                                                                                          April 30 2013
                                         DA 12-0239

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 115



STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

KRISTIN ELIZABETH KELM,

              Defendant and Appellee.


APPEAL FROM:           District Court of the Fifteenth Judicial District,
                       In and For the County of Sheridan, Cause No. DC 46-2011-9
                       Honorable Katherine M. Bidegaray, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                       Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss,
                       Assistant Attorney General; Helena, Montana

                       Steven Howard, Sheridan County Attorney; Plentywood, Montana
                       Nickolas C. Nurnion, Special Deputy Sheridan County Attorney;
                       Glasgow, Montana

               For Appellee:

                       Brad W. Fjeldheim; O’Toole Law Firm; Plentywood, Montana



                                                  Submitted on Briefs: January 23, 2013

                                                              Decided: April 30, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     The State of Montana appeals an order of the Montana Fifteenth Judicial District

Court, Sheridan County, granting defendant Kristin Kelm’s motion to suppress evidence.

We affirm in part, reverse in part, and remand the action for further proceedings.

¶2     We address the following issues on appeal:

¶3     1. Did the District Court incorrectly conclude that, because the arresting officer

did not follow § 46-6-312, MCA, all evidence gathered after Kelm’s arrest should be

suppressed?

¶4     2. Did the District Court incorrectly conclude that the officer’s failure to advise

Kelm of her Miranda rights at the time of her arrest required suppression of all evidence

obtained after her arrest?

¶5     3. Did the District Court incorrectly conclude that evidence seized from Kelm’s

vehicle must be suppressed?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶6     In the early-morning hours of February 19, 2011, Sheridan County Sheriff’s

Deputy Robert Krause (Krause) observed a blue pickup truck driven by Kristen Kelm

cross the center line of a Plentywood, Montana street and drive onto the local highway.

Krause followed Kelm for several miles and “observed [her] vehicle weaving within its

lane touching both the fog line and the center line and then actually crossing the center

line two or three times.”




                                         2
¶7    Krause initiated a traffic stop on Kelm’s vehicle and she pulled over to the side of

the road.   When Krause approached the driver’s-side window, Kelm immediately

provided her driver’s license. Krause informed Kelm that he had stopped her for crossing

the center line of the highway.     He then remarked to Kelm that her eyes looked

“bloodshot and glassy” and asked if she had been drinking. Kelm denied that she had

consumed alcohol that evening.

¶8    Without having Kelm get out of the car, Krause proceeded to administer a

horizontal gaze nystagmus test (HGN) to help determine whether Kelm was intoxicated.

He observed a “lack of smooth pursuit in both eyes as well as distinct and sustained

nystagmus at maximum deviation in both eyes” and gave her a score of four out of a

possible six points, which indicated intoxication. Krause again asked Kelm if she had

been drinking alcohol, and she admitted to consuming one drink.

¶9    After Krause had finished administering the HGN test, he determined that Kelm

needed to pass standardized field sobriety tests before she could resume driving. Because

the temperature was minus-one degree Fahrenheit and ice and snow covered the highway,

Krause asked Kelm if she would agree to perform sobriety tests at the Sheridan County

Jail, where the climate-controlled conditions would give her the best chance of passing

the tests. Kelm agreed, turned off her truck, and gave her keys to Krause. In accordance

with department policy, Krause put Kelm in handcuffs before placing her in the backseat

of his patrol vehicle. Krause did not inform Kelm that she was under arrest.




                                        3
¶10    As Krause was helping Kelm buckle her seatbelt, he smelled alcohol on Kelm’s

breath. Krause asked Kelm to confirm that she had only had one drink that evening. He

then informed her that he could smell alcohol, and asked if she was certain that she had

only had one drink; Kelm said yes.

¶11    Krause then noticed that Kelm had not turned off her truck’s lights. Kelm gave

him permission to turn off the lights before they drove away so that the truck’s battery

would not die. Krause unlocked the pickup, reached in from the driver’s side, and turned

off the lights. As he was walking back to his patrol car, he noticed that the truck’s dome

lights still were illuminated.   He opened the driver’s-side door a second time and

immediately noticed a half-full beer bottle on the floor as well as a plastic cup filled with

a green liquid that smelled like alcohol in the passenger cup holder. After emptying the

beer bottle and plastic cup in front of his cruiser, Krause asked Kelm about the green

liquid. Kelm could not identify the liquid and denied that she had been drinking it.

¶12    Krause drove Kelm to the booking room at the Sheridan County Jail, where she

performed three field sobriety tests under the direction of Sheriff Deputy Darren Ginn

(Ginn): a second HGN test, a “walk and turn” test, and a “one-leg stand” test. Kelm

failed each test. Like Krause, Ginn observed a “lack of smooth pursuit” and “distinct

nystagmus at maximum deviation” during the HGN test. During the walk and turn test,

Kelm failed to follow directions by walking too soon, raising her arms while walking,

and making an improper turn. She also was unable to walk in a straight line in a heel-toe

fashion. During the one-leg stand, she swayed back and forth, raised her arms, and put


                                          4
her foot down too soon. Ginn and Krause did not ask Kelm any potentially incriminating

questions while administering the sobriety tests.

¶13    Following the sobriety tests, Ginn read to Kelm an implied consent advisory form.

Ginn informed Kelm that she was under arrest for driving a motor vehicle while under

the influence of alcohol and that, under Montana law, she was deemed to have given her

implied consent to either a blood or breath test for alcohol. This was the first time a law

enforcement officer told Kelm that she was under arrest.        Ginn also explained that

Kelm’s Miranda right to an attorney did not apply during the testing procedure and

advised her of the consequences if she refused to take the test. Kelm signed the form and

agreed to take a breath test. The test showed that her blood alcohol content was 0.198—

over twice the legal limit. Krause then read Kelm her Miranda rights for the first time.

Kelm signed a form indicating that she understood her rights and stated she did not wish

to further speak with law enforcement. Krause then formally booked Kelm into the

Sheridan County Jail.

¶14    Later that day, Kelm appeared before the Sheridan County Justice Court and was

charged with three separate counts: (1) unlawful possession of an open alcoholic

beverage container in a motor vehicle, in violation of § 61-8-460, MCA; (2) failure to

drive on the right side of a roadway, in violation of § 61-8-321, MCA; and (3) driving

under the influence of alcohol, first offense, in violation of § 61-8-401, MCA. After the

Justice Court denied Kelm’s motion to suppress all evidence collected after her arrest,




                                         5
Kelm pleaded guilty to all three charges, but gave notice of her intention to appeal the

denial of her motion to the District Court pursuant to § 46-12-204(3), MCA.

¶15       On October 17, 2011, Kelm filed motions requesting the District Court to order

the evidence against her suppressed. Kelm asserted that the State should not be allowed

to introduce evidence obtained during the HGN test Krause administered, evidence of the

half-full beer bottle and plastic cup that Krause took from Kelm’s car as he was trying to

turn off her lights, and “all evidence gathered prior to [her] Miranda warning.”

¶16       The District Court held a hearing on the matter, and entered an order on March 28,

2012. The court denied Kelm’s motion regarding the HGN test and concluded that the

State could introduce evidence of Krause’s HGN test after laying a proper foundation.1

The District Court disagreed with the State’s contention that Krause’s seizure of the beer

bottle and plastic cup fell within the plain view doctrine because Krause was not

“lawfully present” in Kelm’s vehicle; consequently, the court granted Kelm’s motion to

suppress that evidence. The court also granted Kelm’s motion to suppress “all evidence

the State gathered between her arrest and [when the] Miranda warnings finally [were]

articulated” at the Sheridan County Jail. The District Court agreed with Kelm’s argument

that, because Deputy Krause did not satisfy § 46-6-312, MCA, and did not apprise Kelm

of her Miranda rights immediately after arresting her, her arrest was unlawful and all

evidence subsequently obtained must be suppressed. The State appeals.




1
    Kelm has not cross-appealed this finding and it is not at issue on appeal.
                                              6
                               STANDARD OF REVIEW

¶17   The State may appeal from any court order or judgment in a criminal case “the

substantive effect of which results in . . . suppressing evidence.”       Section 46-20-

103(2)(e), MCA. When reviewing a district court’s ruling on a motion to suppress, we

determine “whether the findings of fact are clearly erroneous and whether the court

correctly interpreted the law and applied it to those facts.” State v. Nixon, 2013 MT 81,

¶ 15, 369 Mont. 359, ___ P.3d ___ (quoting State v. Haldane, 2013 MT 32, ¶ 15, 368

Mont. 396, ____ P.3d ___). A factual finding is clearly erroneous if it is “not supported

by substantial evidence, if the court has misapprehended the effect of the evidence, or if

this Court’s review of the record leaves us with a definite or firm conviction that a

mistake has been made.” Nixon, ¶ 15 (quoting State v. Morrisey, 2009 MT 201, ¶ 14, 351

Mont. 144, 214 P.3d 708).

¶18   Our review of constitutional questions is plenary, State v. Dugan, 2013 MT 38,

¶ 14, 369 Mont. 39, ___ P.3d ___, and we “review for correctness a district court’s

interpretation of constitutional law.” Nichols v. Dept. of Just., 2011 MT 33, ¶ 8, 359

Mont. 251, 248 P.3d 813. Likewise, to the extent a district court’s ruling is based on

interpretation of a statute, our review is de novo. State v. Derbyshire, 2009 MT 27, ¶ 19,

349 Mont. 114, 201 P.3d 811.




                                        7
                                       DISCUSSION

¶19    1. Did the District Court incorrectly conclude that, because the arresting officer

did not follow § 46-6-312, MCA, all evidence gathered after Kelm’s arrest should be

suppressed?

¶20    The District Court concluded that even though Krause had probable cause to arrest

Kelm, he failed to satisfy the requirements of § 46-6-312, MCA, when arresting her.

That statute provides:

       A peace officer making an arrest without a warrant shall inform the
       person to be arrested of the officer’s authority, of the intention to arrest
       that person, and of the cause of the arrest, except when the person to be
       arrested is actually engaged in the commission of or in an attempt to
       commit an offense or is pursued immediately after its commission, after
       an escape, or when the giving of the information will imperil the arrest.

Section 46-6-312, MCA. Because Krause did not satisfy those requirements, the District

Court concluded that his arrest of Kelm was unlawful and, consequently, the court

suppressed “all evidence the State gathered after Deputy Krause arrested [Kelm].”

¶21    For purposes of our analysis of this case, we begin with the State’s concession that

“at the moment Kelm was placed in handcuffs in the back of the patrol car, she was ‘for

all intents and purposes . . . arrested.’”2 The State argues that Kelm’s arrest was lawful

because Krause had probable cause to arrest her and that Krause satisfied the

requirements of § 46-6-312, MCA, because “the circumstances of the stop and arrest


2
  The State suggests on appeal that “[i]t was arguable on the facts presented that Kelm was not
‘under arrest’ during the short trip to the station to complete field sobriety tests, but only
reasonably and temporarily detained for appropriate investigative purposes made necessary
under the circumstances.” It agrees, however, that it is bound by its concession before the
District Court. We therefore assume without deciding that Kelm was under arrest.
                                            8
evident in the record are more than sufficient to establish that Kelm was informed of the

necessary statutory requirements[.]”

¶22    When interpreting a statute, “we look first to the plain meaning of the words it

contains.” Kluver v. PPL Mont., LLC, 2012 MT 321, ¶ 55, 368 Mont. 101, 293 P.3d 817.

When the language of a statute “is clear and unambiguous, the statute speaks for itself

and we will not resort to other means of interpretation.” Kluver, ¶ 55. The language of

§ 46-6-312, MCA, makes plain that, unless certain exceptions apply, a law enforcement

officer making a warrantless arrest “shall inform” the person being arrested of: (1) the

officer’s authority to arrest her; (2) the officer’s intention to arrest her; and (3) the reason

why she is being arrested.

¶23    During the suppression hearing, Krause agreed that “at no point in time did [he]

tell Ms. Kelm out at the scene of the stop that she was under arrest.” We are unconvinced

by the State’s argument that, based on the facts and circumstances of the traffic stop,

Kelm “was informed” that she was under arrest.

¶24    Whether or not Krause met the technical requirements of the statute, however, the

District Court erred in concluding that his failure rendered Kelm’s arrest unlawful. The

court determined that an officer’s failure to inform the arrestee of the arrest “is a

structural defect to the arrest itself rendering it unlawful.” We have held, however, that

the exclusionary rule will not apply to violations of statutory requirements unless the

violation affects the accused’s substantial rights. State v. West, 1998 MT 282, ¶¶ 8-9,

291 Mont. 435, 968 P.2d 289 (citing State v. Pipkin, 1998 MT 143, ¶ 27, 289 Mont. 240,


                                           9
961 P.2d 733); see also § 46-5-103(1)(b), (c), MCA. The purpose of statutes like § 46-6-

312, MCA, is to ensure that an officer communicates adequately his authority and actions

when there is no written warrant authorizing the arrest. State v. Bradshaw, 53 Mont. 96,

99, 161 P. 710, 711 (1916) (holding that the officer must “make known his official

character, or it must be known to the offender; else there is no obligation upon the latter to

submit”) (emphasis added). Kelm does not allege that she lacked actual knowledge of

Krause’s authority to arrest her, his intention to arrest her, or the reasons why he was

taking her into custody. Consequently, we conclude that Krause’s failure to use the

words, “you are under arrest,” when he placed her in the patrol car, did not impair Kelm’s

substantial rights.

¶25    The lawfulness of a warrantless arrest turns on the existence of probable cause.

An officer “must have probable cause to justify a warrantless arrest.”               State v.

Williamson, 1998 MT 199, ¶ 12, 290 Mont. 321, 965 P.2d 231 (citing § 46-6-311(1),

MCA). Thus, probable cause is the “standard set by the Constitution” by which the

reasonableness of a seizure is measured to determine whether the arrestee’s constitutional

rights have been protected. Henry v. U.S., 361 U.S. 98, 102, 80 S. Ct. 168, 171 (1959);

see also Carroll v. U.S., 267 U.S. 132, 161, 45 S. Ct. 280, 288 (1925). Probable cause

exists “where the facts and circumstances within an officer’s personal knowledge prove

sufficient to warrant a reasonable person to believe that someone is committing or has

committed an offense.” State v. Ellington, 2006 MT 219, ¶ 16, 333 Mont. 411, 143 P.3d

119 (citing Williamson, ¶ 12). If supported by facts demonstrating probable cause, a


                                          10
warrantless arrest will be held lawful. Virginia v. Moore, 553 U.S. 164, 171, 128 S. Ct.

1598, 1604 (2008). Krause lawfully arrested Kelm because he had probable cause to

believe that Kelm was driving under the influence of alcohol. He observed Kelm driving

her truck erratically across the center and fog lines of the highway, her eyes were

“bloodshot and glassy,” and the HGN test he administered indicated Kelm was

intoxicated. Kelm did not dispute that these facts were sufficient to establish probable

cause for her arrest.

¶26    With no indication that Kelm’s substantial rights were impaired, probable cause

for the arrest protects her constitutional right to be free from unreasonable seizures,

despite any noncompliance with the arrest statute. Applying that standard, Krause’s

arrest of Kelm was lawful. Because the arrest was lawful, Krause’s failure to satisfy all

of the requirements prescribed in § 46-6-312, MCA, did not require the suppression of

evidence obtained after the arrest. The District Court erred in concluding otherwise.

¶27    2. Did the District Court incorrectly conclude that the officer’s failure to advise

Kelm of her Miranda rights at the time of her arrest required suppression of all evidence

obtained after her arrest?

¶28    The District Court concluded that “[a]t the point of arrest, [Kelm] was entitled to a

Miranda warning.” Because Krause did not read Kelm her Miranda rights immediately

after arresting her, the court concluded that Kelm’s arrest was unlawful and it suppressed

all evidence collected by the State after the arrest. The State concedes that the answers to

two questions posed by Krause to Kelm while Kelm was in the patrol car should be


                                         11
suppressed. Nevertheless, the State contends that the court “erred when it suppressed

evidence obtained from Kelm that was not derived from custodial interrogation.” Kelm

was not entitled to a Miranda warning prior to the second HGN test, the field sobriety

tests that she completed at the jail, or the Intoxilyzer breath test, according to the State,

because the results of those tests were not self-incriminating statements that must be

suppressed in the absence of a Miranda waiver. We agree with the State that Kelm’s

responses to Krause’s two questions comprise the only evidence that must be suppressed.

¶29    The Fifth Amendment to the United States Constitution and Article II, Section 25

of the Montana Constitution both provide that no person shall be compelled, in any

criminal case, to be a witness against himself. State v. Larson, 2010 MT 236, ¶ 28, 358

Mont. 156, 243 P.3d 1130 (citing State v. Olson, 2003 MT 61, ¶ 13, 314 Mont. 402, 66

P.3d 297). When an individual “is taken into custody or otherwise deprived of his

freedom by the authorities in any significant way and is subjected to questioning,” he

“‘must be adequately and effectively apprised of his [Miranda] rights and the exercise of

those rights must be fully honored.’” Morrisey, ¶ 28 (quoting Miranda v. Arizona, 384

U.S. 436, 467, 478, 86 S. Ct. 1602, 1624, 1630 (1966)) (emphasis added); see also § 46-

6-107, MCA. Failure by law enforcement officers to provide a Miranda warning and

obtain a waiver of rights prior to a custodial interrogation “generally requires exclusion of

any statements obtained.” Morrisey, ¶ 28 (emphasis added).

¶30    Although the constitutional protections under Miranda are afforded during a

custodial interrogation, those protections generally do not attach during field sobriety


                                         12
tests or breath tests because “the privilege against self-incrimination does not extend to

real or objective evidence.” State v. Van Kirk, 2001 MT 184, ¶ 22, 306 Mont. 215, 32

P.3d 735; see also Schmerber v. Cal., 384 U.S. 757, 764, 86 S. Ct. 1826, 1832 (1966).

The Fifth Amendment “offers no protection against compulsion . . . to assume a stance, to

walk, or to make a particular gesture.” State v. Armfield, 214 Mont. 229, 235, 693 P.2d

1226, 1229-30 (1984) (overruled on other grounds, State v. Reavley, 2003 MT 298, ¶ 41,

318 Mont. 150, 79 P.3d 270). Consequently, a “mere request that the suspect perform a

series of sobriety tests, done without any interrogation of the suspect, does not constitute

a custodial interrogation” and does not require law enforcement officers to read a suspect

his or her Miranda rights prior to administering those tests. Van Kirk, ¶ 22; see also State

v. Thompson, 237 Mont. 384, 386-88, 773 P.2d 722, 723-24 (1989). Similarly, the Fifth

Amendment offers no protection against compulsion to submit to a breath test because

“[t]he results of a breath test are not self-incriminating communications,” but instead are

“unprotected ‘physical or real’ evidence.” Armfield, 214 Mont. at 235, 693 P.2d at 1229-

30; see also State v. Michaud, 2008 MT 88, ¶ 61, 342 Mont. 244, 180 P.3d 636. Because

a compulsory breath test is not a custodial interrogation, a law enforcement officer is not

required to read a suspect his or her Miranda rights prior to administering the test.

Missoula v. Forest, 236 Mont. 129, 133-34, 769 P.2d 699, 701-02 (1989).

¶31    The District Court erred in concluding that Krause’s failure to give Kelm a

Miranda warning immediately following her arrest required suppression of all evidence

subsequently obtained.     A Miranda warning is required only prior to a custodial


                                         13
interrogation. The State concedes that the District Court properly suppressed the two

self-incriminating statements Kelm made in response to Krause’s questions after he

placed her in the patrol vehicle. The results of the second HGN test, the field sobriety

tests, the Intoxilyzer test and other non-testimonial evidence gathered at the jail should

not have been suppressed, however, because those results are real or objective evidence

not protected by the right against self-incrimination. Accordingly, we reverse the District

Court’s suppression of that evidence.

¶32    3. Did the District Court incorrectly conclude that evidence seized from Kelm’s

vehicle must be suppressed?

¶33    The State argued that Krause lawfully seized the beer bottle and plastic cup

containing alcohol from Kelm’s truck without a warrant under the plain view doctrine,

which “permits the seizure of evidence that otherwise could not be seized without a

warrant[.]” State v. Lewis, 2007 MT 295, ¶ 24, 340 Mont. 10, 171 P.3d 731. The District

Court rejected the State’s argument that the seizure fell within the plain view doctrine

because it concluded that Krause was not “lawfully present” in Kelm’s truck when he

seized the evidence.

¶34    We use three criteria for determining whether a police officer’s seizure of

evidence was valid under the plain view doctrine: (1) “the officer must be lawfully at the

place from which he could plainly view the evidence”; (2) “the item must be in plain

view and its incriminating character be immediately apparent”; and (3) the officer “must

also have a lawful right of access to the object itself.” State v. Doyle, 1998 MT 195, ¶ 11,


                                         14
290 Mont. 287, 963 P.2d 1255. We addressed an issue similar to that raised by Kelm in

State v. Delao, 2006 MT 179, 333 Mont. 68, 140 P.3d 1065. A highway patrol officer

arrested Delao and placed him in the backseat of his cruiser while Delao’s vehicle, which

was parked on the side of the road, remained unsecured with the doors unlocked and the

windows opened. Delao, ¶¶ 5-6. As the officer attempted to secure the vehicle, he

seized a bottle of vodka in plain view in the vehicle. Delao, ¶¶ 7-8. We concluded that

the officer “had an obligation to secure Delao’s vehicle” so as to prevent damage to or

theft of the vehicle because doing so “fell within the ambit of the slight duty of care that

[the officer] owed to Delao” as a gratuitous bailee. Delao, ¶¶ 18-20 (citing State v.

Sawyer, 174 Mont. 512, 517-18, 571 P.2d 1131, 1134 (1977)). For that reason, we

concluded that the officer “was lawfully present inside Delao’s vehicle” when he seized

the bottle of vodka. Delao, ¶ 31.

¶35    Kelm argues that the District Court properly distinguished Delao because the

windows of Kelm’s truck were rolled up and the doors were locked.                The court

determined that “[t]here was no better chance that the contents of [Kelm’s] vehicle itself

would be damaged or taken if Deputy Krause left the lights on than if he did not.”

Although Kelm also contends that Krause exceeded his duty under Delao because he

stood “at the open door of Ms. Kelm’s pickup for more than a minute talking on the

phone” prior to seizing the evidence, she did not raise this argument before the District

Court and we refuse to consider it for the first time on appeal. State v. Ferguson, 2005

MT 343, ¶ 38, 330 Mont. 103, 126 P.3d 463.


                                         15
¶36    Consistent with precedent, we conclude that Krause’s decision to turn off the

lights in Kelm’s truck prior to driving her to the jail fell within the slight duty of care that

he owed Kelm as her gratuitous bailee. Delao, ¶¶ 18-20 (citing Sawyer, 174 Mont. at

517-18, 571 P.2d at 1134). Kelm’s truck was parked on the side of an icy highway in

sub-zero temperatures. It was reasonable for Krause to believe that, if he did not turn off

the truck’s lights, the truck’s battery would go dead while Kelm was performing her

sobriety tests. If she passed those tests, Krause would then have to return Kelm to a

vehicle parked on the side of the road in sub-zero temperatures that could not start. In

such an event, Krause would be slightly responsible for Kelm’s safety and the condition

of her truck. Given these circumstances, Krause made a reasonable effort to perform the

duty of care set forth in Sawyer and Delao. Delao, ¶ 20. In light of this conclusion, we

need not consider Kelm’s argument that her consent to have Krause turn off the

headlights in her truck was not freely given.

¶37    We hold that Krause was lawfully present in Kelm’s vehicle when he seized the

beer bottle and plastic cup. Delao, ¶ 31. Krause had lawful access to the beer bottle and

plastic cup. Those items were in plain view and the incriminating nature of those items

immediately was apparent. Accordingly, the District Court erred in granting Kelm’s

motion to suppress those items. See Delao, ¶ 31.

                                      CONCLUSION

¶38    The District Court erred in suppressing all of the evidence gathered after Kelm

was taken into custody, except for Kelm’s answers to two questions asked by Krause


                                           16
while Kelm was handcuffed and in the backseat of Krause’s patrol car. Because we

affirm the District Court’s suppression of those statements, Kelm “prevails on appeal” as

contemplated by § 46-12-204(3), MCA, and, pursuant to that statute, she must be allowed

to withdraw the guilty plea she entered in Justice Court. Section 46-12-204(3), MCA.

¶39   Affirmed in part, reversed in part, and remanded to the Sheridan County Justice

Court to provide Kelm the opportunity to withdraw her guilty plea and proceed to trial.



                                                /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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