by Wilton H. Strickland

I’ve never handled any DUI cases, but they are quite plentiful in my home State of Florida and my adopted State of Montana. The one time I nearly made it onto a jury was for a DUI case in Miami about twenty years ago. Although I went through the voir dire, the prosecutor rapidly eliminated me after learning that I’m an attorney. Before leaving the courthouse, I made sure to inform the other members of the jury pool that the prosecutor was wrong when asserting that they must convict even if they found that the accused was not impaired but had been driving over the legal limit for BAC. I explained that jury nullification has a rich history and empowers ordinary citizens to refuse to enforce a law that they find unjust. Indeed, a vote on a jury is often far more consequential than a vote at the ballot box.

A long time after that experience I found myself in Montana working with an attorney whose client confronted a very serious charge of DUI. Apparently, the prosecutor had added the client’s three prior convictions from New Mexico to the current case to make this a charge of aggravated DUI for a fourth offense. I was asked to find a way to exclude those prior convictions to keep this as an ordinary charge, and wouldn’t you know it, I found one.

In order to take into account a prior DUI conviction from another state for sentencing purposes in Montana, the conviction in the other state must be based on a DUI statute that is “similar” to Montana’s DUI statute. See State v. McNally, 2002 MT 160, ¶ 11, 310 Mont. 396, 50 P.3d 1080 (citing Mont. Code Ann. § 61-8-734(1)(a)). “[I]f another state’s [DUI] law allows a person to be convicted using a lesser standard than would be required in Montana for a conviction, the statutes are not similar for purposes of § 61-8-734(1)(a), MCA.” State v. Olson, 2017 MT 101, ¶ 11, 387 Mont. 318, 400 P.3d 214 (citations omitted). To make this comparison, a court must look at the statutes in effect at the time of the prior offense.

For example, if another state’s DUI statute allows for conviction when a driver is impaired “to the slightest degree,” this is not similar to Montana’s DUI statute and cannot be used to compute the total number of prior convictions, since it allows for conviction more easily than Montana does. See McNally, 2002 MT 160 at ¶ 22. At the time of the client’s prior convictions, New Mexico’s DUI statute allowed for conviction if the defendant was under the influence of alcohol at all, without regard to whether the defendant’s ability to drive had been diminished. As explained by New Mexico’s own courts, this makes the New Mexico DUI statute different from the Montana DUI statute, since the New Mexico statute allows for conviction even when the defendant is under the influence of alcohol “to the slightest degree.” See State v. Lewis, 184 P.3d 1050, 1058 (N.M. Ct. App. 2008) (distinguishing McNally). 

It was also important to note that New Mexico’s DUI statute during two of the prior incidents in question allowed for conviction if the defendant’s BAC was merely .08. By contrast, Montana’s DUI statute at that time (Mont. Code Ann. § 61-8-406) set a higher BAC threshold of .10. This again showed that the prior DUI convictions were easier to obtain in New Mexico and that the two statutes were not similar, confirming that the client’s DUI convictions should not be taken into account. See, e.g., State v. Olson, 2017 MT 101, ¶ 15, 387 Mont. 318, 400 P.3d 214 (holding that DUI statutes in Texas and Montana were similar because both required BAC of .08).

I used these arguments to draft a motion to dismiss the charge of aggravated DUI, which drew an irate opposition from the prosecutor after it was filed. But the prosecutor made futile efforts to confuse the issue by citing inapplicable case law and by encouraging the court simply to ignore the case law I had cited. In my reply, I explained the prosecutor’s errors and closed as follows:

Under these circumstances, it is incredible that the State would persist in arguing that New Mexico’s DUI statute is sufficiently similar to Montana’s. The State asks the Court to ignore the relevant court holdings; conduct a new statutory analysis with no frame of reference; and conclude that it makes no difference that the New Mexico statute imposes liability for impairment “to the slightest degree.” The Court should not make its decisions in a vacuum by disregarding jurisprudence that clearly supports the Defendant, an outcome that would harm not only the Defendant but also the orderly and consistent application of the law.

The court eventually ruled in our favor. My client and his client were both very grateful.

I have not examined this issue in other jurisdictions, but any DUI practitioners out there should give it a close look to find out whether your clients are being wrongfully charged with an aggravated offense.