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City of Missoula v. Williams

Supreme Court of Montana

November 17, 2017

CITY OF MISSOULA, Plaintiff and Appellee,
JUSTIN WILLIAMS, Defendant and Appellant.

          Submitted on Briefs: August 9, 2017

         APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-16-272 Honorable Karen Townsend, Presiding Judge

          For Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant Attorney General, Helena, Montana Jim Nugent, Missoula City Attorney, Doug Schaller, Deputy City Attorney, Missoula, Montana


          Laurie McKinnon Justice

         ¶1 Justin Williams (Williams) appeals from an order entered by the Fourth Judicial District Court, Missoula County, affirming the Municipal Court of the City of Missoula's denial of his motion to suppress blood evidence in a DUI proceeding against him. We affirm.

         ¶2 Williams presents the following issues for our review:

1. Whether the District Court erred in affirming a telephonic search warrant issued pursuant to § 61-8-402(5), MCA, to draw Williams's blood.
2. Whether the District Court erred in failing to consider the merits of Williams's contention that he did not receive the implied consent advisory prior to his blood draw.


         ¶3 On January 24, 2016, at 2:48 a.m., Missoula Police Deputy Jenna Volinkaty (Volinkaty) observed Williams speeding in a rental truck, lose control of the vehicle, collide with a utility pole and tree, and attempt to leave the scene. Using a radar device before the collision, Volinkaty measured Williams traveling between 50 and 55 miles per hour and another officer measured him traveling at 70 miles per hour and accelerating. The speed limit in the area is 30 miles per hour. Volinkaty smelled alcohol on Williams's breath, saw that his eyes were glassy, watery, and bloodshot, his clothing was soiled, that he could not maintain his balance, and heard Williams slur his words. Volinkaty arrested Williams for suspected DUI. Williams admitted he had consumed alcohol, but refused to take an Intoxilyzer breath test. Volinkaty learned that in 2008, Williams was convicted of an alcohol-related driving offense under Arizona Revised Statute § 28-1381.

         ¶4 Volinkaty contacted Judge Marie Anderson to obtain a telephonic search warrant to draw Williams's blood. In her affidavit, Volinkaty described seeing Williams speeding, travelling 50-55 miles per hour, losing control, and crashing into a utility pole at 2:48 a.m.; Williams being taken into custody after he attempted to flee; observing symptoms of his impairment including watery, bloodshot eyes, slurred speech, staggering movements, soiled clothing, and mood swings. Volinkaty also notified Judge Anderson that "the suspect has a prior conviction for DUI or substantially similar offense on 11/20/2008 in Arizona." Judge Anderson authorized the issuance of the search warrant and Volinkaty executed it by having Williams's blood drawn. Williams had a blood alcohol content (BAC) of 0.197.

         ¶5 The City of Missoula (the City) charged Williams with aggravated DUI pursuant to § 61-8-465, MCA; reckless driving pursuant to § 61-8-301, MCA; and refusing to submit to a blood or breath test pursuant to § 10.56.020 of the Missoula Municipal Code. Williams filed a motion to suppress the blood draw evidence arguing it was obtained pursuant to a search warrant that relied on a previous conviction from Arizona that "does not qualify as a 'similar' offense under Section 61-8-402(5)." The Municipal Court denied Williams's motion to suppress "conclud[ing] that the Arizona DUI conviction could be considered a 'similar' offense for purposes of seeking a telephonic search warrant." In its order, the Municipal Court recognized, however, that under State v. McNally, 2002 MT 160, 310 Mont. 396, 50 P.3d 1080, the Arizona conviction could not be used to enhance Williams's DUI sentence to a felony. Reserving his right to appeal the adverse determination on his motion to suppress, Williams pleaded no contest to aggravated DUI. The City dismissed the remaining two charges. The Municipal Court sentenced Williams to six months in jail with all but five days suspended and imposed a fine of $1, 000.

         ¶6 Williams appealed the Municipal Court's order denying his motion to suppress to Montana's Fourth Judicial District Court, Missoula County, and made an additional argument that "Officer Volinkaty failed to include in her Affidavit of Probable Cause that she had read to [Williams] the Implied Consent Advisory and therefore information about his refusal is called into question." The District Court affirmed the Municipal Court's order denying Williams's motion to suppress on the same grounds as the Municipal Court, concluding that the Arizona statute is "similar" to Montana's DUI statute "for the purposes of being able to seek a telephonic search warrant under the auspices of Mont. Code Ann. §61-8-402(5)." The District Court declined to address Williams's additional argument "[b]ecause this issue was not previously raised and the municipal court had no opportunity to rule on the issue . . . ."

         ¶7 Williams appeals.


         ¶8 On appeal from a municipal court, the district court functions as an intermediate appellate court. Sections 3-5-303, 3-6-110, MCA; City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. When a district court acts as an intermediate appellate court, "[t]he appeal is confined to review of the record and questions of law, subject to the supreme court's rulemaking and supervisory authority." Section 3-6-110(1), MCA. Our review of the case is as if the appeal was originally filed in this Court and we examine the record independently of the district court's decision. Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. This Court reviews a ruling on a motion to suppress evidence to determine whether the court's findings of fact are clearly erroneous and whether the court's interpretation and application of the law are correct. State v. Marcial, 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69. Although we will review the municipal court record as if the appeal was originally filed in this Court, our disposition pertains to the order of the district court from which the appeal is taken.


         ¶9 1. Whether the District Court erred in affirming a telephonic search warrant issued pursuant to § 61-8-402(5), MCA, to draw Williams's blood.

         ¶10 Williams challenges the legality of the search warrant application that allowed his blood to be drawn. Williams contends on appeal that, under McNally, Arizona and Montana's DUI statutes are not "similar" and, without similarity, there was insufficient evidence to authorize a blood draw under § 61-8-402(5), MCA. Therefore, Williams concludes, "the search warrant was illegal and the blood draw results should have been suppressed."

         ¶11 The City responds that McNally is distinguishable because it addressed "similarity" for sentencing purposes only, not for obtaining search warrants pursuant to § 61-8-402(5), MCA. The City also contends, based upon the statutory history of § 61-8-402(5), MCA, that Arizona and Montana's DUI statutes are similar. The City concludes that construing Arizona and Montana's DUI statutes as not similar would frustrate the Legislature's intent when it authorized the drawing of a person's blood pursuant to the provisions of § 61-8-402(5), MCA.

         ¶12 While we ultimately conclude that McNally is not dispositive of the issue before us, some discussion of McNally and its progeny are necessary to understand the legal inquiry required in assessing the similarity of another state's statutes with ours and whether such an inquiry is appropriate in deciding if a search warrant should issue. The statute at issue in McNally was a sentencing enhancement statute, § 61-8-734(1)(a), MCA, which elevates a DUI offense to a felony if the offender has three or more prior convictions under certain Montana laws or "a similar statute or regulation in another state." McNally, ¶ 11 (quoting § 61-8-734(1)(a), MCA). McNally was charged with a fourth or subsequent DUI after having previously received four Driving While Ability Impaired (DWAI) convictions in Colorado. McNally, ΒΆ 3. Because Colorado law provides a DWAI offense and Montana's law does not, McNally argued on appeal that his prior convictions for DWAI "did not constitute ...

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