March 18 2008
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 88
STATE OF MONTANA,
Plaintiff and Appellee,
Defendant and Appellant.
District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 2005-551
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
Richard R. Buley, Tipp & Buley, Missoula, Montana
Hon. Mike McGrath, Montana Attorney General, Carol E. Schmidt,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Suzy Boylan-Moore,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: July 25, 2007
Decided: March 18, 2008
Justice Patricia O. Cotter delivered the Opinion of the Court.
In April 2006 a jury in the Fourth Judicial District Court, Missoula County,
convicted Gerrad Michaud of the misdemeanor offense of Operating a Motor Vehicle
While Under the Influence of Alcohol or Drugs. He appealed his conviction on several
grounds. We affirm in part and reverse and remand in part.
A restatement of the issues on appeal is:
Did the District Court abuse its discretion when it limited counsels’ voir dire time
to fifteen minutes?
Did the District Court abuse its discretion by allowing police officer testimony
pertaining to the Horizontal Gaze Nystagmus (HGN) test?
Does the inference contained in § 61-8-404(2), MCA, whereby a jury may infer
that a defendant was driving under the influence of alcohol from his refusal to take a
sobriety test, violate a defendant’s due process rights?
Does the inference contained in § 61-8-404(2), MCA, deny a defendant his right to
counsel at a critical stage of the prosecution or violate a defendant’s right not to be
compelled to give testimony against himself?
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2005, a motorist observed a truck being driven erratically along
Highway 200 near Missoula, Montana. After following the truck for some distance, the
motorist called 911 to notify authorities. Officer Johnson responded to the call and upon
seeing a vehicle that matched the description given by the motorist began to follow the
vehicle. According to the Officer’s report, he saw the truck cross the white fog line
repeatedly and noticed that the license plate was blocked and the truck was missing a
driver side mirror. Before Johnson executed a stop, the truck, subsequently determined to
be driven by Michaud, pulled off the road and into a parking lot. At that time, Johnson
activated his vehicle’s overhead emergency lights and pulled in behind Michaud.
At trial, Johnson explained that he approached the vehicle and when speaking to
Michaud, noticed the truck smelled of alcohol. Johnson’s incident report also indicated
that he smelled alcohol on Michaud’s breath. When Michaud opened the door to get in
the back of the truck for his wallet, the officer saw a beer can in the truck cab. Johnson
testified that Michaud had difficulty maintaining his balance when he got out of the truck
and needed to use his truck to stabilize himself. Michaud volunteered that there was an
outstanding warrant on him but denied drinking when Johnson asked him.
thereafter, however, he confessed that he had been drinking earlier in the day while
tubing on a river. Johnson asked Michaud to perform three field sobriety tests—the
HGN, the walk and turn, and the one-legged stand. Michaud did not perform well on any
of these tests. After informing Michaud of the consequences of refusing to take a breath
test, Johnson asked Michaud to take a portable breath test. Michaud refused.
Johnson arrested Michaud on the outstanding warrant and for driving while under
the influence of alcohol and transported him to the Missoula County jail. Upon arrival
Johnson had Michaud take the three field sobriety tests again and again Michaud failed
these tests. Johnson also asked Michaud to take the breath test and again Michaud
refused. Michaud was charged with driving under the influence of alcohol or drugs.
Michaud was convicted in Justice Court in November 2005 for second offense
misdemeanor driving under the influence. He appealed this conviction immediately to
the Fourth Judicial District Court in Missoula County where a jury trial was held on April
28, 2006. At the commencement of proceedings, the District Court judge informed the
attorneys that each attorney would have fifteen minutes to voir dire the jury. He also
indicated that it was his practice to ask a standard set of questions during voir dire as
well. Michaud objected to the fifteen-minute limitation but the District Court overruled
the objection. At the conclusion of the trial, the jury convicted Michaud of misdemeanor
driving under the influence.
Michaud filed a timely appeal.
Additional facts will be presented as needed for our analysis.
STANDARDS OF REVIEW
It is well established that “[a]bsent an abuse of discretion . . . the trial judge has
great latitude in controlling voir dire.” State v. LaMere, 190 Mont. 332, 339, 621 P.2d
462, 466 (1980). We therefore review the District Court’s imposition of a time limit on
voir dire to determine whether this limitation constitutes an abuse of discretion.
We review rulings on the admissibility of evidence, including oral testimony,
under an abuse of discretion standard. We leave the determination of the relevancy and
admissibility of evidence to the sound discretion of the trial judge and we will not
overturn it absent a showing of abuse of discretion. State v. Damon, 2005 MT 218, ¶ 12,
328 Mont. 276, ¶ 12, 119 P.3d 1194, ¶ 12 (citations omitted).
Statutes enjoy a presumption of constitutionality; therefore the party making the
constitutional challenge bears the burden of proving, beyond a reasonable doubt, that the
statute is unconstitutional, and any doubt must be resolved in favor of the statute. When
reviewing a question of constitutional law, including the issue of whether a defendant’s
due process rights were violated, we review the district court’s conclusion to determine
whether its interpretation of the law was correct. Shammel v. Canyon Resources Corp.,
2007 MT 206, ¶ 7, 338 Mont. 541, ¶ 7, 67 P.3d 886, ¶ 7; City of Great Falls v. Morris,
2006 MT 93, ¶ 12, 332 Mont. 85, ¶ 12, 134 P.3d 692, ¶ 12 (citations omitted).
Lastly, we review jury instructions in a criminal case to determine whether the
instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case.
Further, we recognize that a district court has broad discretion when it instructs a jury,
and we therefore review a district court’s decision regarding jury instructions to
determine whether the court abused that discretion. State v. Swann, 2007 MT 126, ¶ 32,
337 Mont. 326, ¶ 32, 160 P.3d 511, ¶ 32 (citation omitted).
Did the District Court abuse its discretion when it limited counsels’ voir dire time
to fifteen minutes?
Michaud argues that the District Court denied him a fair trial before an impartial
jury by limiting his right to voir dire the jury to fifteen minutes. He asserts that the
limited time made it impossible for him “to examine a 12 person jury panel for possible
bias and prejudice,” to determine if jurors should be excused for cause, and to exercise
peremptory challenges “intelligently.” He argues that § 46-16-114(2), MCA, allows a
trial court to limit voir dire only “if the examination is improper.” He opines that because
the court imposed a time limit before questioning began, there was no opportunity for
such impropriety to occur, and therefore the court abused its discretion. Michaud further
maintains that the court limited the time for voir dire for purely expeditious reasons,
which is contrary to this Court’s observation in State v. Nichols, 225 Mont. 438, 734 P.2d
The State counters that the court offered adequate time for voir dire, in light of the
court’s examination of prospective jurors. It points to extra-jurisdictional cases holding
that courts have the discretion to set reasonable limits and that Michaud was not deprived
of his constitutional right. It proposes that we adopt a four-prong test used by the Oregon
Supreme Court in determining whether a trial court had abused its discretion by placing
time limits on voir dire. Under the circumstances of this case, we need not adopt this test
to reach a resolution.
As a six-person jury was required to hear this misdemeanor case, twelve
prospective jurors were seated initially for voir dire. The District Court indicated, prior
to voir dire and outside the presence of potential jurors, that each side would have fifteen
minutes to conduct voir dire after the court had conducted its voir dire. The judge noted
that, prior to trial, he had invited each side to offer written voir dire questions but that
neither counsel had accepted the invitation. The court explained that the time spent on a
In Nichols, we stated, “The voir dire process, especially in cases given a great amount of
publicity, is essential to ensure that defendant is adjudged by fair and impartial jurors. It is this
objective for which the court must strive, not expeditious selection of a jury.” Nichols, 225
Mont. at 445, 734 P.2d at 174.
“for cause” challenge would not be counted nor would time spent with individual
prospective jurors discussing relevant “privacy” issues be counted against the fifteenminute limit.
At this time, Michaud’s counsel objected to the time limit based on Nichols and
the amount of publicity generally given to “drinking and driving” concerns. The court
remarked that it was unaware of any specific publicity surrounding this case but that it
would pursue that concern in its voir dire. The judge indicated multiple times that he
would “remain flexible throughout the [voir dire] process” but believed it was necessary
that they were “cognizant of the amount of time that jurors spend in these cases and the
need to keep cases moving.” He agreed to ask additional questions presented by counsel
so that counsel could preserve their fifteen minutes for other questions.
Michaud’s lawyer nor the State’s attorney presented questions for the judge to ask.
The court asked the prospective jurors questions pertaining to the following
matters: (1) whether all were Missoula County residents; (2) had any been convicted of
malfeasance in office or a felony or other high crime; (3) whether any knew the attorneys
or the defendant, and if so, would any existing relationship affect how the juror viewed
the case or weighed the evidence or the juror’s ability to be fair; (4) if any relationships
among the prospective jurors would prevent them from working together; (5) whether
any were employed by law enforcement or had a close relationship with someone in law
enforcement, and if so, whether this would affect the juror’s ability to listen and evaluate
testimony in this case; (6) whether any had experience with DUI in their personal lives or
the lives of a close friend or family member, and if so, if such experience would
predispose them to one side in this case; (7) whether any had previously served on a jury,
and if so, what kind of case, what was the outcome and whether there was anything about
this prior service that would affect their ability to be a fair and impartial juror; (8) if they
understand the concepts of “presumed innocent,” “proof beyond a reasonable doubt,” the
State’s burden, and the right of the defendant to refrain from testifying; (9) whether any
were members of the Fully Informed Jury Movement or wished to be; (10) whether any
had heard about the defendant and this offense; (11) whether any had had previous
experience with the justice system that might affect their ability to meaningfully
participate in this proceeding; and (12) whether any had any particular life experience or
issue that would divert them from the case. During private discussions with individual
jurors conducted during the court’s voir dire, both counsel were able to ask specific
questions of the jurors that allowed the attorneys to exercise cause and peremptory
Following the court’s voir dire, the prosecutor conducted voir dire within the
allotted fifteen minutes.
Subsequently Michaud’s counsel conducted voir dire.
Michaud’s attorney questioned prospective jurors about the possibility of bias toward the
State’s less experienced attorney and the need to hold the State to its burden of proof. He
questioned the jury pool about the existence of bias against criminal defense lawyers in
general and prejudice derived from aggressive advertising campaigns against drinking
and driving. Counsel also queried whether the jurors believed that erratic driving could
be caused by something other than drinking, such as talking on a cell phone, and whether
they could believe someone could be innocent even though charged with a crime. His
closing questions to the jury pool addressed reasonable doubt.
At thirteen minutes, the court notified counsel that he had two minutes remaining
in his voir dire. At fifteen minutes, counsel was told that his time was up. He enquired
whether he had asked an improper question, was told that he had not, and pressed for
additional time. The court allowed him to ask two more questions and upon completion,
counsel passed the panel for cause.
During the voir dire process, two jurors were excused for cause and each side
challenged three jurors apiece, all of whom were dismissed.
The purpose of voir dire in a criminal case is to determine the existence of a
prospective juror’s partiality. As such, adequate questioning in voir dire enables counsel
to properly raise a challenge for cause and to intelligently exercise peremptory
challenges. State v. Lamere, 2005 MT 118, ¶ 15, 327 Mont. 115, ¶ 15, 112 P.3d 1005,
¶ 15 (citations omitted). However, it is also the responsibility of the trial court to oversee
the administration of trials and proceedings. In re Marriage of Weber, 2004 MT 206,
¶ 14, 322 Mont. 324, ¶ 14, 95 P.3d 694, ¶ 14 (citations omitted); Hegwood v. Mont.
Fourth Jud. Dist. Court, 2003 MT 200, ¶ 16, 317 Mont. 30, ¶ 16, 75 P.3d 308, ¶ 16
(citations omitted). While we do not encourage courts to impose time limits on voir dire
in the name of expeditiousness, we conclude that under the circumstances here, the court
did not abuse its discretion in imposing reasonable time limits on voir dire.
This was a misdemeanor DUI case. While this fact alone may not justify a time
limitation, it is a relevant factor. More importantly, the District Court engaged in a
comprehensive voir dire before turning the jury over to counsel; thus, many of the areas
of inquiry which counsel would otherwise normally explore were covered in advance by
the court. In addition, counsel had the opportunity to engage in a colloquy with the jurors
regarding potential bias and prejudice as well as the jury’s understanding of the concepts
of “reasonable doubt,” “innocent until proven guilty,” and “burden of proof.” For these
reasons, we conclude the District Court did not abuse its discretion in imposing a fifteenminute limit on counsels’ voir dire.
Did the District Court abuse its discretion by allowing police officer testimony
pertaining to the Horizontal Gaze Nystagmus (HGN) test?
Michaud argues that the District Court abused its discretion when it allowed the
arresting officer to testify as to how he administered the HGN test to Michaud and the
results, or inferences, from the test. He maintains that the State did not establish a proper
foundation upon which Johnson, a non-expert, could offer this evidence. The State
acknowledges that it failed to lay a proper foundation and that it did not establish a
scientific basis for the reliability of the test results; it argues, however, that the admission
was harmless error because it constituted cumulative evidence of Michaud’s guilt. We
first determine whether the District Court abused its discretion by admitting the HGN
The HGN test is a field sobriety test frequently administered by law enforcement.
As we explained in City of Missoula v. Robertson, 2000 MT 52, 298 Mont. 419, 998 P.2d
[N]ystagmus is the involuntary jerking of the eyeball resulting from the
body’s attempt to maintain balance and orientation. Nystagmus may be
aggravated by central nervous system depressants such as alcohol or
barbiturates. Furthermore, the inability of the eyes to maintain visual
fixation as they are turned to the side is known as horizontal nystagmus.
Thus, the test is conducted by instructing a person to focus on an object,
such as a pen, while the officer moves the object back and forth
horizontally, and observes the person’s eye movements.
The test is scored by counting the number of “clues” of intoxication exhibited by each
eye with a maximum score of six (6), meaning each eye exhibited the three clues for
which the examiner was looking.
Michaud scored six on the HGN, indicating
We first addressed the admissibility of HGN evidence in State v. Clark, 234
Mont. 222, 762 P.2d 853 (1988), when we noted that:
The admission of this type of evidence is a matter of first impression in this
jurisdiction. Several states . . . have allowed its admission as one method of
indicating impairment. We adopt the position of these courts in allowing
the admission of the tests. The pivotal question now becomes one of proper
foundation (internal citations omitted).
Clark, 234 Mont. at 226, 762 P.2d at 856.
We determined in Clark that M. R. Evid. 702 governed admissibility of expert
testimony, and held that courts should admit all relevant scientific evidence in the same
manner as other expert testimony and allow its weight to be attacked by cross
examination or refutation. We implied, rather than expressly held, that expert testimony
regarding scientific reliability was required to establish a proper foundation. Ten years
later, we clarified our position in Clark with Hulse v. State, Dept. of Justice, 1998 MT
108, 289 Mont. 1, 961 P.2d 75, wherein we expressly stated the requirements of a proper
foundation for the admissibility of HGN evidence.
In Hulse, we stated that before an arresting officer may testify to HGN test results,
the evidence must show that the arresting officer was properly trained to administer the
HGN test and that he or she administered it in accordance with that training. Hulse, ¶ 70.
We also required introduction of evidence regarding the underlying scientific basis for
the HGN test. Hulse, ¶ 70. We concluded that although the arresting officer was trained
to administer the HGN test, and administered the test according to his training, nothing in
the evidence established that the arresting officer had special training, education, or
adequate knowledge qualifying him as an expert to explain the correlation between
alcohol consumption and nystagmus, the underlying scientific basis of the HGN test.
Accordingly, we concluded there was insufficient foundation for the admission of
evidence concerning the HGN test, and that the district court abused its discretion when it
summarily denied Hulse’s motion in limine and allowed the officer to testify as to
Hulse’s HGN test results. Hulse, ¶ 72. See also Bramble v. State, Dept. of Justice, MVD,
1999 MT 132, 294 Mont. 501, 982 P.2d 464, and State v. Van Kirk, 2001 MT 184, ¶ 28,
306 Mont. 215, ¶ 28, 32 P.3d 735, ¶ 28.
The State acknowledges that it failed to establish the necessary foundation for
admission of Johnson’s testimony on the HGN results or the inference he drew from
these results; therefore, under Hulse, we conclude the District Court abused its discretion
in admitting this evidence. We next determine, however, whether this was reversible
In Van Kirk, we set forth a test for determining whether an error prejudices a
defendant’s right to a fair trial and is therefore reversible. The first prong of the test
requires us to assess whether an error is “structural” or “trial” error. Van Kirk, ¶ 37.
Structural error is error that “affects the framework within which the trial proceeds, rather
than simply an error in the trial process itself.” Van Kirk, ¶ 38. On the other hand, trial
error is error that typically occurs during the presentation of a case to the jury. Van Kirk,
¶ 40. Further, as we noted in Van Kirk, trial error is “amenable to qualitative assessment
by a reviewing court for prejudicial impact relative to the other evidence introduced at
trial.” Van Kirk, ¶ 40.
We conclude that the error complained of by Michaud is trial error and therefore
“is not presumptively prejudicial and . . . is not automatically reversible.” Van Kirk, ¶ 40.
Because this is trial error, our analysis proceeds to Van Kirk’s second step—a
determination of whether the admission of the HGN evidence was harmless or
prejudicial. Van Kirk, ¶ 41. In Van Kirk we explained that we must determine if the
evidence is “cumulative” or “non-cumulative.”
If the tainted evidence is the only
evidence presented to establish a certain fact, in other words it is non-cumulative, we then
look to see if the evidence was presented to prove an element of the charged crime. If the
only evidence tending to prove an element of the crime is tainted, inadmissible evidence,
then reversal is compelled. Van Kirk, ¶ 45. If, however, the non-cumulative evidence
was not presented as proof of an element of the charged crime, the State has the
opportunity and the burden to demonstrate that there was no possibility that the tainted
evidence might have contributed to the defendant’s conviction. Van Kirk, ¶ 47.
On the other hand, if the tainted evidence is cumulative, meaning other evidence
to prove the same fact was presented, then the State must show that admissible evidence
that proved the same facts as the tainted evidence was presented to the fact-finder and
that the quality of the tainted evidence when compared to the properly-admitted evidence
would not have contributed to the conviction. Van Kirk, ¶ 47.
In the case before us, the State argues that the HGN test result was cumulative
evidence tending to show that Michaud was intoxicated as charged. It presented the
following evidence of proof of Michaud’s intoxication:
(1) the failing results of
Michaud’s two field sobriety tests—the walk and turn and the one-legged stand; (2)
Michaud’s refusal to take the breathalyzer test; (3) the odor of alcohol coming from
inside Michaud’s car when the officer was speaking to Michaud; (4) a beer can inside the
cab of Michaud’s truck; and (5) Michaud’s admission that he had drunk a couple of beers
earlier that day.
Under these circumstances, we must determine whether the State met its burden in
demonstrating that the quality of the HGN evidence was such that it did not contribute to
the jury’s conviction of Michaud. We conclude the State failed to meet this burden
because it failed to present an argument. Rather, it made the following conclusory
Regardless of the HGN test, and as noted above, the record demonstrates
Michaud also failed two other field sobriety tests. Thus, the jury could
have easily concluded that failure of either the one-legged stand or the walk
and turn field sobriety tests demonstrated Michaud was under the influence
of alcohol while driving that day. The results of the HGN test was [sic] not
necessary for the jury to conclude the State had met its burden of proof that
Michaud was driving while under the influence of alcohol when Deputy
Johnson stopped him on August 22, 2005.
This statement does not constitute a demonstration that “there was no reasonable
possibility that the tainted evidence might have contributed to the defendant’s
conviction.” Van Kirk, ¶ 46. As we have noted in the past, evidence that is scientific in
nature, such as the HGN, is likely to be accorded more weight by a jury than more
subjective evidence, such as officer testimony or less scientific field sobriety tests. State
v. Crawford, 2003 MT 118, 315 Mont. 480, 68 P.3d 848; State v. Snell, 2004 MT 334,
¶ 43, 324 Mont. 173, ¶ 43, 103 P.3d 503, ¶ 43.
Having determined that the District Court abused its discretion in admitting the
HGN evidence and that the State failed to meet its burden of proving that this admission
was harmless, we reverse the jury verdict in favor of the State and remand this matter to
the District Court for retrial.
Does the inference contained in § 61-8-404(2), MCA, whereby a jury may infer
that a defendant was driving under the influence of alcohol from his refusal to take
a sobriety test, violate a defendant’s due process rights?
Although we are reversing Michaud’s conviction, we deem it appropriate to
address the remaining issues Michaud raises, as they are bound to be presented again
Michaud challenges the constitutionality of the inference contained in
§ 61-8-404(2), MCA, on the following grounds:
(1) the inference denies a defendant due process because it shifts the burden of proof
from the State to the defendant;
(2) the inference denies a defendant due process because it is not rationally related to a
defendant’s refusal to take a breath test;
(3) the inference denies the accused the right to counsel at a critical stage of the
(4) the inference compels a defendant to give evidence against himself.
Based on these claims of perceived unconstitutionality, Michaud argues that the District
Court’s instruction to the jury as to this inference constitutes an error warranting reversal
of his conviction. Michaud’s constitutional arguments appear to be based upon a belief
that a defendant could be convicted of driving under the influence of alcohol based solely
upon evidence of the defendant’s refusal to take a breath test.
We address this
misconception in our analysis.
The statute Michaud is challenging, § 61-8-404(2), MCA, provides in pertinent
61-8-404. Evidence admissible - conditions of admissibility. (1)
Upon the trial of a criminal action or other proceeding arising out of acts
alleged to have been committed by a person in violation of 61-8-401, 61-8406, 61-8-410, or 61-8-805:
(a) evidence of any measured amount or detected presence of
alcohol, drugs, or a combination of alcohol and drugs in the person at the
time of a test, as shown by an analysis of the person’s blood or breath, is
admissible. A positive test result does not, in itself, prove that the person
was under the influence of a drug or drugs at the time the person was in
control of a motor vehicle. A person may not be convicted of a violation of
61-8-401 based upon the presence of a drug or drugs in the person unless
some other competent evidence exists that tends to establish that the person
was under the influence of a drug or drugs while driving or in actual
physical control of a motor vehicle within this state.
(2) If the person under arrest refused to submit to one or more tests
as provided in this section, proof of refusal is admissible in any criminal
action or proceeding arising out of acts alleged to have been committed
while the person was driving or in actual physical control of a vehicle upon
the ways of this state open to the public, while under the influence of
alcohol, drugs, or a combination of alcohol and drugs. The trier of fact may
infer from the refusal that the person was under the influence. The
inference is rebuttable. (Emphasis added.)
The jury instruction to which Michaud objected provided:
If the person under arrest for driving under the influence of alcohol refused
to submit to one or more tests for alcohol concentration, proof of refusal is
admissible in any criminal action or proceedings arising out of acts alleged
to have been committed while under the influence of alcohol.
The trier of fact may infer from the refusal that the person was under the
influence. The inference is rebuttable. (Emphasis added.)
Michaud contends that the inference contained in § 61-8-404(2), MCA, deprives a
defendant of his due process rights because (1) it relieves the State of its burden to prove
a critical element of the offense, i.e., that a person was actually driving under the
influence, and shifts the burden to a defendant to prove that he was not driving under the
influence, and (2) the inferred conclusion that a defendant was driving under the
influence of alcohol does not rationally follow from the fact that he refused to take a
The State counters that this issue was resolved in Morris, wherein we held that
§ 61-8-404, MCA, did not impermissibly shift the burden of proof and did not violate
Morris’ due process rights.
In Morris, we explained that when construing a challenged statute, we “will read
and interpret the statute as a whole, without isolating specific terms from the context in
which they are used by the Legislature.” We also noted that “all statutes carry with them
a presumption of constitutionality, and we construe statutes narrowly to avoid an
unconstitutional interpretation if feasible.” Morris, ¶ 19 (citation omitted). We explained
that when interpreting statutes, we “give effect to the legislative will, while avoiding an
absurd result.” Morris, ¶ 19. Analyzing § 61-8-404, MCA, as a whole, “we conclude[d]
that subsection (2) must be read as requiring the production of other competent
corroborating evidence of a DUI,” given that subsection (1)(a) requires corroborating
evidence when a person actually takes a drug test. Morris, ¶ 21. We observed that an
officer must have “probable cause” to arrest a driver suspected of driving while under the
influence of alcohol and the evidence to support this probable cause, such as erratic
driving, slurred speech, or an odor of alcohol. Morris, ¶ 21. Such evidence safeguards
against the possibility that a defendant could be convicted of driving under the influence
of alcohol based solely upon the defendant’s refusal to take the test.
As did Michaud, Morris also objected to the district court’s jury instruction on the
statutory inference. Reviewing the jury instructions, we concluded that based on “the
instructions as a whole” the burden of proof did not unconstitutionally shift to Morris.
Morris, ¶ 18. We noted that the court directed the jurors to view the instructions as a
whole and instructed jurors that Morris was “not required to prove his innocence or
present any evidence.” Moreover, the instructions charged the jury as to the elements of
the offense, the State’s burden of proof, and the presumption of innocence, among other
things. Morris, ¶ 18. As in the case before us, the Morris district court also told the jury
that the trier of fact may infer from the refusal that the person was under the influence but
that this inference is rebuttable. Morris, ¶ 15. Under this analysis, we concluded that the
district court in Morris did not err in instructing the jury on the provisions of
§ 61-8-404(2), MCA.
Michaud presents the same argument, under the same basic facts, asserting that
Morris was wrongly decided. We decline to revisit Morris. The analysis in Morris is
wholly applicable to the case at bar. The District Court issued the same instructions to
Michaud’s jury as the court issued in Morris. Therefore, based on Morris, Michaud’s
claims that the statute unconstitutionally shifts the burden to the defendant and the court’s
jury instruction was erroneous, fail.
Michaud also argues that the statute is unconstitutional because the inferred
conclusion that a defendant was driving under the influence of alcohol does not rationally
follow from the fact that he refused to take a breath test. Again, Michaud asserts that the
jury instruction on the inference requires reversing his conviction. Michaud notes that
only “permissive presumptions”2 are allowed in criminal cases, and opines that under
various federal cases, the inference contained in § 61-8-404, MCA, is not an inference
allowed in criminal trials. He maintains that “there is nothing within the fact of the
refusal of a breath test which leads to a rational connection to actually being under the
influence of alcohol,” and that a person may refuse to take a breath test for several
reasons, not merely out of fear of failing. Relying on Leary v. United States, 395 U.S. 6,
89 S. Ct. 1532 (1969), Michaud argues that the “test” for rationality of an inference is
whether “it can at least be said with substantial assurance that the presumed fact is more
likely than not to flow from the proved fact on which it is made to depend.” Leary, 395
U.S. at 36, 89 S. Ct. at 1548.
While we have not been asked previously to determine whether the inference in
§ 61-8-404(2), MCA, is a permissive inference or whether it satisfies the “rational
connection” test stated in Leary, we have nonetheless applied the Leary test in State, etc.
v. District Court, etc., 180 Mont. 548, 558-59, 591 P.2d 656, 662 (1979) and State v.
A “permissive” inference or presumption is one “that a trier of fact is free to accept or reject
from a given set of facts.” Black’s Law Dictionary 1204, Bryan A. Garner ed., 7th ed., West
Leverett, 245 Mont. 124, 129, 799 P.2d 119, 122 (1990), in our consideration of other
We conclude the statutory inference before us is a permissive inference.
Leverett, we noted that the inferences presented to the jury in the jury instructions were
mandatory inferences in that they required that “it shall be presumed,” and “the trier of
fact must find.” It is apparent that the inference language in § 61-8-404(2), MCA, allows
the trier of fact—whether a judge or a jury—to accept or reject the inference.
Additionally, it expressly allows the defendant to rebut the inference. Moreover, as
discussed above in ¶ 44, the trier of fact must be is presented with “other competent
evidence” that a defendant is driving while under the influence of alcohol. Section
61-8-404, MCA; Morris, ¶ 21.
Applying the Leary test to this inference, we conclude that as a permissive
inference, it does not violate due process in that there is a rational connection between
driving while intoxicated and refusing to take a sobriety test.
Michaud had the
opportunity to present evidence or argument to rebut the presumption but did not do so.
Does the inference contained in § 61-8-404(2), MCA, deny a defendant his right to
counsel at a critical stage of the prosecution or violate a defendant’s right not to
be compelled to give testimony against himself?
Building upon the above-noted arguments, Michaud insists that a defendant can be
convicted of driving under the influence based solely upon his refusal to take the sobriety
test and as such, is deprived of the right to counsel at the critical time he must make this
He also posits that this “inference of guilt” constitutes testimony against
oneself in violation of federal and state constitutional protections. Michaud’s arguments
fail for several reasons.
First, driving in Montana is a privilege, not a right. Throughout our statutes and
relevant cases, we regularly encounter the phrase “driving privileges” or “driving while
the privilege to do so was suspended.” E.g., State v. Turbiville, 2003 MT 340, ¶ 21, 318
Mont. 451, ¶ 21, 81 P.3d 475, ¶ 21; § 61-2-302(9)(b)(ii), MCA; § 61-5-105(2), MCA.
Additionally, § 61-8-402(1), MCA, expressly states that a person who operates a vehicle
on Montana’s public roadways is “considered to have given consent to a test or tests of
the person’s blood or breath for the purpose of determining any measured amount or
detected presence of alcohol . . . .” If a person wishes to enjoy the benefits of this
privilege, he must accept the concomitant responsibilities.
Second, as indicated above, competent and credible evidence was presented upon
which the jury could find that Michaud was intoxicated; thus, the inference was not the
sole issue before the jury.
Moreover, i t is established in Montana that prior to taking a breath test, a
defendant has no right to counsel. State v. Armfield, 214 Mont. 229, 234, 693 P.2d 1226,
1229 (1984), overruled in part on other grounds, State v. Reavley, 2003 MT 298, 318
Mont. 150, 79 P.3d 270. A breath test does not constitute a “critical stage event”;
therefore, no right to counsel exists. Armfield, 214 Mont. at 234, 693 P.2d at 1230, citing
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967); Meyer v. State, 229 Mont.
199, 202, 745 P.2d 694, 696 (1987).
Finally, we have previously addressed the constitutional concern of self-
incrimination based upon admission of a defendant’s refusal to submit to testing in City
of Missoula v. Forest, 236 Mont. 129, 769 P.2d 699 (1989), wherein we stated:
This Court has long adhered to the rule that neither the results of the
breathalizer test nor a defendant’s refusal to submit to the breathalizer test
are communications protected by the Fifth Amendment. State v. Jackson
(1983), 206 Mont. 338, 672 P.2d 255, citing South Dakota v. Neville
(1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748; State v. Armfield
(1984), 214 Mont. 229, 693 P.2d 1226. Therefore, our discussion of the
principle will remain brief.
As a part of the program to deter drinkers from driving, Montana has
enacted an Implied Consent Law. The statute declares that any person who
operates a motor vehicle within the State shall be deemed to have given his
consent to a chemical test to determine the alcohol content of his blood if
arrested by a police officer for driving under the influence of alcohol.
Section 61-8-402(1), MCA. The test is not compelled, yet refusal results in
attendant penalties, including an immediate seizure of one’s driver’s
license, § 61-8-402(3), MCA, and the admissibility of the refusal upon trial
for DUI. Section 61-8-404(2), MCA. . . .
. . . The Fifth Amendment affords no protection against the
prosecutor’s use of fingerprints, measurements, handwriting, voice
identification or blood tests; all constitute “physical or real” evidence.
Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d
908. Similarly, appellant’s claim of constitutional prohibition against selfincrimination by the admission of his refusal to submit to the blood-alcohol
test is foreclosed by the Neville decision, which defined the refusal as nontestimonial conduct.
Missoula, 236 Mont. at 133-34, 769 P.2d at 701-02.
While the cases discussed above pre-date the 2003 version of the statute in which
the Legislature added the challenged inference, because evidence of the inference alone is
insufficient to result in a conviction these cases remain relevant and applicable to the case
We conclude the inference contained in § 61-8-404(2), MCA, did not violate
Michaud’s constitutional rights to due process, right to counsel or protection from selfincrimination. Furthermore, the District Court did not abuse its discretion in instructing
the jury regarding this statute and its inference.
For the foregoing reasons, we reverse and remand this matter to the District Court
for proceedings consistent with this Opinion.
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
Justice James C. Nelson concurs and dissents.
I concur as to Issue 2. I join Chief Justice Gray’s Dissent as to issues 3 and 4, and
I dissent from the Court’s decision as to Issue 1, and would remand for a new trial as to
that issue also.
Section 46-16-114(2), MCA, provides:
The prosecutor and the defendant or the defendant’s attorney shall
conduct the examination of prospective jurors. The judge may conduct an
additional examination. The judge may limit the examination by the
defendant, the defendant’s attorney, or the prosecutor if the examination is
We are required to declare what is in terms or in substance contained in the
statutes of this State, neither adding what has been omitted nor omitting what has been
inserted. Section 1-2-101, MCA. Here, the plain language of the statute provides that the
court may limit the examination of prospective jurors “if the examination is improper.”
There is nothing in the statute that allows the court to set arbitrary time limits on
counsel’s voir dire examination—at least absent counsel asking improper questions. This
right of voir dire belongs to the defendant and may not be arbitrarily fettered by the trial
judge. More to the point, there is no evidence in this case that defendant’s counsel asked
any “improper” questions of the prospective jurors. If, because of intolerably crowded
court dockets, the time has come in Montana to require that the trial judge conduct the
voir dire (as in the federal courts) or to allow the court to arbitrarily impose time limits on
counsel’s voir dire, then the Legislature should enact that change, not the judiciary. I
would apply § 46-16-114(2), MCA, as it is written and hold that the trial court erred in
imposing arbitrary time limits on counsel’s voir dire. I would reverse and remand for a
new trial on that issue also.
I concur with Issue 2; I dissent from Issues 1, 3 and 4.
/S/ JAMES C. NELSON
Chief Justice Karla M. Gray, concurring in part and dissenting in part.
I concur in the Court’s opinion on the second issue, which reverses the District
Court’s admission of the officer’s HGN testimony. I join Justice Nelson’s dissent on the
first issue and would reverse the District Court’s limitation of time for voir dire as well.
I also respectfully dissent from the Court’s opinion on the issues of whether the
rebuttable inference contained in § 61-8-404(2), MCA, violates Michaud’s constitutional
rights to due process and to not incriminate himself. I would reverse and remand on
those issues and overrule the Court’s contrary holding on the identical due process issue
in Morris—a case in which I did not participate.
Driving under the influence of alcohol (DUI) is—as it should be—a strict liability
offense in Montana. See § 61-8-401(7), MCA. Here, however, it is my view that the
Legislature has gone too far in its zeal to convict persons suspected of DUI. Agreeing
wholeheartedly with the Court that statutes are presumed constitutional and a challenger
bears a heavy burden, I would hold that the rebuttable statutory inference a jury may
draw—that a person who refused a blood or breath test for alcohol concentration was in
fact under the influence of alcohol—together with the language that the inference is
rebuttable, cannot withstand constitutional scrutiny.
The elements of the strict liability DUI offense are straightforward. It is unlawful
for a person under the influence of alcohol to drive or be in physical control of a vehicle
on the ways of this state open to the public. Section 61-8-401(1)(a), MCA. “Under the
influence” means that, as a result of taking alcohol into the body, a person’s ability to
safely operate a vehicle has been diminished. Section 61-8-401(3)(a), MCA. It cannot
be disputed that the State carries the burden of proving each element beyond a reasonable
Frequent readers of this Court’s opinions—whether trial judges, legal practitioners
or lay Montanans—know that questions about whether the accused was driving or in
physical control of a vehicle, or whether the vehicle was traveling on the ways of this
state open to the public, generally are not the focal point of DUI cases. The element of
the offense most often at issue is whether the State proved beyond a reasonable doubt that
the accused was “under the influence” of alcohol. It is my opinion that the statutory
inference and the statutory “rebuttable” language shift the burden away from the
prosecution, thereby violating Michaud’s due process rights.
This Court first addressed the statutory inference at issue here in Morris. It
properly relied on State v. Leverett, 245 Mont. 124, 127, 799 P.2d 119, 120-21 (1990),
for the proposition that—in construing evidentiary presumptions (and implicitly,
inferences) in a criminal case—the reviewing court must focus on the particular language
used to charge the jury and determine how a reasonable juror would understand it.
Morris, ¶ 17. Having done so, the Court noted the usual “presumption of innocence,”
“beyond a reasonable doubt” and defendant “not required to . . . present evidence”
instructions were given, and concluded the instruction containing the § 61-8-404(2),
MCA, rebuttable inference did not impermissibly shift the burden. Morris, ¶ 18. It is my
view that the Court erred there and repeats the same error here.
Neither in Morris nor the present case was the jury—a group of lay people—
instructed as to the meaning of an inference or how it could possibly harmonize the
Of course, i t is easy to simply assume that jurors hear and
understand every word in instructions, thus leaving them consciously aware that they
may—but need not—use Michaud’s refusal to take the breath test to establish that he was
“under the influence” absent rebuttal evidence from Michaud. Even if one were willing
to make such an assumption, however, it is my view that no “presumption of innocence,”
“State’s burden” and “defendant need not produce evidence” instructions could ever
remove the taint of the instructional and statutory language “[t]he inference is
rebuttable.” At the very least, the latter language creates a stark and clear inconsistency
between and among the instructions. I would hold that the statutory rebuttable inference
impermissibly shifts the burden to the defendant and, therefore, violated Michaud’s
constitutional right to due process.
Instead, the Court simply relies on Morris,
mentioning several times that the “inference is rebuttable” but without ever explaining
why it is permissible to require a defendant in a criminal case to produce evidence. I
The Court then moves on to the portion of Morris discussing our obligation to
interpret § 61-8-404(2), MCA, to avoid unconstitutionality if feasible. The Morris Court
listed a handful of different rules of statutory construction, including “construe statutes
narrowly,” “give effect to the legislative will” and others. See Morris, ¶ 19. One of the
most basic rules of statutory construction is missing from the list, however, and it is the
rule that it is our job “not to insert” language not contained in a statute. The Morris
Court simply imported into subsection (2) of § 61-8-404, MCA, the language the
Legislature included in subsection (1)(a)—requiring corroborating evidence of “under the
influence”—when a person takes, rather than refuses, the test. Since it is clear that the
Legislature knew how to include such language when it intended to do so, I cannot see
how rewriting the statute in that manner ascertains the Legislature’s will or does anything
other than insert language the enacting branch of government did not.
Moreover, it is one thing to say that this Court has imported the “corroborating
evidence” portion of § 61-8-404(1)(a), MCA, into § 61-8-404(2), MCA. It is quite
another thing for the jury to know of that critical requirement. Here, the jury, having not
been instructed as to what an inference is, also was not instructed of the critical
requirement that corroborating evidence was required before the State could meet its
burden of proving the elements of the DUI offense beyond a reasonable doubt.
In the present case, the evidence of “under the influence” is sketchy at best and
may not have been accepted by the jury as sufficient to corroborate anything more than
that Michaud’s vehicle was missing a mirror, its license plate was obstructed from some
perspectives, and Michaud admitted he had consumed a few drinks earlier in the day and,
in the officer’s view, had “difficulty” with his balance. The question is not whether there
was corroborating evidence that Michaud had a drink. The question is whether there was
corroborating evidence that he was driving a vehicle “under the influence” of alcohol;
that is, whether Michaud’s ability to safely drive a vehicle had been diminished by taking
alcohol into his body. See § 61-8-401(3)(a), MCA. Finally, even if the Court’s statutory
construction in Morris and here were correct, the taint of instructing the jury that
Michaud could rebut the refusal, and thereby try to keep it from inferring from the refusal
itself that he was under the influence, remains.
I also must note that in both Morris and here, the Court follows the State’s lead in
falling back on the “red herring” of the absence of a challenge to the probable cause
needed for an arrest. I daresay that most television viewers in this country understand
that probable cause to arrest is a much lesser standard than proving each element of a
charged offense beyond a reasonable doubt.
That proposition needs no citation to
authority. I am concerned and mystified about the Court’s insertion of that concept
here—when, indeed, it is not raised. Stating, as the Court does in ¶ 44, that evidence
sufficient to support probable cause “safeguards against the possibility that a defendant
could be convicted of driving under the influence of alcohol based solely upon the
defendant’s refusal to take the test” turns the administration of criminal justice on its
It also is contrary to other fundamental constitutional principles such as the
presumption of innocence and the State’s burden to prove every element of a charged
offense beyond a reasonable doubt.
I observe, in relation to this issue, that the Court does not address at all Michaud’s
argument that the inference the jury can draw from a refusal to take the test does not meet
statutory requirements for an inference.
Section 26-1-502, MCA, requires that an
inference be founded on a fact legally proved and “on such a deduction from that fact as
is warranted by a consideration of the usual propensities or passions of men . . . .” In this
case, the predicate fact legally proved is that Michaud refused to take the test. Clearly,
that refusal could have been based on a concern that results of the test would show an
elevated blood alcohol concentration. In my view, however, the refusal could have been
based on a simple lack of willingness to cooperate with law enforcement, a belief that
such a test would be an invasion of privacy or other reasons. Thus, in my view, the
deduction of “under the influence” from a refusal to take the test is not—under § 26-1502, MCA—warranted.
On the second issue, I would hold that the inference does not meet the statutory
requirements for an inference and, much more importantly, that the rebuttable inference
contained in § 61-8-404(2), MCA, and included in the jury instructions, violated
Michaud’s due process rights by shifting the burden to him to come forward and rebut
evidence regarding an essential element of the DUI offense the State was required to
prove beyond a reasonable doubt.
I also dissent from the Court’s analysis and holding that the statutory inference
does not violate Michaud’s right not to be compelled to give testimony against himself.
The Court begins its analysis, at ¶ 53, with the long-established and undisputed principles
that driving in Montana is a privilege and not a right and that, pursuant to § 61-8-402(1),
MCA, each person who drives a vehicle in Montana has impliedly consented to a blood
or breath test for determining the presence of alcohol in the person’s body. It is critical to
note, however, that § 61-8-402, MCA, is the statute providing for the seizure and
suspension of a driver’s license.
Thus, because driving is a privilege, and implied
consent to the test has been given in exchange for the exercise of that privilege, a refusal
of the test logically and constitutionally results in the loss of the license.
That logic and rationale, however, is a far different matter from the statute
defining the criminal offense of DUI, the constitutional requirement that the State prove
each element beyond a reasonable doubt, and the constitutional right not to be compelled
to testify against oneself. If Michaud is presumed innocent, need not put on a defense
and can hold the State to its proof without being required to incriminate himself, how can
a simple “No” in response to a request for the test—or mere silence, taken as a refusal—
be substantively different from refusing to talk to law enforcement in other criminal case
contexts? Stated differently, if the State cannot comment on a defendant’s silence—and
our cases on that point are legion—how can the State be allowed to use a defendant’s
“No,” or silence, to prove an essential element of the case, especially when a jury is
simultaneously told that the defendant can undo or at least try to undo such use merely by
putting on evidence, something he cannot constitutionally be required to do? I submit
that, constitutionally, this cannot be permitted.
In this regard, the Court relies on Forest and Armfield as holding that the right
against self-incrimination is not violated when a DUI defendant’s refusal to submit to
testing is admitted as evidence. I question whether these somewhat dated cases were
correctly decided. Leaving those questions aside, however, it is my view that admitting
evidence that a defendant refused the test does not begin to rise to the constitutional
magnitude of admitting the evidence as an inference of the essential “under the
influence” element and telling the jury the defendant can rebut the inference. While the
bare introduction of the refusal may not be testimonial, pursuant to Forest and Armfield,
I believe use of the denial as substantive evidence that the defendant was under the
influence of alcohol changes the nature of the evidence entirely.
For all the stated reasons, I would reverse the District Court and remand for
further proceedings. I dissent from the Court’s failure to do so.
/S/ KARLA M. GRAY
Justice James C. Nelson joins in the foregoing concurring and dissenting opinion of Chief
Justice Karla M. Gray.
/S/ JAMES C. NELSON