Submitted on Briefs: November 20, 2013
APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 11-187B Honorable Mike Salvagni, Presiding Judge
For Appellant: Wade Zolynski, Chief Appellate Defender; Gregory Hood, Assistant Appellate Defender; Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana, Marty Lambert, Gallatin County Attorney; Deborah Pratt, Deputy County Attorney; Bozeman, Montana
Jim Rice Justice
¶1 The State charged William R. Calvert (Calvert) with a fourth offense of driving under the influence of alcohol, a felony. The District Court for the Eighteenth Judicial District, Gallatin County, denied Calvert's motion to dismiss the felony charge, and Calvert subsequently pled guilty, reserving the right to appeal the District Court's ruling. We restate Calvert's sole issue on appeal as follows:
¶2 Did the District Court err by denying Calvert's motion to dismiss the felony DUI charge on the ground that two of his prior offenses were imposed under a Nevada statute not sufficiently similar to Montana's DUI statutes?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On September 2, 2011, Officer Courtis of the Bozeman Police Department received a tip from a pedestrian that a visibly intoxicated man was attempting to wash his car at the Chevron Super Save. Officer Courtis located the vehicle and followed it to a residence. Upon making contact with the driver, who eventually proved to be Calvert, Officer Courtis noticed a strong smell of alcohol emanating from the vehicle. Calvert stated that he had had "too much" to drink and provided a breath sample registering .223 blood alcohol content (BAC). Officer Courtis then arrested Calvert and took him to the police station for booking where he registered .226 BAC.
¶4 On September 23, 2011, the State charged Calvert with fourth-offense DUI, a felony pursuant to § 61-8-731(1), MCA. As the basis for the felony charge, the State cited Calvert's three prior DUI convictions in Nevada:
1. Carson City Justice Court, Nevada: Case No. A-09096, violation on March 7, 1996 (conviction on October 16, 1997), pursuant to Carson City Municipal Code 10.22.020.
2. First Judicial District Court, Carson City, Nevada: Case No. 98-00523C, violation on July 17, 1996 (convicted on July 20, 1998), pursuant to Nevada Revised Statutes 484.379.
3. Second Judicial District Court, Washoe County, Nevada: Case No. CR01-2520, violation on August 12, 2001 (convicted on March 1, 2002), pursuant to Nevada Revised Statutes 484.379.
Calvert admitted to these convictions, but moved to dismiss the felony charge on the ground that his second and third DUI convictions were premised on a Nevada statute that was not sufficiently similar to Montana's DUI and DUI per se statutes to constitute prior convictions for purposes of supporting a felony charge. The District Court rejected Calvert's argument, concluding that the Nevada ...