State v. Reams

• Decision Date: 22 September 1997
• Docket Number: No. 96-605,96-605
• Parties: STATE of Montana, Plaintiff and Appellant, v. Michael Douglas REAMS, Defendant and Respondent.
• Court: Montana Supreme Court

Page 52

945 P.2d 52

284 Mont. 448

STATE of Montana, Plaintiff and Appellant, v. Michael Douglas REAMS, Defendant and Respondent.

No. 96-605.

Supreme Court of Montana.

Submitted on Briefs March 20, 1997.

Decided Sept. 22, 1997.

Marty Lambert, Gallatin County Attorney, Bozeman; Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, for Plaintiff and Appellant.

Derik Pomeroy, Morgan, Cameron & Weaver, Bozeman, for Defendant and Respondent.

NELSON, Justice.

This is an appeal from the Eighteenth Judicial District Court, Gallatin County. On August 30, 1996, the District Court entered an order expunging a 1975 DUI conviction from Defendant Reams' record and dismissing a charge of felony DUI, fourth offense. From this order, the State appeals. We affirm.

The sole issue raised on appeal is whether the District Court erred in granting Defendant Reams' motion to expunge his 1975 DUI conviction and dismissing the charge of felony DUI, fourth offense.

FACTUAL AND PROCEDURAL BACKGROUND

On May 19, 1996, Defendant Reams (Reams) was arrested for multiple offenses including driving while under the influence of alcohol (DUI). Reams' driving record contained

three previous DUI convictions: July 1975, March 1990 and May 1990. Consequently, on May 30, 1996, an Information was filed charging Reams with felony DUI, fourth offense, in violation of § 61-8-401, MCA, (Count 1). Additionally, Reams was charged with driving with a revoked driver's license, a misdemeanor, in violation of § 61-5-212, MCA, (Count 2); operating a motor vehicle without mandatory liability insurance, a misdemeanor, in violation of § 61-6-301, MCA, (Count 3); and operating an unregistered motor vehicle, a misdemeanor, in violation of § 61-3-301, MCA, (Count 4). On June 12, 1996, Reams entered pleas of not guilty to all charges. On July 19,1996, Reams filed a motion to expunge his 1975 DUI conviction to which the State filed a brief in opposition on July 30, 1996. The District Court held a hearing on the motion on July 31, 1996. Subsequently, on August 30, 1996, the District Court entered an order granting Reams' motion to expunge and dismissing Count 1 of the Information. From this order, the State appeals.

STANDARD OF REVIEW

Reams' motion to expunge his 1975 DUI conviction also, in substance, constituted a motion to dismiss the charge of felony DUI, fourth offense, brought under § 61-8-401, MCA (1995). 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 decisions in Brander and in State v. Bowles (Mont. No. 96-418, decided September 22, 1997), --- Mont. ----, --- P.2d ----, we hold that the District Court correctly concluded that Reams' 1975 DUI conviction should have been expunged in 1981 pursuant to § 61-8-714(5), MCA (1981), and, therefore, the District Court properly dismissed the charge of felony DUI, fourth offense.

DISCUSSION

Did the District Court err in granting Reams' motion to expunge his 1975 DUI conviction and dismissing 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 August 30, 1996 Order, the District Court concluded that the issue in the case at bar was not whether §§ 61-8-714(4) and (6), MCA (1995), constitutes ex post facto legislation, but rather whether the defendant's 1975 DUI conviction "has disappeared from the books [pursuant to § 61-8-714(5), MCA (1981) ], so that it may not be counted toward a fourth offense [under § 61-8-714(6), MCA (1995) ]." Additionally, the District Court determined that the specific provisions of § 61-8-714(5), MCA (1981), concerning expungement of DUI conviction records controlled over the more general provisions of the Criminal Justice Information Act, §§ 44-5-101, et seq., MCA, concerning expungement and retention of criminal records. Furthermore, the court explained that the case at bar was more analogous to cases involving juvenile records that are sealed automatically than to cases involving a defendant who is required to file a motion or petition for judicial expungement. Consequently, the District Court held that Reams' 1975 DUI conviction should have been expunged at the time of the enactment ofs 61-8-714(5), MCA (1981), and, therefore, held that Reams' 1975 DUI conviction could not now be counted to support the charge of felony DUI, fourth offense, brought under § 61-8-401, MCA. Accordingly, the District Court dismissed Count 1.

The State argues that the District Court erred in granting Reams' motion to expunge his 1975 DUI conviction. The State asserts that because the expungement provision of § 61-8-714(5), MCA (1981), was not in effect at the time of Reams' 1975 DUI conviction and was repealed in 1989, the District Court incorrectly concluded that Reams' 1975 DUI conviction should have been expunged automatically in 1981, when the expungement provision of § 61-8-714(5), MCA (1981), became effective. Relying on Brander, the State specifically contends that because § 61-8-714(5), MCA (1981), was not in effect at the time Reams committed the offense of DUI in 1975, Reams did not have any statutory right to the subsequent expungement of the 1975 DUI conviction from his record once this amendment became effective in 1981. Therefore, the State argues that Reams' 1975 DUI conviction may be counted for the purposes of presently charging Reams with felony DUI, fourth offense.

Furthermore, the State argues that merely reviewing the plain meaning of the words contained within § 61-8-714(5), MCA (1981), does not resolve the issue of whether this statute is applicable to pre-1981 DUI convictions. Instead, relying on Neel v. First Federal Sav. and Loan Assoc. (1984), 207 Mont. 376, 675 P.2d 96, the State argues that if § 61-8-714(5), MCA (1981), is applied to pre-1981 DUI convictions it would have a retroactive effect because this amendment imposed a new duty of expungement upon the State. Consequently, the State maintains that under Neel, this retroactive application may only be validated by a legislative intent for the statute to applying such a manner. However, the State asserts that such legislative intent does not exist here. Rather, the State contends that this Court's rationale in Brander suggests that § 61-8-714(5), MCA (1981), created a vested substantive right with a corresponding duty on the part of the State, and, therefore, should only be applied prospectively. Consequently,the State argues that because Reams' 1975 DUI conviction occurred before § 61-8-714(5), MCA (1981), became effective, Reams is not entitled to have his 1975 DUI conviction expunged from his record, and, therefore, Reams' 1975 DUI conviction may be counted to support the present felony DUI charge against him.

In fact, the State argues that State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, is factually similar, and, therefore, provides guidance here. The State acknowledges that in Lorash the expungement provision of § 46-18-204, MCA (1987), required a defendant to affirmatively request expungement, whereas the expungement provision of § 61- 8-714(5), MCA (1981), at issue here, was self-executing. However, the State argues that our decision in Lorash did not turn upon this distinction, but rather turned upon the unavailability of the expungement procedure because the statute was repealed before the defendant's prior conviction was considered for sentencing purposes. Consequently, the State asserts that here, like in Lorash, because the expungement provision of § 61-8-714(5), MCA (1981), was repealed in 1989, Reams...