State v. Miller

• Decision Date: 01 April 2008
• Docket Number: No. DA 07-0140.,DA 07-0140.
• Citation: State v. Miller, 2008 MT 106, 181 P.3d 625, 342 Mont. 355 (Mont. 2008)
• Parties: STATE of Montana, Plaintiff and Appellee, v. Garry Russell MILLER, Defendant and Appellant.
• Court: Montana Supreme Court

181 P.3d 625

2008 MT 106

342 Mont. 355

STATE of Montana, Plaintiff and Appellee, v. Garry Russell MILLER, Defendant and Appellant.

No. DA 07-0140.

Supreme Court of Montana.

Submitted on Briefs February 13, 2008.

Decided April 1, 2008.

For Appellant: Jim Wheelis, Chief Public Defender, Lisa S. Korchinski, Assistant Public Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Dennis Paxinos, Yellowstone County Attorney, Juli M. Pierce, Deputy County Attorney, Billings, Montana.

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

¶ 1 Garry Russell Miller was tried and convicted in the District Court for the Thirteenth Judicial District, Yellowstone County, of driving a motor vehicle while under the influence of alcohol and/or drugs, driving while license was suspended or revoked, and operating a motor vehicle without proof of liability insurance in effect. He now appeals raising an issue related to one of the jury instructions given at his trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 At approximately midnight on February 15, 2006, Yellowstone County Deputy Sheriff Patrick Korb observed a pickup being driven irregularly on Second Avenue North in Billings, Montana. At one point, the driver, who Korb later ascertained was Miller, weaved to the right and nearly struck a car parked on the side of the street. Korb turned on his in-car video camera and followed the pickup as it turned south on 22nd Street and then east on Montana Avenue. When Miller drove straight through an intersection while in a right-turn-only lane on Montana Avenue, Korb initiated a traffic stop.

¶ 3 Upon making contact with Miller, Korb observed that Miller was having difficulty sorting through some paperwork he had retrieved out of his glove box. Miller initially gave a number of unresponsive answers to Korb's questions about where he was coming from and where he was headed, but Miller eventually stated that he had just come from Andy's Bar, where he had drunk roughly a pitcher of beer. Korb noticed that Miller's speech was slurred, that his eyes were red and glossy, that he seemed unable to concentrate, and that his motor skills were diminished. Miller was unable to provide proof of liability insurance. In addition, a records check revealed that Miller's driver's license had been revoked.

¶ 4 Korb had Miller step out of the pickup, at which point Korb smelled the odor of an alcoholic beverage on Miller's breath. He asked Miller to attempt a number of field sobriety tests and observed that Miller swayed from side to side, had difficulty following Korb's instructions, and had difficulty maintaining his balance. Midway through the second test (the walk and turn), Miller stated that he did not want to continue with these tests. Korb then asked Miller to take a preliminary breath test, but Miller declined.

¶ 5 Based on Miller's driving, slurred speech, inability to concentrate, lack of balance, inability to follow Korb's instructions, and statements about drinking at Andy's Bar, Korb placed Miller under arrest for driving a motor vehicle while under the influence of alcohol or drugs ("DUI") and transported him to the Yellowstone County Detention Facility's DUI Center. While there, Miller declined to reattempt any of the field sobriety tests. Korb advised Miller of Montana's implied consent law (see § 61-8-402, MCA) and asked him to take a breath test, but Miller again refused.

¶ 6 The State charged Miller by information on February 17, 2006, with DUI, fourth or subsequent offense, a felony, in violation of § 61-8-401, MCA (Count I); driving while license suspended or revoked, a misdemeanor, in violation of § 61-5-212, MCA (Count II); and driving a motor vehicle without a valid policy of liability insurance in effect, a misdemeanor, in violation of § 61-6-301, MCA (Count III). Miller pleaded not guilty, and the case proceeded to trial on November 28, 2006, concluding the following day.

¶ 7 At the close of all the evidence, the District Court read 17 instructions to the jury. At issue on this appeal is Instruction No. 12, which was offered by the prosecution and stated as follows:

Refusal of a Breath or Blood Test or Physical Test.

If a person refuses to submit to a physical test or a test of their breath or blood for alcohol concentration, such a refusal is admissible evidence. You may infer from the refusal that the person was under the influence. The inference is rebuttable.

¶ 8 Miller objected to this instruction on the ground that it violated his Fifth Amendment right against self-incrimination and his right to due process under the Fourteenth Amendment. Miller explained that in his view, this instruction undermined the other instructions regarding the State's burden of proof and placed on Miller the burden of having to prove his innocence by giving a breath test. In response, the prosecutor argued that the instruction derived from § 61-8-404(2), MCA, and was not unconstitutional in light of this Court's decision in City of Great Falls v. Morris, 2006 MT 93, 332 Mont. 85, 134 P.3d 692. The court ultimately overruled Miller's objection.

¶ 9 The jury found Miller guilty on all three counts, and the District Court sentenced him on January 8, 2007. This appeal followed.

ISSUE

¶ 10 The sole issue on appeal is whether the District Court erred in overruling Miller's objection to Instruction No. 12.

STANDARD OF REVIEW

¶ 11 District courts have broad discretion in formulating jury instructions. State v. Archambault, 2007 MT 26, ¶ 25, 336 Mont. 6, ¶ 25, 152 P.3d 698, ¶ 25. However, that discretion is ultimately restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law. Archambault, ¶ 25; see also State v. Michaud, 2008 MT 88, ¶ 16, 342 Mont. 244, ¶ 16, 180 P.3d 636, ¶ 16. Jury instructions that relieve the State of its burden to prove every element of the charged offense beyond a reasonable doubt violate the defendant's due process rights. Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218 (1989) (per curiam); see also State v. McCaslin, 2004 MT 212, ¶ 24, 322 Mont. 350, ¶ 24, 96 P.3d 722, ¶ 24. The issue of whether a defendant's due process rights were violated is a question of law. McCaslin, ¶ 14. Our review of a district court's conclusions of law is de novo; we determine whether the court's interpretation and application of the law were correct. State v. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, ¶ 119, 167 P.3d 815, ¶ 119.

DISCUSSION

¶ 12 Under § 61-8-404(1), MCA, the following may be admissible in a DUI trial: evidence of any measured amount or detected presence of alcohol, drugs, or a combination of alcohol and drugs in the defendant at the time of a test, as shown by an analysis of the defendant's blood or breath; a report of the facts and results of one or more tests of the defendant's blood or breath; and a report of the facts and results of a physical, psychomotor, or physiological assessment of the defendant. The statute places a number of conditions on the admissibility of such evidence. In addition, and of particular relevance here, § 61-8-404(1)(a), MCA, limits the use of a blood or breath test result as follows:

A positive test result does not, in itself, prove that the person was under the influence of a drug or drugs at the time the person was in control of a motor vehicle. A person may not be convicted of a violation of 61-8-401 based upon the presence of a drug or drugs in the person unless some other competent evidence exists that tends to establish that the person was under the influence of a drug or drugs while driving or in actual physical control of a motor vehicle within this state.

¶ 13 Section 61-8-404(2), MCA, in turn, states as follows:

If the person under arrest refused to submit to one or more tests as provided in this section, proof of refusal is admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of alcohol and drugs. The trier of fact may infer from the refusal that the person was under the influence. The inference is rebuttable.

¶ 14 In City of Great Falls v. Morris, 2006 MT 93, 332 Mont. 85, 134 P.3d 692, this Court analyzed § 61-8-404, MCA, as follows:

Analyzing this statute as a whole, we conclude that subsection (2) must be read as requiring the production of other competent corroborating evidence of a DUI. In light of the fact that subsection (1)(a) requires corroborating evidence when a person actually takes a drug test, to interpret subsection (2) as not requiring corroborating evidence when a person refuses to take the test would create an absurd result. In this case, the State presented corroborating evidence that Morris was driving while under the influence, including testimony from law enforcement that Morris exhibited erratic driving, slurred speech, red eyes and the odor of alcohol on his breath.

Moreover, we note that the admissibility of a defendant's refusal to take a breathalyzer test presupposes other competent evidence in the form of probable cause to make the arrest in the first instance—in this case, poor driving, slurred speech, red eyes and the odor of alcohol. Although Morris provides an explanation for his behavior and appearance, he has not challenged the probable cause to make the arrest.

Morris, ¶¶ 21-22. We thus held that the district court did not err in instructing the jury on the provisions of § 61-8-404(2), MCA.

¶ 15 In the District Court, Miller asserted that Morris was "wrongly decided." Again on appeal, Miller suggests that while Morris provides "a better understanding" of § 61-8-404(2), MCA, this statute ...