State v. Hislop , 383 Mont. 482 ( 2016 )

May 31 2016
DA 15-0782
Case Number: DA 15-0782
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 130
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ANNE HISLOP,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 15-37(B)
Honorable Robert B Allison, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Anne Hislop, self-represented; Coram, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General; Helena, Montana
Edward J. Corrigan, Flathead County Attorney; Kalispell, Montana
Submitted on Briefs: May 11, 2016
Decided: May 31, 2016
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Anne Hislop (Hislop) appeals from the denial of a motion to dismiss an
aggravated DUI charge entered by the Flathead County Justice Court and affirmed by the
Eleventh Judicial District Court, Flathead County. We affirm.
¶2 We address the following issue:
Did Hislop’s aggravated DUI conviction violate the prohibition on ex post facto
laws?
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In 2007, Hislop’s license was suspended because she declined to submit to the
preliminary alcohol screening test after being arrested for DUI. Ultimately, she was
acquitted of the criminal charge after trial.
¶4 In 2011, the Montana Legislature enacted § 61-8-465, MCA, the aggravated DUI
statute. Section 61-8-465, MCA, provides that a person commits aggravated DUI if the
person operates a vehicle under the influence of alcohol and refuses to provide a breath or
blood sample as required under § 61-8-402, MCA, the implied consent law, and has had
his or her license suspended for a prior refusal to provide a breath or blood sample under
§ 61-8-402, MCA, within ten years of the current offense. Section 61-8-465(1)(d), MCA.
¶5 In 2013, Hislop was arrested for DUI. Hislop did not provide a breath or blood
sample as required under § 61-8-402, MCA. Hislop was charged with aggravated DUI
based on her 2007 refusal to submit a breath or blood test. Hislop filed a motion to
dismiss the charge on the ground it violated the prohibition on ex post facto laws. The
Justice Court denied the motion, reasoning that if Hislop were convicted she would be
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punished for her 2013 conduct—committing DUI and refusing a breath or blood test after
having refused a breath or blood test within the last ten years—rather than her 2007
conduct of refusing a breath or blood test. The jury convicted Hislop of aggravated DUI.
¶6 Hislop appealed the denial of her motion to dismiss to the District Court. The
District Court affirmed the Justice Court, agreeing the conviction did not violate the
prohibition on ex post facto laws. Hislop appeals.
STANDARD OF REVIEW
¶7 This Court’s review of constitutional issues is plenary. State v. Johnson, 2015 MT
221, ¶ 10, 380 Mont. 198, 356 P.3d 438.
DISCUSSION
¶8 Did Hislop’s aggravated DUI conviction violate the prohibition on ex post facto
laws?
¶9 Hislop argues that her conviction for aggravated DUI violates the prohibition on
ex post facto laws because her conviction relied upon the suspension of her driver’s
license following her 2007 refusal to submit to a test, which predated the enactment of
the aggravated DUI statute. The State argues Hislop’s conviction is not an ex post facto
application of the aggravated DUI statute because Hislop was punished for conduct that
occurred in 2013 after the enactment of the aggravated DUI statute. We agree with the
State.
¶10 Both the federal and Montana constitutions prohibit the ex post facto application
of laws. U.S. Const. Art. I, § 10; Mont. Const. art. II, § 31. A criminal law is ex post
facto if it (1) punishes as a crime an act that was not unlawful when committed;
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(2) makes punishment for a crime more burdensome; or (3) deprives a person charged
with a crime of any defense available under the law at the time the act was committed.
State v. Mount, 2003 MT 275, ¶¶ 24-25, 317 Mont. 481, 78 P.3d 829. Banning ex post
facto legislation serves two purposes: entitling people to a fair warning of what conduct
is punishable and preventing federal and state governments from passing arbitrary and
potentially vindictive laws. State v. Brander, 280 Mont. 148, 153, 930 P.2d 31, 35
(1996).
¶11 Hislop argues that § 61-8-465(1)(d), MCA, falls into the first of the
above-referenced three categories of ex post facto laws because it punished her criminally
for an act that was previously punished civilly. However, license revocation due to
refusal to submit to a breath or blood test remains a civil sanction, not a crime. See In re
Burnham, 217 Mont. 513, 518, 705 P.2d 603, 607 (1985). Hislop is not being punished
for her refusal to submit to a breath or blood test in 2007. Instead, Hislop is being
punished for driving under the influence of alcohol and refusing a breath or blood test
when she had her license suspended for refusing a breath or blood test within the last ten
years. The Legislature gave Hislop “fair warning” that this conduct was punishable two
years prior to her actions. Brander, 280 Mont. at 153, 930 P.2d at 35. Hislop’s act was
therefore unlawful when it was committed.
¶12 Hislop argues in the alternative that § 61-8-465(1)(d), MCA, falls into the second
category of ex post facto laws because it increased the punishment for her 2007 refusal to
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submit to a breath or blood test.1 However, a law’s reliance on prior behavior that
occurred before the law was passed does not violate the prohibition on ex post facto laws
where the law punishes conduct that occurs after the law was passed. See Brander, 280
Mont. at 154, 930 P.2d at 35 (“[S]imply because a statute operates on events antecedent
to its effective date does not make the statute ex post facto, nor does such operation make
a law prohibitively retroactive.”). Because § 61-8-465(1)(d), MCA, merely takes into
account Hislop’s 2007 behavior while punishing her 2013 conduct, it does not constitute
ex post facto legislation.
¶13 Affirmed.
/S/ JIM RICE
We concur:
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
1
Hislop’s arguments are somewhat inconsistent in that she argues a license revocation is a civil
sanction as applied to the first category of ex post facto laws, but is a criminal punishment as
applied to the second category of ex post facto laws.
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