State v. Ellenburg
| Decision Date | 11 June 1997 |
| Docket Number | Nos. 96-466,96-467,s. 96-466 |
| Citation | 938 P.2d 1376,283 Mont. 136 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Michael Adair ELLENBURG, Defendant and Appellant. |
| Court | Montana Supreme Court |
Terry G. Sehestedt, Missoula, for Defendant and Appellant.
Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Robert L. Deschamps III, County Attorney; Fred Van Valkenburg, Deputy County Attorney, Missoula, for Plaintiff and Respondent.
In proceedings before the Fourth Judicial District Court, Missoula County, Michael Adair Ellenburg was convicted of two separate offenses of operating a motor vehicle while under the influence of alcohol or drugs (DUI), fourth or subsequent offense. Ellenburg appeals from those convictions, raising issues reserved pursuant to § 46-12-204(3), MCA. We affirm.
The issues are:
1. What is the effect of legislative silence concerning mental state in the felony provision of § 61-8-714, MCA, on the status of DUI, fourth or subsequent offense, as an absolute liability offense?
2. Does suspension of a driver's license pursuant to the implied consent law followed by criminal prosecution arising from the same conduct violate the Double Jeopardy clauses of the Montana and United States Constitutions?
On January 12, 1996, Ellenburg was charged with four offenses said to have occurred on December 30, 1995: DUI, driving after being declared a habitual traffic offender, driving with a suspended or revoked license, and felony intimidation. On March 4, 1996, he was separately charged with a DUI offense alleged to have occurred on February 5, 1996.
Ellenburg moved to dismiss the January 12 charges on grounds including those raised in this appeal. His motion was denied by written opinion and order. He later pled guilty to the first three offenses charged on January 12, reserving the right to appeal the two issues here presented pursuant to § 46-12-204(3), MCA. In exchange for Ellenburg's plea, the State agreed to dismiss the intimidation charge and to recommend specific sentences with respect to the other charges.
Ellenburg also pled guilty to the March 4 DUI charge, after having unsuccessfully moved for its dismissal. He reserved, however, the right to appeal the issue set forth here as Issue 1.
Following entry of judgments in both cases, Ellenburg filed notices of appeal. Inasmuch as the same issues are raised, the appeals have been consolidated.
The grant or denial of a motion to dismiss in a criminal case is a question of law. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. Our standard of review is plenary; we review the decision to determine whether the conclusion of law is correct. Hansen, 903 P.2d at 195.
What is the effect of legislative silence concerning mental state in the felony provision of § 61-8-714, MCA, on the status of DUI, fourth or subsequent offense, as an absolute liability offense?
Section 61-8-714, MCA, sets forth the penalties for conviction of DUI. Ellenburg was sentenced under subsection (4) thereof:
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. Except as provided in subsection (8), notwithstanding any provision to the contrary providing for suspension of execution of a sentence imposed under this subsection, the imposition or execution of the first 6 months of the imprisonment sentence imposed for a fourth or subsequent offense may not be suspended.
Section 61-8-714(4), MCA.
Citing the § 45-2-104, MCA, requirement that absolute liability may only be imposed for a felony offense if the statute defining the offense clearly indicates a legislative purpose to impose absolute liability, Ellenburg points out that while § 61-8-714(4), MCA, does not mention a required mental state, neither does it clearly indicate a legislative purpose to impose absolute liability. He argues that there is no clearly-indicated legislative intent to impose absolute liability for fourth or subsequent conviction of DUI, as is required under § 45-2-104, MCA.
Ellenburg's argument is without merit. It fails to recognize that in the DUI convictions here appealed, while Ellenburg was sentenced pursuant tos 61-8-714(4), MCA, the statute defining the offense is § 61-8-401, MCA. That statute clearly states, and has since 1987, that "[a]bsolute liability as provided in 45-2-104 will be imposed for a violation of this section." Section 61-8-401(7), MCA.
Ellenburg contends that the absolute liability provision of § 61-8-401(7), MCA,applies only to misdemeanor DUI charges which existed at the time the absolute liability provision was adopted in 1987. The § 61-8-714(4), MCA, felony penalty for fourth or subsequent offense DUI was enacted as part of Ch. 447, L.1995.
Section 61-8-401(7), MCA, does not, by its terms, limit absolute liability to misdemeanor DUI offenses, and Ellenburg has not demonstrated any good reason to "read in" such a limitation. Nor does Ellenburg contend that the lack of reference to absolute liability in the misdemeanor DUI penalty provisions of § 61-8-714, MCA, prohibits imposition of absolute liability for misdemeanor DUI offenses. We conclude that, under § 61-8-401(7), MCA, absolute liability is imposed for both felony and misdemeanor DUI convictions.
In denying Ellenburg's motion to dismiss, the District Court referred to this Court's opinion in State v. McDole (1987), 226 Mont. 169, 734 P.2d 683. On appeal, Ellenburg argues that this Court erred in McDole in concluding that § 45-2-104, MCA, did not apply to the motor vehicle code in general and to DUI in particular. However, given the above statutory analysis, it is unnecessary for us to scrutinize McDole. Our decision in this case is based on the language of the statutes themselves, not on McDole.
We hold that legislative silence concerning mental state in the felony provision of § 61-8-714, MCA, has no effect on the status of DUI, fourth or subsequent...
To continue reading
Request your trial
-
Commonwealth v. Samuels
...of DWI is a strict liability crime"); State v. Glass, 620 N.W.2d 146, 151 (N.D.2000)(North Dakota DUI); State v. Ellenburg, 283 Mont. 136, 938 P.2d 1376, 1377 (1997) (Montana DUI); Albaugh v. State, 721 N.E.2d 1233, 1236 (Ind.1999)(Indiana DWI); State v. Fogarty, 128 N.J. 59, 607 A.2d 624, ......
-
State v. Price
...v. Kennedy, 120 N.M. 619, 904 P.2d 1044 (N.M.1995); Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (Ark.1997); State v. Ellenburg, 283 Mont. 136, 938 P.2d 1376 (Mont.1997); Ex Parte Pitluk, 940 S.W.2d 220 (Tex.1997). See also State v. McClendon, 131 Wash.2d 853, 935 P.2d 1334, 1344-46 (Wash.19......
-
State v. Hudson
...281 Mont. 64, 66, 931 P.2d 706, 707 (citations omitted). We impose absolute liability for felony DUI convictions. State v. Ellenburg (1997), 283 Mont. 136, 938 P.2d 1376. ¶ 14 In Robison we rejected a court's jury instruction that expanded the definition of "actual physical control" to enco......
-
State v. Rand
...and does not require an intent element. State v. Hudson, 2005 MT 142, ¶ 15, 327 Mont. 286, 114 P.3d 210 (citing State v. Ellenburg, 283 Mont. 136, 137, 938 P.2d 1376, 1377).¶7 In light of this well-settled Montana law, the District Court properly found that evidence of Rand's intent was irr......