                                                                                             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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