                                                                                         11/17/2017


                                      DA 16-0674
                                                                                     Case Number: DA 16-0674

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2017 MT 282



CITY OF MISSOULA,

          Plaintiff and Appellee,

     v.

JUSTIN WILLIAMS,

          Defendant and Appellant.



APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and For the County of Missoula, Cause No. DC-16-272
                    Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                    Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula,
                    Montana

            For Appellee:

                    Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant
                    Attorney General, Helena, Montana

                    Jim Nugent, Missoula City Attorney, Doug Schaller, Deputy City
                    Attorney, Missoula, Montana



                                               Submitted on Briefs: August 9, 2017

                                                          Decided: November 17, 2017


Filed:

                    __________________________________________
                                      Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1        Justin Williams (Williams) appeals from an order entered by the Fourth Judicial

District Court, Missoula County, affirming the Municipal Court of the City of Missoula’s

denial of his motion to suppress blood evidence in a DUI proceeding against him. We

affirm.

¶2        Williams presents the following issues for our review:

          1. Whether the District Court erred in affirming a telephonic search warrant
             issued pursuant to § 61-8-402(5), MCA, to draw Williams’s blood.

          2. Whether the District Court erred in failing to consider the merits of Williams’s
             contention that he did not receive the implied consent advisory prior to his
             blood draw.

                    FACTUAL AND PROCEDURAL BACKGROUND

¶3        On January 24, 2016, at 2:48 a.m., Missoula Police Deputy Jenna Volinkaty

(Volinkaty) observed Williams speeding in a rental truck, lose control of the vehicle,

collide with a utility pole and tree, and attempt to leave the scene. Using a radar device

before the collision, Volinkaty measured Williams traveling between 50 and 55 miles per

hour and another officer measured him traveling at 70 miles per hour and accelerating.

The speed limit in the area is 30 miles per hour.            Volinkaty smelled alcohol on

Williams’s breath, saw that his eyes were glassy, watery, and bloodshot, his clothing was

soiled, that he could not maintain his balance, and heard Williams slur his words.

Volinkaty arrested Williams for suspected DUI. Williams admitted he had consumed

alcohol, but refused to take an Intoxilyzer breath test. Volinkaty learned that in 2008,




                                               2
Williams was convicted of an alcohol-related driving offense under Arizona Revised

Statute § 28-1381.

¶4     Volinkaty contacted Judge Marie Anderson to obtain a telephonic search warrant

to draw Williams’s blood.      In her affidavit, Volinkaty described seeing Williams

speeding, travelling 50-55 miles per hour, losing control, and crashing into a utility pole

at 2:48 a.m.; Williams being taken into custody after he attempted to flee; observing

symptoms of his impairment including watery, bloodshot eyes, slurred speech, staggering

movements, soiled clothing, and mood swings. Volinkaty also notified Judge Anderson

that “the suspect has a prior conviction for DUI or substantially similar offense on

11/20/2008 in Arizona.” Judge Anderson authorized the issuance of the search warrant

and Volinkaty executed it by having Williams’s blood drawn. Williams had a blood

alcohol content (BAC) of 0.197.

¶5     The City of Missoula (the City) charged Williams with aggravated DUI pursuant

to § 61-8-465, MCA; reckless driving pursuant to § 61-8-301, MCA; and refusing to

submit to a blood or breath test pursuant to § 10.56.020 of the Missoula Municipal Code.

Williams filed a motion to suppress the blood draw evidence arguing it was obtained

pursuant to a search warrant that relied on a previous conviction from Arizona that “does

not qualify as a ‘similar’ offense under Section 61-8-402(5).” The Municipal Court

denied Williams’s motion to suppress “conclud[ing] that the Arizona DUI conviction

could be considered a ‘similar’ offense for purposes of seeking a telephonic search

warrant.” In its order, the Municipal Court recognized, however, that under State v.

McNally, 2002 MT 160, 310 Mont. 396, 50 P.3d 1080, the Arizona conviction could not


                                            3
be used to enhance Williams’s DUI sentence to a felony. Reserving his right to appeal

the adverse determination on his motion to suppress, Williams pleaded no contest to

aggravated DUI. The City dismissed the remaining two charges. The Municipal Court

sentenced Williams to six months in jail with all but five days suspended and imposed a

fine of $1,000.

¶6     Williams appealed the Municipal Court’s order denying his motion to suppress to

Montana’s Fourth Judicial District Court, Missoula County, and made an additional

argument that “Officer Volinkaty failed to include in her Affidavit of Probable Cause that

she had read to [Williams] the Implied Consent Advisory and therefore information about

his refusal is called into question.” The District Court affirmed the Municipal Court’s

order denying Williams’s motion to suppress on the same grounds as the Municipal

Court, concluding that the Arizona statute is “similar” to Montana’s DUI statute “for the

purposes of being able to seek a telephonic search warrant under the auspices of Mont.

Code Ann. §61-8-402(5).” The District Court declined to address Williams’s additional

argument “[b]ecause this issue was not previously raised and the municipal court had no

opportunity to rule on the issue . . . .”

¶7     Williams appeals.

                                STANDARDS OF REVIEW

¶8     On appeal from a municipal court, the district court functions as an intermediate

appellate court. Sections 3-5-303, 3-6-110, MCA; City of Bozeman v. Cantu, 2013 MT

40, ¶ 10, 369 Mont. 81, 296 P.3d 461. When a district court acts as an intermediate

appellate court, “[t]he appeal is confined to review of the record and questions of law,


                                            4
subject to the supreme court’s rulemaking and supervisory authority.”                Section

3-6-110(1), MCA. Our review of the case is as if the appeal was originally filed in this

Court and we examine the record independently of the district court’s decision. Stanley

v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. This Court reviews a ruling

on a motion to suppress evidence to determine whether the court’s findings of fact are

clearly erroneous and whether the court’s interpretation and application of the law are

correct. State v. Marcial, 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69. Although we

will review the municipal court record as if the appeal was originally filed in this Court,

our disposition pertains to the order of the district court from which the appeal is taken.

                                      DISCUSSION

¶9     1. Whether the District Court erred in affirming a telephonic search warrant
       issued pursuant to § 61-8-402(5), MCA, to draw Williams’s blood.

¶10    Williams challenges the legality of the search warrant application that allowed his

blood to be drawn. Williams contends on appeal that, under McNally, Arizona and

Montana’s DUI statutes are not “similar” and, without similarity, there was insufficient

evidence to authorize a blood draw under § 61-8-402(5), MCA. Therefore, Williams

concludes, “the search warrant was illegal and the blood draw results should have been

suppressed.”

¶11    The City responds that McNally is distinguishable because it addressed

“similarity” for sentencing purposes only, not for obtaining search warrants pursuant to

§ 61-8-402(5), MCA.      The City also contends, based upon the statutory history of

§ 61-8-402(5), MCA, that Arizona and Montana’s DUI statutes are similar. The City



                                              5
concludes that construing Arizona and Montana’s DUI statutes as not similar would

frustrate the Legislature’s intent when it authorized the drawing of a person’s blood

pursuant to the provisions of § 61-8-402(5), MCA.

¶12   While we ultimately conclude that McNally is not dispositive of the issue before

us, some discussion of McNally and its progeny are necessary to understand the legal

inquiry required in assessing the similarity of another state’s statutes with ours and

whether such an inquiry is appropriate in deciding if a search warrant should issue. The

statute at issue in McNally was a sentencing enhancement statute, § 61-8-734(1)(a),

MCA, which elevates a DUI offense to a felony if the offender has three or more prior

convictions under certain Montana laws or “a similar statute or regulation in another

state.” McNally, ¶ 11 (quoting § 61-8-734(1)(a), MCA). McNally was charged with a

fourth or subsequent DUI after having previously received four Driving While Ability

Impaired (DWAI) convictions in Colorado.       McNally, ¶ 3.    Because Colorado law

provides a DWAI offense and Montana’s law does not, McNally argued on appeal that

his prior convictions for DWAI “did not constitute previous convictions under a similar

statute for the purposes of enhancing Count I to Felony DUI under § 61-8-734, MCA,”

and he could, therefore, “be sentenced only for a first offense DUI, a misdemeanor.”

McNally, ¶ 3.

¶13   This Court conducted a careful review and comparison of the statutory scheme

pertaining to alcohol-related offenses for both Colorado and Montana, which required

consideration of the elements and degree of impairment for each state’s respective

offenses.   We agreed with McNally, differentiating between Colorado’s scheme of


                                           6
alcohol-related driving offenses, which provided for three offenses, DUI, DUI per se, and

DWAI, and Montana’s, which only provided for two, DUI and DUI per se. McNally,

¶¶ 7-10. Reasoning that the standard of impairment contained in Colorado’s DWAI

statute, which required impairment only to the “slightest degree,” was lower than the

standard of impairment in Montana’s DUI statute requiring the driver’s ability be

“diminished,” we determined “McNally’s prior convictions in Colorado do not constitute

‘conviction[s] for a violation of a similar statute . . . in another state,’ as required under

§ 61-8-734(1)(a), MCA . . . .” McNally, ¶¶ 18, 22 (quoting § 61-8-734(1)(a), MCA).

“[W]e conclude[d] it was error to enhance McNally’s DUI conviction to a felony based

on his convictions under Colorado’s DWAI statute.” McNally, ¶ 23. In sum, McNally

held that Colorado’s DWAI statute is not “similar” to Montana’s DUI statute within the

meaning of § 61-8-734(1)(a), MCA.

¶14    The Montana Legislature has also utilized the language, “similar statute,” relative

to requirements for obtaining blood or breath tests where probable cause exists to suspect

impaired driving. We begin with Montana’s statutory presumption of implied consent

that “[a] person who operates or is in actual physical control of a vehicle upon ways of

this state open to the public 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 or drugs in the person’s body.”            Section 61-8-402(1), MCA.

However, if an arrested person refuses to supply a BAC sample, the “refused test or tests

may not be given.” Section 61-8-402(4), MCA. Section 61-8-402(5), MCA, carves out

an exception to this rule:


                                              7
       If the arrested person has refused to provide a breath, blood, or urine
       sample under 61-8-409 or this section in a prior investigation in this state or
       under a substantially similar statute in another jurisdiction or the arrested
       person has a prior conviction or pending offense for a violation of 45-5-104
       [negligent homicide], 45-5-106 [vehicular homicide while under the
       influence], 45-5-205 [negligent vehicular assault], 61-8-401 [DUI],
       61-8-406 [DUI per se], or 61-8-411 [operating a vehicle under the influence
       of THC] or a similar statute in another jurisdiction, the officer may apply
       for a search warrant to be issued pursuant to 46-5-224 to collect a sample of
       the person’s blood for testing.

¶15    The Legislature added § 61-8-402(5), MCA, in 2011. Prior to its inclusion, the

statute “did not permit law enforcement to apply for a search warrant in DUI cases if an

arrested person refused to submit to BAC testing.” State v. Giacomini, 2014 MT 93,

¶ 10, 374 Mont. 412, 327 P.3d 1054. If an arrested person refused to submit to a blood or

breath test “the refused test or tests [could] not be given . . . .” Section 61-8-402(4),

MCA (2009). A blood sample could only be taken pursuant to a search warrant if

probable cause existed that an offense other than the underlying DUI had occurred.

Giacomini, ¶ 10 (citing Collins v. Dep’t of Justice, Div. of Highway Patrol, 232 Mont.

73, 78, 755 P.2d 1373, 1376 (1988)). The statutory framework was revised in 2011 by

the Legislature’s passage of Senate Bill 42, which authorized law enforcement to apply

for a search warrant for a blood draw where an arrested person refused to submit to BAC

testing and had a prior conviction for any of the listed driving, alcohol-related driving, or

drug-related driving offenses “or a similar statute in another jurisdiction.” The amended

bill was explained by a proponent:

       The question is: What do you do with these people who have figured out
       the game? That is—“If I refuse, they don’t have the evidence.” And you
       notice that the committee amended the bill for the repeat offenders just for
       that reason. Because there was a general idea that we shouldn’t do it for the


                                             8
      first refusal. And what we got here is a bill to try to compel the person that
      fits the profile of the repeater to give evidence . . . . When you tell them
      “You either give us a breath test or we go to the judge and get a warrant
      [for your blood,]” they’re going to give you a breath test and that is the
      object of the exercise.1

¶16   This Court addressed a challenge to § 61-8-402(5), MCA, in Giacomini.

Giacomini refused to submit to a breath test requested during a traffic stop. Giacomini,

¶ 4. Because Giacomini had refused to provide a BAC test in the past, law enforcement

applied for and received a warrant to draw his blood pursuant to § 61-8-402(5), MCA.

Giacomini, ¶ 5. On appeal, Giacomini argued that “his prior refusal of a breath test [was]

insufficient to establish probable cause to support a search warrant to draw his blood.”

Giacomini, ¶ 12. In response, we noted that “[t]he revisions made to § 61-8-402, MCA,

by Senate Bill 42 merely removed the statutory prohibition on seeking a search warrant

for a blood draw . . . .” Giacomini, ¶ 13. We explained that an arrested person’s prior

refusal does not by itself establish the necessary probable cause for a warrant, “but

merely permits police to apply for a warrant” under § 61-8-402(5), MCA. Giacomini,

¶ 13. Aside from his prior refusal, there was a substantial basis to support the judge’s

determination that probable cause existed in Giacomini’s case, including that he had

driven the wrong way down a one-way street; had watery, bloodshot eyes; smelled like

alcohol; swayed and staggered; and performed poorly on standard field sobriety tests.

Giacomini, ¶ 13. Section 61-8-402(5), MCA, does not supply probable cause, but allows



1
   Authorize Warrants to Obtain Blood or Breath Test in DUI Cases, Second Reading of Senate
Bill 42, 62nd Leg., at 1:24:30-1:25:23 (2011) (statement of Sen. Larry Jent), available at
https://perma.cc/D3BN-XH3X.


                                            9
a mechanism to gather evidence against those who have either refused a test in the past or

been charged with or convicted of various, but specifically enumerated offenses.

¶17   Here, Williams contends McNally is not limited to sentencing and asserts that

“[t]here is no meaningful distinction between the sentencing enhancement statute

[§ 61-8-734(1), MCA,] and the telephonic search warrant application statute

[§ 61-8-402(5), MCA] . . . .” Pointing out that both Arizona and Colorado’s DWAI

statutes include a threshold level of impairment described as to the “slightest degree,”

Williams argues that Arizona and Colorado’s DWAI statutes are the same and, based on

our holding in McNally, neither is similar to Montana’s DUI statute, which requires a

driver’s ability to be “diminished.” Williams urges us to expand McNally and hold that

because Montana’s DUI statute is not similar to Colorado’s DWAI statute, within the

meaning of § 61-8-734(1), MCA, Montana’s DUI statute is also not similar to Arizona’s

DWAI statute, within the meaning of § 61-8-402(5), MCA. While it is true that both

statutes require convictions for “similar” offenses in order to justify either an enhanced

sentence or the taking of a person’s blood, significant to resolving the underlying issue

are well-established principles for reviewing the sufficiency of a search warrant

application, which remain distinguishable from review of predicate convictions for

purposes of sentencing and other aspects of the criminal trial. Hence, when reviewing the

issuance of a search warrant pursuant to § 61-8-402(5), MCA, it is unnecessary for this

Court to determine whether Arizona and Montana have “similar” DUI statutes as we did

in McNally. Such an inquiry, which is entirely a question of law, is beyond review of the




                                           10
“facts” set forth within the four corners of the application and otherwise necessary for a

determination of probable cause.

¶18    Probable cause is required for a judge to issue a search warrant.

       A judge shall issue a search warrant to a person upon application . . . made
       under oath or affirmation, that:
       (1)    states facts sufficient to support probable cause to believe that an
       offense has been committed;
       (2)    states facts sufficient to support probable cause to believe that
       evidence, contraband, or persons connected with the offense may be found;
       (3)    particularly describes the place, object, or persons to be searched;
       and
       (4)    particularly describes who or what is to be seized.

Section 46-5-221, MCA. This Court follows the “totality of the circumstances” test set

forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983). State v. Reesman, 2000

MT 243, ¶ 24, 301 Mont. 408, 10 P.3d 83; overruled on other grounds by State v.

Barnaby, 2006 MT 203, ¶ 42, 333 Mont. 220, 142 P.3d 809. Under this test, to determine

if a search warrant should be issued, the judge evaluates the facts asserted within the four

corners of the warrant application and makes a practical, common sense determination

whether there is a fair probability that incriminating items will be found in the place to

which entry is sought.2 Reesman, ¶ 24 (citations omitted).


2
   Notwithstanding the limitation on the issuing judge to the “four corners” of the application,
search warrants must be supported by probable cause—a different standard from preponderance
of the evidence applicable to whether a conviction is valid for purposes of sentencing
enhancement. State v. Maine, 2011 MT 90, ¶ 13, 360 Mont. 182, 255 P.3d 64; State v. Krebs,
2016 MT 288, ¶ 12, 385 Mont. 328, 384 P.3d 98. Probable cause, the standard upon which a
search warrant may issue, is lower than a preponderance of the evidence, the standard required to
establish the existence of prior convictions. Furthermore, probable cause is a less onerous
standard than determining whether a prior conviction from a different state was pursuant to a
“similar statute” for sentencing enhancement purposes. This Court will review a district court’s
determinations of similarity to determine if its conclusions of law were correct as a matter of
law. Our review under such circumstances is plenary. McNally, ¶ 5.


                                               11
¶19    Williams does not dispute that he was convicted under Arizona Revised Statute

§ 28-1381 or argue that there were insufficient facts to demonstrate probable cause he

was driving while impaired. Nor does Williams dispute the validity of Volinkaty’s

observations. Williams’s entire argument is based upon Volinkaty’s inclusion in the

affidavit of his prior Arizona conviction, which he maintains is not similar to any statute

in Montana. Williams thus presents a challenge to the validity of Volinkaty’s affidavit.

We adopted the Franks procedure for challenging the validity of a warrant affidavit in

State v. Sykes, 194 Mont. 14, 20, 663 P.2d 691, 695 (1983); overruled on other grounds

by State v. Long, 216 Mont. 65, 69, 700 P.2d 153, 156 (1985). “[A] warrant affidavit

must set forth particular facts and circumstances underlying the existence of probable

cause, so as to allow the magistrate to make an independent evaluation of the matter.”

Franks v. Delaware, 438 U.S. 154, 165, 98 S. Ct. 2674, 2681 (1978). “There is, of

course, a presumption of validity with respect to the affidavit supporting the search

warrant.” Franks, 438 U.S. at 171, 98 S. Ct. at 2684. A “judge or magistrate is required

to evaluate only the facts asserted within the four corners of a search warrant application.

If inaccurate or misleading information is included in that application, it must be excised

from the application regardless of whether that information was included mistakenly,

negligently, or intentionally.” State v. Worrall, 1999 MT 55 ¶ 33, 293 Mont. 439, 976

P.2d 968 (citation omitted); overruled on other grounds by State v. Kasparek, 2016 MT

163, ¶ 12, 384 Mont. 56, 375 P.3d 372. “This Court’s only function is to ensure that the

issuing judicial officer had a substantial basis to determine that probable cause existed”

and we pay great deference to a magistrate’s determination. State v. Estes, 2017 MT 226,


                                            12
¶ 24, 388 Mont. 491, ___ P.3d ___ (citation omitted). “When the issuance of a search

warrant is based in part on illegal information, the reviewing court shall excise the

illegally obtained information from the application for search warrant and review the

remaining information de novo to determine whether probable cause supported the

issuance of a search warrant.”         Estes, ¶ 24 (citation omitted).         Significantly,

§ 61-8-402(5), MCA, does not alter how search warrants are to be issued and reviewed.

¶20    Our review, and that of the issuing judge, is constrained to the facts within the four

corners of the affidavit and we decline to conduct a legal inquiry into the similarity of

Montana’s statutes with those of Arizona. At a minimum, such an inquiry would require

consideration of information not within the application and beyond the requirements for

establishing probable cause.     See Reesman, ¶ 24; § 46-5-221, MCA.             Williams’s

contention is based on a conclusion of law reached after conducting a legal analysis of

the alcohol-related statutory schemes in Arizona, Colorado, and Montana, as well as

specific statutory elements. The determination of whether two statutes are “similar” is

not informed by facts contained within the affidavit which were observed by the officer

in the commission of the alcohol-related offense and any inquiry of statutory similarity

for purposes of § 61-8-402(5), MCA, which is beyond the affiant’s averment that they are

similar, is outside the four corners of the affidavit and unnecessary. Here, Volinkaty

represented under oath that Williams had a prior conviction “for a DUI or substantially

similar offense on 11/20/2008 in Arizona.” Neither Volinkaty nor Judge Anderson is

compelled to conduct an exhaustive legal analysis into “similarity” of the statutes in order

to meet the requirements of § 61-8-402(5), MCA, for issuance of a search warrant.


                                             13
¶21    Finally, we would be remiss if we failed to note that conducting such an analysis

would place an impractical or impossible burden on police officers and issuing judges

prior to applying for or issuing a search warrant. Such a requirement would be time

consuming and DUI investigations are time-sensitive by nature because the evidence of

the offense metabolizes out of the driver’s bloodstream simply by the passage of time.

We are also confident that if the Legislature is dissatisfied with our interpretation made

here, it will exercise its authority and determine otherwise.

¶22    We conclude that conducting a “similarity” analysis of Arizona and Montana DUI

statutes—a question purely of law—would go beyond the four corners of the affidavit. In

the absence of inaccurate, misleading, or illegally obtained information, it was

unnecessary to excise from the affidavit Volinkaty’s representations that Williams had a

prior conviction in Arizona for DUI.         The District Court did not err in denying

Williams’s motion to suppress.

¶23    2. Whether the District Court erred in failing to consider the merits of Williams’s
       contention that he did not receive the implied consent advisory prior to his blood
       draw.

¶24    Williams argues generally that the warrant requirements were not met and that the

City failed to demonstrate that they were met. Williams more specifically argues that

Volinkaty failed to read the implied consent advisory. This failure, Williams argues, is

fatal to the search warrant application’s validity. Williams also faults the District Court

for failing to address this argument. The City responds that Williams failed to raise this

issue in the Municipal Court and that issues raised for the first time on appeal are not

addressed.


                                             14
¶25    Those who operate a motor vehicle in the state of Montana have impliedly

consented to submit to a blood or breath test for the purpose of determining the presence

or amount of alcohol or drugs in their body. Section 61-8-402(1), MCA. “[D]ue process

requires that the arresting officer inform the accused of his or her right to obtain an

independent blood test, regardless of whether the accused consents to the test designated

by the officer.” State v. Strand, 286 Mont. 122, 126, 951 P.2d 552, 554 (1997); overruled

on other grounds by State v. Minkoff, 2002 MT 29, ¶ 14, 308 Mont. 248, 42 P.3d 223.

This advisory, derived from principles of fairness and due process, is called the implied

consent advisory.

¶26    “The rule is well established that this Court will not address an issue raised for the

first time on appeal. The reason for the rule is that it is fundamentally unfair to fault the

trial court for failing to rule on an issue it was never given the opportunity to consider.”

State v. Gomez, 2007 MT 111, ¶ 21, 337 Mont. 219, 158 P.3d 442 (quotation and

citations omitted). When the district court acted as an intermediate appellate court, we

review the case as if the appeal was originally filed in this Court, examining the record

independently of the district court’s decision. Stanley, ¶ 26.

¶27    Our review of the record reveals the only issue raised in the Municipal Court was

whether “the blood evidence obtained pursuant to the search warrant should be

suppressed because [Williams’s] previous conviction from Arizona does not qualify as a

‘similar’ offense under Section 61-8-402(5).”        It is clear from the briefing in the

Municipal Court, that the parties agreed that the implied consent advisory had been

given. Both parties referred to Volinkaty providing an implied consent advisory to


                                             15
Williams prior to his refusing to provide a BAC sample. We conclude that whether

Volinkaty supplied the implied consent advisory was not at issue in the Municipal Court

and the District Court correctly declined to address the matter. For the same reason, we

also decline to address Williams’s contention that the search warrant is invalid because

Volinkaty failed to give him the implied consent advisory.

                                    CONCLUSION

¶28   The decision of the District Court affirming the Municipal Court’s denial of

Williams’s motion to suppress is affirmed.


                                                  /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER




Justice Dirk Sandefur, specially concurring.

¶29   I concur that the City’s application for a DUI search warrant stated sufficient

probable cause to believe that Williams was driving under the influence of alcohol in

violation of § 61-8-401, MCA, and that he waived his assertion of error regarding the

implied consent advisory requirement by failing to raise it in Municipal Court. Thus, I

concur that the Municipal Court did not err in denying Williams’ motion to suppress the

blood alcohol content (BAC) evidence obtained by the Missoula Police pursuant to a

post-refusal DUI search warrant. However, I disagree that the validity of the Municipal


                                             16
Court’s search warrant depends on compliance with § 61-8-402(5), MCA, and that the

warrant application complied with the similarity requirement of § 61-8-402(5), MCA.

Rather than attempt to shoehorn the warrant into § 61-8-402(5), MCA, I instead would

affirm on the alternative basis that, regardless of whether Williams’ prior Arizona DUI

conviction occurred under a legal standard of liability similar to §§ 61-8-401 and -406,

MCA, the Municipal Court lawfully issued the search warrant on probable cause of DUI

as independently authorized by § 46-5-221, MCA (general authorization for issuance of

search warrants on probable cause of criminal activity).

¶30    Standing impassably in the path of affirming the Municipal Court’s search warrant

under § 61-8-402(5), MCA, is the express statutory requirement that Williams must have

had a prior Arizona DUI conviction under a legal standard of liability “similar” to

§§ 61-8-401 and -406, MCA (Montana DUI and DUI per se). See § 61-8-402(5), MCA.

Unlike the Colorado statutes at issue in McNally, which had three different classes of

DUI offenses,1 Montana and Arizona have only two base DUI offenses―DUI and DUI

per se.      See §§ 61-8-401(1)(a), (3), and -406(1)(a), MCA; Ariz. Rev. Stat.

§ 28-1381(A)(1) and (2). While Arizona and Montana similarly define DUI per se, see

§ 61-8-406(1)(a), MCA (driving or being in actual physical control of a noncommercial

vehicle with BAC of 0.08 or more), and Ariz. Rev. Stat. § 28-1381(A)(2) (driving or

being in actual physical control of a vehicle with an “alcohol concentration of 0.08 or

more”), Arizona defines alcohol-based DUI more broadly than § 61-8-401(1)(a) and (3),


1
  See Colo. Rev. Stat. § 42-4-1301(1)(a), (f), (g) (DUI, DUI per se, and “driving while ability
impaired” to the “slightest degree”).


                                              17
MCA (driving or being in actual physical control of a vehicle when person’s “ability to

safely operate a vehicle has been diminished” by alcohol intake). Compare Ariz. Rev.

Stat. § 28-1381(A)(1) (driving or being “in actual physical control of a vehicle . . .

[w]hile under the influence of an intoxicating liquor . . . if the person is impaired to the

slightest degree”).   See also State v. Miller, 245 P.3d 454, ¶ 7 (Ariz. App. 2011)

(construing Arizona DUI definition). The Arizona “impaired to the slightest degree”

standard requires proof of a lesser degree of impairment than § 61-8-401, MCA

(diminished “ability to safely operate a vehicle”). A person who commits the offense of

DUI under Arizona law does not necessarily commit the offense of DUI under

§ 61-8-401, MCA.       Consequently, the State inaccurately represented in the search

warrant application that Williams had a prior DUI conviction under a standard of

criminal liability “similar” to §§ 61-8-401 and -406, MCA.

¶31    As recognized by the Court, the mechanism for judicial review of the sufficiency

of a search warrant application is our constitutionally-mandated Worrall standard of

review requiring excise of inaccurate or misleading factual statements set forth in the

original search warrant application and then reassessment of whether what remains is

sufficient to establish probable cause for issuance of the warrant. Worrall, ¶¶ 32-33

(adopting Montana constitutional standard more stringent than federal Franks standard).

If what remains in original application is not sufficient to establish the necessary probable

cause, the reviewing court must void the warrant and suppress the fruits of the search.

Worrall, ¶¶ 32-33.




                                             18
¶32   If, as the Court implies, the validity of the Municipal Court’s search warrant

depends on § 61-8-402(5), MCA, I would extend and similarly apply our Worrall

standard not only to the constitutionally-required probable cause review of search warrant

applications but also to review of the accuracy of the statutorily-required assertion in a

search warrant application under § 61-8-402(5), MCA, that the suspect had a prior DUI

conviction under a standard of criminal liability similar to §§ 61-8-401 and -406, MCA.

Under Worrall, lower court findings of fact would continue to be subject to a clearly

erroneous standard of review, but the related question arising under § 61-8-402(5), MCA,

of whether a statute from another jurisdiction imposes a standard of criminal liability

“similar” to §§ 61-8-401 and -406, MCA, would be a pure question of law necessarily

subject to de novo review for correctness. Here, straightforward application of our

Worrall standard would result in the unavoidable conclusion that the search warrant

application inaccurately represented that Williams had a prior Arizona DUI conviction

under a standard of legal liability similar to §§ 61-8-401 and -406, MCA. The required

excision of that inaccurate information would then require invalidation of the warrant and

suppression of the resulting BAC evidence due to non-compliance with the express

similarity requirement of § 61-8-402(5), MCA.

¶33   The Court’s analysis avoids application of our Worrall standard, and with it any

meaningful review of the State’s compliance with § 61-8-402(5), MCA. The Court

correctly begins with the proposition that judicial review of the sufficiency of a search

warrant application is limited to review of the information within the four corners of the

application. But the analysis goes awry when it asserts that application of our Worrall


                                           19
standard to the similarity requirement of § 61-8-402(5), MCA, would improperly call for

a conclusion of law dependent on extrinsic legal analysis beyond the four corners of the

search warrant application. The Court’s reasoning overlooks the fact that Worrall allows,

if not necessarily requires, consideration of extrinsic information as a basis to assess the

truth and accuracy of the information set forth within the four corners of the application.

Regardless of whether the predicate information involves a matter of fact or matter of

law, the critical focus of our Worrall standard of review is whether the predicate

information alleged by the State as the legal justification for issuance of a search warrant

is true and accurate. The purported “impractical or impossible” time-consuming “burden

on police officers and issuing judges,” of verifying the accuracy of a sworn

representation in a search warrant application, has no bearing whatsoever on the critical

question of whether the court issued the warrant based on accurate information required

by law.

¶34    Neither the obvious public policy importance of effective DUI investigation and

prosecution, nor the practical inconvenience of requiring law enforcement to comply with

a legal requirement imposed by the Legislature, have any proper place in the construction

of the clear and unambiguous similarity requirement of § 61-8-402(5), MCA. If, as the

Court implies, the validity of DUI-related search warrants necessarily depends on

compliance with § 61-8-402(5), MCA, the sky will not fall and cripple DUI

investigations if the State has to provide accurate information to comply with the

statutory similarity requirement. Montana law enforcement officers have, or should have,

24/7 legal support from state and local prosecutors as needed. As Montana’s chief law


                                            20
enforcement officer, the Attorney General certainly has the resources and expertise to

support law enforcement and local prosecutors by surveying and publishing the various

comparative standards of DUI-related liability in other jurisdictions. Finally, any law

enforcement problem caused by compliance with § 61-8-402(5), MCA, is the sole

responsibility of the Legislature, not this Court. Accordingly, I respectfully disagree with

the Court’s stated rationale for upholding the validity of the search warrant in this case.

¶35    Proper resolution of this case merely requires recognition of the independent

availability of unrestricted DUI-related search warrants under § 46-5-221, MCA. Prior to

2011, Montana law did not specifically provide for DUI-related search warrants. The

two primary legal means available to law enforcement to obtain DUI-related BAC

evidence were:

       (1)    voluntary consent of the person to the implied consent request of a law
              enforcement officer for a preliminary breath test in the field on reasonable
              suspicion of a DUI-related offense, § 61-8-409(4), MCA, and/or a more
              precise breath or blood test following the person’s arrest on probable cause
              of a DUI-related offense, § 61-8-402(4), MCA; and

       (2)    involuntary seizure and scientific analysis (search) of a person’s blood upon
              a search warrant issued pursuant to § 46-5-221, MCA, on probable cause of
              criminal activity, whether DUI or non-DUI-related, and the presence of
              particularly described related evidence or contraband at or in a particularly
              described location.

As to the latter, unrestricted search warrants have always been available to law

enforcement “on probable cause to believe that an offense has been committed” and that

“evidence . . . connected with the offense may be found.” Section 46-5-221, MCA




                                             21
(emphasis added).2 As defined by §§ 61-8-401 and -406, MCA, DUI and DUI per se are

“offenses” as referenced in § 46-5-221, MCA. See § 46-1-202(15), MCA (definition of

“offense”).     Even before the 2011 Legislature expressly clarified the matter in

§ 46-5-224(1), MCA (specifically including detectable BAC in preexisting authorization

for seizure of “evidence” by warrant), measurable BAC has always been “evidence

connected with” DUI-related offenses for purposes of § 46-5-221, MCA.                       See

§§ 26-1-101(2), 46-5-224(1), and 61-8-404(1)(a), MCA.             Fifty years ago, the 1967

Legislature broadly crafted § 46-5-224, MCA, to “set out as expansively as possible the

items which may be seized under a search warrant.” State v. Quigg, 155 Mont. 119, 129,

467 P.2d 692, 697-98 (1970) (quoting Criminal Law Commission Comments) (emphasis

added); 1967 Mont. Laws 372.

¶36      In various forms since original enactment in 1971, Montana’s primary implied

consent statute has allowed DUI suspects to refuse to submit to warrantless implied

consent BAC tests subject only to temporary loss of driving privileges upon refusal. See

§ 61-8-402(4), MCA. From 1971 through 1995, § 61-8-402, MCA3 provided that, if an

arrested person “refuses . . . to submit” to a warrantless implied consent test, “none shall

be given.” Section 61-8-402(3), MCA (1995); 1971 Mont. Laws 640. From 1997 to


2
 The statute setting forth probable cause grounds for search warrants was enacted as part of the
Montana Code of Criminal Procedure, and codified as § 95-704, R.C.M. 1947 (1967 Mont. Laws
372), and renumbered as § 46-5-202, MCA. In 1991, the search warrant statute was amended
and renumbered to become § 46-5-221, MCA. 1991 Mont. Laws 3030. Telephonic search
warrants were similarly available well before 2011. See §§ 46-5-202(3)-(5), MCA (1985) and
46-5-222, MCA (1991).
3
    Formerly numbered § 32-2142.1, R.C.M. 1947.



                                              22
date, § 61-8-402, MCA, has similarly provided that, if a person “refuses . . . to submit” to

a warrantless implied consent test, “the refused test . . . may not be given.” Section

61-8-402(4), MCA; 1997 Mont. Laws 492.4 This clear and unequivocally plain limiting

language in Montana’s implied consent statutes has always applied only to the

warrantless post-refusal BAC tests authorized by the statutes. The plain language of

Montana’s     implied consent       statutes   has    never barred      or   otherwise     limited

warrant-authorized seizures and searches of DUI-related blood samples under the

independent authority of § 46-5-221, MCA.

¶37    Nonetheless, despite clear and unequivocal statutory language to the contrary,

widespread misconception has long existed that the limiting language of §§ 61-8-402(4)

and -409(4), MCA, not only barred warrantless post-refusal DUI-related seizures of BAC

evidence but also warrant-authorized DUI-related seizures.5                  The long-standing

misconception stems from a too cursory and undiscerning analysis of our decision in

Collins v. Montana Dept. of Justice, 232 Mont. 73, 755 P.2d 1373 (1988). In the

anomalous context of a civil assault and battery action against an investigating Montana

Highway Patrol officer and the State, we considered whether the limiting language

§ 61-8-402(3), MCA (1983), barred post-refusal, warrant-authorized blood seizures as the

lynchpin for determining whether the officer and the State had qualified immunity from
4
  Montana’s supplemental implied consent statute authorizing warrantless preliminary alcohol
screening tests (PAST) has always similarly provided that, “if a person refuses to submit to a test
under this section, a test will not be given.” Section 61-8-409, MCA; see 1995 Mont. Laws
2081.
5
  See Hearing on S.B. 42, before the Mont. Sen. Jud. Comm., 62nd Leg. Reg. Sess.
00:43:37-01:23:14 (Jan. 20, 2011) and Hearing on S.B. 42 before the Mont. House Jud. Comm.,
62nd Leg. Reg. Sess. 00:58:22-01:25:59 (March 17, 2011).


                                                23
the plaintiff’s civil assault and battery claims. Collins, 232 Mont. at 77-78, 755 P.2d at

1375-76.     Whether the limiting language in § 61-8-402(3), MCA (1983), barred

post-refusal, warrant-authorized, DUI-related seizure of BAC evidence was not squarely

at issue. Rather, based on the State’s concession, we assumed, without analysis, that

§ 61-8-402(3), MCA (1983), barred post-refusal DUI-related search warrants. Based on

that uncontested assumption, we merely held that the district court erroneously denied

qualified immunity to the officer and State because the limiting language in the implied

consent statute in any event did not bar warrant-authorized post-refusal blood seizures

based on non-DUI-related offenses. Collins, 232 Mont. at 77-78, 755 P.2d at 1375-76.6

In 2014, we perpetuated the misconception by cursorily stating, without analysis, that the

limiting language in the pre-2011 implied consent statute “did not permit law

enforcement to apply for a search warrant in DUI cases if an arrested person refused to

submit to BAC testing.” Giacomini, ¶¶ 10-11 (citing Collins, 232 Mont. at 78, 755 P.2d

at 1376).

¶38    However, upon our first opportunity to squarely construe the meaning of the

limiting language in § 61-8-402(4), MCA, we clarified that our contrary statement in

Giacomini was mere dicta and held that the still-present limiting language in

§ 61-8-402(4), MCA, applies only to warrantless post-refusal BAC tests, not DUI-related
6
  Aside from Collins’ manifestly limited scope and further undermining it as authority aiding in
the construction of § 61-8-402, MCA, our reasoning was suspect given that the non-DUI-related
“offense” upon which we distinguished application of the implied consent statute was not an
“offense” for purposes of the qualified immunity/scope of employment matter at issue. The
non-DUI-related “offense” was merely a suspected violation of an alcohol restriction imposed as
a condition of the DUI suspect’s preexisting probation and, thus, beyond the scope of officer’s
duty to investigate and enforce absent prior authorization of the suspect’s probation officer. See
§ 46-1-202(15) and (17), MCA (definitions of an “offense” and “peace officer”).


                                               24
blood draws independently authorized by search warrant. State v. Minett, 2014 MT 225,

¶¶ 12-17, 376 Mont. 260, 332 P.3d 235. Though the case did not involve a search

warrant issued after an implied consent refusal, Minett remains important here because

our plain meaning construction of the limiting language of § 61-8-402(4), MCA, did not

depend on the presence or absence of an implied consent refusal. See Minett, ¶¶ 12-17.

Minett merely recognized what should have been obvious all along―the limiting

language of § 61-8-402(4), MCA, expressly applies only to warrantless post-refusal

DUI-related seizures of BAC evidence.       Consequently, contrary to the longstanding

misconception and our now superseded dicta in Giacomini, DUI-related search warrants

have always been, and remain, available to law enforcement under the general authority

of § 46-5-221, MCA, without any requirement for a prior DUI conviction or implied

consent refusal. The only question is whether, in enacting Senate Bill 42, the 2011

Legislature in any way limited the preexisting availability of DUI-related search warrants

under the independent authority of § 46-5-221, MCA.

¶39   In a well-intentioned effort to enhance effective enforcement of Montana’s DUI

laws by closing a misperceived loophole protecting DUI-related offenders, the 2011

Legislature revised Montana’s implied consent statutes to expressly make post-refusal

search warrants available to law enforcement to obtain otherwise unavailable BAC

evidence against repeat DUI offenders. Section 61-8-402(5), MCA; 2011 Mont. Laws

1164. The new provision defined a repeat DUI offender as a person who has a prior

DUI-related conviction or implied consent refusal under Montana law “or a similar

statute in another jurisdiction.” Section § 61-8-402(5), MCA. Given the Legislature’s


                                           25
narrow focus on repeat offenders and the widespread misconception that Montana’s

existing implied consent statutes barred law enforcement from obtaining post-refusal

DUI-related search warrants, it is not surprising that nothing in the express language,

title, or legislative history of Senate Bill 42 evinces any legislative intent to affirmatively

limit the preexisting availability of DUI-related search warrants under § 46-5-221, MCA.

The new warrant exception, § 61-8-402(5), MCA, and accompanying amendments to

§§ 61-8-402(4) and -409(4), MCA, make sense only under the then-prevailing

misconception that the preexisting implied consent statutes barred both warrantless and

warrant-authorized post-refusal seizures of BAC evidence.                Regardless of the

Legislature’s clear intent to limit the availability of the new warrant authorization,7

legislation enacted to partially plug a perceived loophole in DUI enforcement cannot

logically be construed as legislative intent to affirmatively limit an independently

available, preexisting search warrant authorization the Legislature did not believe existed.

7
  Under the misconception that DUI-related search warrants were not then available under
existing law, and consistent with the express limiting language in the proposed new section,
§ 61-8-402(5), MCA, the sponsor of SB 42, Sen. Jim Shockley, explained to the House Judiciary
Committee that the new warrant authorization would be available only upon a second or
subsequent DUI offense or implied consent refusal, to wit:
        [R]ight now, the way that the statutes are written, you cannot get a warrant from a
        court to draw blood from a suspect who the officer believes is impaired by alcohol
        or drugs. . . . What this does provide is a constitutional way for law enforcement
        to conduct a search to gather evidence against a person believed to have
        committed a crime. . . . [But] there’s a mulligan. I don’t golf, but I understand that
        if you golf and you mess up the first shot . . . it doesn’t count. And that’s what this
        is, a mulligan. This bill does not apply, you can’t get a warrant, unless the person
        has refused to cooperate with law enforcement before, refused to either blow or
        give blood, or has a . . . previous DUI, or is awaiting trial on DUI. In other words,
        this is the second mistake.

Hearing on S.B. 42, House Jud. Comm., 62nd Leg. Reg. Sess. 00:58:58-1:00:37 (March 17,
2011).


                                              26
Though certainly creating unnecessary ambiguity between statutes, the 2011 revisions to

§ 61-8-402, MCA, simply did not supersede, limit, or otherwise affect the preexisting

availability of DUI-related search warrants under § 46-5-221, MCA. Thus, unrestricted

DUI-related search warrants remain available to law enforcement under § 46-5-221,

MCA, unaffected by the limiting language in § 61-8-402(5), MCA.

¶40    In the continuing absence of any statutory provision handcuffing law enforcement

by clearly and unequivocally limiting the long-standing independent availability of

unrestricted DUI-related search warrants under § 46-5-221, MCA, I would hold that,

regardless of the inaccurate statement in the warrant application that Williams had a prior

out-of-state DUI conviction under a statute similar to §§ 61-8-401 or -406, MCA, the

Missoula Police lawfully seized his blood pursuant to a post-refusal search warrant

properly issued by the Municipal Court in accordance with the independent authority of

§ 46-5-221, MCA. I would further respectfully suggest that the Legislature review and

clean up this mess at its earliest convenience.



                                                  /S/ DIRK M. SANDEFUR




                                             27
