                                                                                              12/28/2017


                                          DA 16-0249
                                                                                         Case Number: DA 16-0249

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2017 MT 322N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

FREDERICK THOMAS OFFENKRANTZ,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-15-297
                        Honorable Karen S. Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Colin M. Stephens, Smith & Stephens, Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Mac Bloom, Deputy County
                        Attorney, Missoula, Montana



                                                   Submitted on Briefs: December 6, 2017

                                                               Decided: December 28, 2017


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶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     Frederick Offenkrantz appeals the District Court’s December 14, 2015 order

denying his motion to dismiss and to suppress. We affirm.

¶3     In August 2013, a Montana Highway Patrol Trooper stopped Offenkrantz’s

vehicle on Interstate 90 near Rock Creek because the trailer he was pulling had a

burned-out tail light.   The Trooper asked Offenkrantz for his license and insurance

information, noting that he exhibited “cotton mouthed” speech and he avoided eye

contact. The Trooper gave Offenkrantz a warning for the tail light and told him he was

free to go. At that point the Trooper detected an odor of alcohol from the vehicle and

saw a beer can in the trailer.

¶4     The Trooper confirmed that the alcohol odor was coming from the vehicle and

Offenkrantz admitted that he had a “lot to drink last night.” He consented to a breath test

and registered over the legal limit for alcohol. The State charged Offenkrantz with

aggravated driving under the influence. He was convicted in Justice Court and appealed

to District Court where his conviction was upheld.




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¶5     On appeal to this Court, Offenkrantz contends that the Trooper who stopped his

vehicle lacked particularized suspicion to investigate him for DUI after giving him a

warning for the tail light. He also contends that he was not provided effective assistance

of counsel in the proceedings below.

¶6     Upon the facts presented, we conclude that the Trooper had sufficient

particularized suspicion to investigate Offenkrantz for DUI.       There seems to be no

dispute that the Trooper noted that Offenkrantz exhibited “thick speech,” similar to what

results from dehydration that often accompanies alcohol consumption; that Offenkrantz

avoided making eye contact; that the Trooper smelled the odor of alcohol coming from

the vehicle; and that there was a beer can in the trailer. Therefore, the Trooper’s decision

was based upon objective data arising from articulable facts, which was sufficient to

allow the Trooper to conduct further investigation.       Brown v. State, 2009 MT 64,

¶¶ 19-20, 349 Mont. 408, 203 P.3d 842.             The District Court properly denied

Offenkrantz’s motion to suppress the evidence arising from the traffic stop.

¶7     Offenkrantz also contends that he was denied effective assistance of counsel in the

proceedings below. After review of the parties’ arguments, we determine that the record

on appeal is not sufficient to allow this Court to decide the issue under established legal

standards. Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861. We do so

without prejudice to Offenkrantz’s right to seek postconviction relief as provided in

§ 46-21-101, MCA.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

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of the Court, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶9     Affirmed.

                                                 /S/ MIKE McGRATH


We Concur:

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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