State v. Favel

Decision Date02 December 2015
Docket NumberNo. DA 13–0686.,DA 13–0686.
Citation381 Mont. 472,362 P.3d 1126
Parties STATE of Montana, Plaintiff and Appellee, v. Jackie Lee FAVEL, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: James Reavis, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant Attorney General, Helena, Montana, Gina Dahl, Hill County Attorney, Ed Hirsch, Deputy County Attorney, Havre, Montana.

Justice Laurie McKINNON delivered the Opinion of the Court.

¶ 1 Jackie Lee Favel appeals her felony conviction from the Twelfth Judicial District Court, Hill County, for driving under the influence of alcohol (DUI). We affirm.

¶ 2 Favel raises the following issue on appeal, which we restate as follows:

Did the prosecution improperly comment upon the inference of intoxication contained within § 61–8–404(2), MCA, and assert that Favel was responsible for establishing her innocence, thereby denying Favel her due process right to a fair and impartial trial?

¶ 3 On September 21, 2012, the Havre Police Department received a report of an intoxicated driver traveling from Chinook to Havre in a green Cadillac. Soon thereafter, Sergeant Andrew Poulos observed a vehicle matching this description turn southbound onto 12th Avenue in Havre. Sergeant Poulos began to follow the vehicle. He observed the vehicle drift from the north side of the street to the south side and nearly hit two pedestrians. Sergeant Poulos noted that the vehicle came "within feet" of the pedestrians and that the driver failed to apply the brakes.

¶ 4 Sergeant Poulos initiated a traffic stop and identified Favel as the driver. He noticed that Favel's eyes were red and glassy; she was slurring her speech; and a strong odor of alcoholic beverage was coming from her breath. After Favel exited the vehicle, Sergeant Poulos asked her to count from 11 to 23, count down from 33 to 21, and recite the alphabet. Favel failed to complete any of these exercises correctly.

¶ 5 Next, Favel was asked to complete standardized field sobriety tests (SFSTs), including the walk-and-turn test and the one-leg stand test. On the walk and turn, Favel committed seven out of eight mistakes, including losing her balance, stepping off the line, and taking an incorrect number of steps. On the one-leg stand, Favel committed three out of four mistakes, including swaying, raising her arms, and putting her foot down. Based on his observations, Sergeant Poulos asked Favel to submit to a preliminary breath test. Favel refused.

¶ 6 Following the SFSTs, Sergeant Poulos placed Favel under arrest and transported her to the Hill County Detention Center. At the Detention Center, Favel was asked to submit to a breath sample for screening using the Intoxilyzer 8000. Favel again refused to submit to a breath test. After Favel's refusal, Sergeant Poulos applied for and received a search warrant authorizing him to obtain a sample of Favel's blood. Subsequent testing at the Montana State Crime Lab determined that Favel had a blood alcohol concentration of 0.13 percent.

¶ 7 The State charged Favel by Information with felony DUI, fourth or subsequent. The State later filed an Amended Information to include an alternative charge of operating a noncommercial vehicle with an alcohol concentration of 0.08 percent or more, also a felony.

¶ 8 Prior to trial, Favel filed a motion in limine requesting the court exclude evidence of preliminary breath test results and any argument by the prosecution that may shift the burden of proof from the state to the defense. In regard to the second part of her motion, Favel stated:

[A]lthough a failure to give a breath or blood test is admissible, any argument or comment by the State that Ms. Favel could have "proved his [sic] innocence" by giving a breath or blood test would be shifting of the burden to Ms. Favel to show his [sic] lack of criminal culpability.

In its response, the State did not object to the exclusion of the preliminary breath test results as Favel did not submit to a preliminary breath test. Regarding Favel's burden-shifting argument, the State contended that discussing the inference of intoxication is admissible evidence and does not shift the burden of proof onto the defendant. The State reasoned that § 61–8–404(2), MCA, "states that a refusal creates a rebuttable inference that the Defendant was under the influence" and "[s]uggesting to the jury that the Defendant refused because she was aware the result would be positive is exactly the type of inference a prosecutor may propose, and precisely the situation Mont.Code Ann. § 61–8–404(2) contemplates."

¶ 9 On the day of trial, prior to voir dire, the District Court considered and ruled from the bench on several outstanding motions. The court granted Favel's request to exclude evidence of the preliminary breath test. However, the court did not address the burden-shifting argument raised by Favel in the motion in limine. Instead, the court turned to other motions unrelated to this appeal. Favel did not bring the burden-shifting issue to the attention of the court or seek a ruling from the court.

¶ 10 At trial, the State called Sergeant Poulos to testify in its case-in-chief concerning the events of September 21, 2012. During direct examination with Sergeant Poulos, the prosecutor asked: "[D]id you give her an opportunity to provide a [breath] sample to clear her of driving under the influence?" Sergeant Poulos replied, "I did." Favel did not object to the prosecutor's question or move to strike.

¶ 11 During argument, the prosecutor discussed Favel's refusal to submit to a breath test by commenting on the circumstances of Favel's stop, her performance on the SFSTs, and the results of her blood test. The prosecutor argued:

These are all the signs of impairment that an officer is looking for in a DUI investigation. He saw them all. At this point, he turned to an instrument, a portable Breathalyzer test to determine the alcohol in her system. It is an instrument that could prove how much alcohol is in her system, could exonerate her, could prove her innocence.

The prosecutor then argued from the perspective of Sergeant Poulos:

He went to the next part of the investigation which was taking her to the Hill County Detention Center.... He said, I'm going to have you retake these tests. I will give you another opportunity to prove to me you're not impaired. She refused. He said, well, all right, I'm going to read to you the Montana Implied Consent law. It's basically another iteration of you have the right to provide a breath—basically, you have given consent to provide a breath sample. At the same time, the Montana Implied Consent says you have the right to get your own independent blood draw. You can double-check our work. She refused again an instrument which could prove her innocence and she refused.

Lastly, the prosecutor addressed the inference of intoxication in rebuttal, stating:

The next inference is that if a person refuses, you can infer that they are impaired, of course, obviously. Defense said the reason ... she refused was because she is fiercely protective of herself. She's fiercely protective of a blood sample that can prove her innocence? It's completely illogical, makes no sense.

Favel did not object to any of the prosecutor's statements during closing or rebuttal.

¶ 12 After a two-day trial, a Hill County jury found Favel guilty of felony DUI. The District Court sentenced Favel to the Montana Department of Corrections for a term of 13 months, followed by a suspended term of 3 years.


¶ 13 Generally, this Court does not address issues raised for the first time on appeal. However, when a defendant's fundamental rights are invoked, we may choose to invoke the common law plain error doctrine where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process. State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79. Plain error review is discretionary, and we apply it on a case-by-case basis. State v. Reim, 2014 MT 108, ¶ 29, 374 Mont. 487, 323 P.3d 880.


¶ 14 Did the prosecution improperly comment upon the inference of intoxication contained within § 61–8–404(2), MCA, and assert that Favel was responsible for establishing her innocence, thereby denying Favel her due process right to a fair and impartial trial?

¶ 15 Favel argues that the prosecutor's comments suggesting that she could have proven her innocence by providing a breath test to law enforcement were impermissible and constitute prosecutorial misconduct. She contends that the comments diluted her presumption of innocence and effectively shifted the burden of proof to her, reasoning that the comments go beyond discussing the rebuttable inference of a refusal contained within § 61–8–404(2), MCA.

¶ 16 In response, the State does not dispute that the prosecutor's comments were improper, but argues instead that Favel failed to preserve the issue for appeal because she did not contemporaneously object to the prosecutor's statements. The State asserts that, while a motion in limine may preserve an issue on appeal in some instances, Favel's motion in limine did not do so because the District Court did not definitively rule on her motion. Consequently, the State argues that Favel needed to object to the prosecutor's improper comments during trial in order to preserve her claims of prosecutorial misconduct.

¶ 17 Generally, "[a] defendant must make a timely objection to properly preserve an issue for appeal." State v. Paoni, 2006 MT 26, ¶ 35, 331 Mont. 86, 128 P.3d 1040 ; see also § 46–20–104(2), MCA. However, we have carved out an exception to the general rule under which a motion in limine may "preserve an issue for appeal in some instances even though a...

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