                                           No. 05-333

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 77N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

RICKY DEAN ZANDER,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DC 03-298
                     Honorable Douglas G. Harkin, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Clinton H. Kammerer; Kammerer Law Offices,
                     Missoula, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; C. Mark Fowler,
                     Assistant Attorney General, Helena, Montana

                     Fred Van Valkenburg, Missoula County Attorney; Karen Townsend,
                     Deputy County Attorney, Missoula, Montana



                                                   Submitted on Briefs: March 14, 2006

                                                             Decided: April 18, 2006


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court 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     Ricky Dean Zander appeals from the judgment and sentence entered by the Fourth

Judicial District Court, Missoula County, upon his guilty plea to the felony offense of

operating a motor vehicle while under the influence of alcohol or drugs (DUI). Before

Zander pled guilty, the District Court denied Zander’s pretrial motions to dismiss the charges

and to suppress evidence. The court concluded the arresting officer had particularized

suspicion to approach Zander based on information from a 911 dispatcher that a citizen

reported a drunk driver had caused an accident in a parking lot and his confirmation of that

report on the scene with the driver of the struck vehicle. The court also determined the

officer had probable cause to arrest Zander based on the reports of drunk driving by the 911

caller and the driver of the struck vehicle, the officer’s observations of Zander, Zander’s

performance on standardized field sobriety maneuvers, Zander’s admission to drinking and

the result of his portable breath test. Moreover, the court determined Zander received

adequate Krause and Miranda advisories.

¶3     In addition, the District Court determined that a “no driving” restriction imposed by

the Justice Court and retained by the District Court as a condition of pretrial release did not
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render the implied consent advisories given to Zander invalid, did not constitute grounds for

concluding the State had waived prosecution or was estopped from prosecuting Zander, and

was not “punitive” for purposes of double jeopardy analysis. In determining the “no driving”

condition was not punitive, the court reasoned, in part, that the condition was authorized by

§ 46-9-108(1), MCA, because it was imposed to protect the public in light of Zander’s three

prior DUI convictions.

¶4     On appeal, Zander asserts certain witnesses lacked credibility because, among other

things, their testimony regarding particularized suspicion went beyond their statements in

prior affidavits and the officer’s report. Related to the assertion that the officer lacked

particularized suspicion of criminal activity, Zander argues he is entitled to the

confidentiality protections for accident reports set forth in § 61-7-114, MCA. He also

contends the evidence did not establish the Krause advisory was properly administered. In

addition, he posits that any information—which he does not specify—gathered between his

arrest and the reading of his Miranda rights at the detention center should be suppressed.

Moreover, he contends the “no driving” pretrial release condition rendered the implied

consent advisory invalid or, alternatively, constituted waiver or estoppel of the State’s further

prosecution of him. He also argues his prosecution after the imposition of the “no driving”

condition—which he characterizes as unusual and punitive—is a violation of constitutional

double jeopardy protections, the Canons of Judicial Ethics and certain statutory provisions.

¶5     We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

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opinions. It is manifest on the face of the briefs and the record that Zander’s appeal is

without merit because there clearly is sufficient evidence to support the District Court’s

findings of fact and the legal issues are clearly controlled by settled Montana law that the

District Court correctly interpreted.

¶6     Affirmed.


                                                 /S/ KARLA M. GRAY


We concur:


/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE




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