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State v. Farr

Supreme Court of Montana

August 15, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
EMMETT LEE FARR III, Defendant and Appellant.

          Submitted on Briefs: May 17, 2017

         APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 14-268 Honorable Gregory G. Pinski, Presiding Judge.

          For Appellant: Chad Wright, Chief Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana John W. Parker, Cascade County Attorney, Valerie M. Winfield, Deputy County Attorney, Great Falls, Montana

          OPINION

          LAURIE MCKINNON JUSTICE.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Emmett Lee Farr III (Farr) appeals his conviction for Driving Under the Influence (DUI), Fourth or Subsequent Offense, a felony in violation of § 61-8-401, MCA (2013). We affirm.

         ¶3 Farr was arrested on June 14, 2014, for DUI in Great Falls, Montana. Law enforcement discovered that Farr had previously been convicted of DUI in Georgia on four prior occasions: January 26, 1995; June 22, 1994; February 13, 1989; and July 22, 1986. Farr was charged with felony DUI.

         ¶4 On December 26, 2014, Farr moved to dismiss the felony DUI count, arguing that his DUI should have been charged as a misdemeanor because the Georgia and Montana statutes are dissimilar and thus the Georgia statute may not be used for sentencing enhancement. Farr's primary contention was that Georgia's DUI statute contained a subsection that had no counterpart in Montana's statute at the time of Farr's Georgia conviction-specifically Ga. Code Ann. § 40-6-391(a)(5) (1993), which prohibits driving or being in actual physical control of a vehicle while "there is any amount of marijuana or a controlled substance . . . present in the person's blood or urine, or both . . . ." On appeal, Farr also maintains that the State failed to meet its burden of establishing the specific subsection of the Georgia statute under which he was convicted. It appears the District Court struggled with discerning Farr's arguments. At a hearing held January 14, 2015, on Farr's motion to dismiss the felony count, the following exchange occurred between defense counsel and the District Court:

THE COURT: And so the provision that he was convicted under, [(a)(1)], is almost identical to the provision that exists in Montana law, which also just coincidentally happens to be Subsection (1)(a) of Montana's statute. Those two are virtually indistinguishable from one another.
MR. [V]an [D]er HAGEN: And I agree with the Court on that. We concede that point. We're not arguing that point. My point is this: the way -- the statute has to be read as a whole.
THE COURT: Okay

         ¶5 The District Court denied Farr's motion to dismiss, concluding that Farr was convicted pursuant to the subsection of Georgia's DUI statute pertaining to alcohol, not marijuana, and that the relevant portions of Georgia's and Montana's statutes relating to alcohol were similar and could therefore be used for sentencing enhancement.

         ¶6 On May 11, 2015, Farr entered a plea of guilty to the felony DUI charge, reserving his right to appeal the denial of his motion to dismiss. At the change of plea hearing, Farr's attorney reiterated Farr's right to contest the Court's consideration of Farr's prior DUI conviction in Georgia stating "there's some issue about the dates and time, Your Honor. But he's got three prior DUIs [sic] convictions. We're not disputing that." Farr was sentenced on July 1, 2015, following preparation of a Presentence Investigation Report (PSI), in which Farr told Probation Officer Reginald Voiles, who prepared the PSI, that he had never used any type of illegal drugs. At no point during the court's proceedings did Farr state that his DUI conviction was for anything other than an alcohol-type DUI. The District Court ...


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