legal questions which we review de novo, determining only whether the court correctly interpreted the law. See State v. Bowles (1997), 284 Mont. 490, 492, 947 P.2d 52, 53. ¶ 13 Subject to this writ of supervisory control, we are asked to resolve several related, narrow issues that previousl......
-
Foster v. Mahoney
...v. Weldele, 69 P.3d 1162, 1170 (Mont. 2003); Sidmore, 951 P.2d at 564, 566; State v. Pratt, 951 P.2d 37, 46 (Mont. 1997); State v. Bowles, 947 P.2d 52, 56 (Mont. 1997); State v. Cooney, 945 P.2d 891, 895-96 (Mont. 1997); State v. Reams, 945 P.2d 52, 56-58 (Mont. 1997); State v. Beckman, 944......
-
State v. Smith
...Booth v. Montana Twenty-First Judicial Dist., 1998 MT 344, ¶ 10, 292 Mont. 371, ¶ 10, 972 P.2d 325, ¶ 10 (citing State v. Bowles (1997), 284 Mont. 490, 492, 947 P.2d 52, 53). ¶ 13 Did the District Court err in denying Smith's motion to dismiss the Information on grounds that the prosecutor ......
-
State v. Holt
...State ex rel. Booth v. Montana, 1998 MT 344, ¶ 10, 292 Mont. 371, ¶ 10, 972 P.2d 325, ¶ 10, which in turn cited State v. Bowles (1997), 284 Mont. 490, 492, 947 P.2d 52, 53. Smith, ¶ 12. While State ex rel. Booth and Bowles both involved motions to dismiss, neither was grounded in a failure ......