State v. Faber

197 P.3d 941

2008 MT 368

346 Mont. 449

STATE of Montana, Plaintiff and Appellee, v. Timothy FABER, Defendant and Appellant.

No. DA 07-0497.

Supreme Court of Montana.

Submitted on Briefs July 8, 2008.

Decided November 10, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender, Shannon McDonald, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Timothy Faber (Faber) appeals his conviction in the Tenth Judicial District, Fergus County, for felony driving under the influence of alcohol (DUI), fourth or subsequent offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 At approximately 12:45 a.m. on February 18, 2006, Faber was driving his car in Lewistown, Montana, when he was stopped by Fergus County Sheriff's Deputy Josh Otto (Deputy Otto). Deputy Otto, traveling in the opposite direction of Faber on Seventh Avenue in Lewistown, noticed that Faber's car appeared to be stopped with its headlights on. At the time, it was roughly twenty degrees below zero and there were spots of snow and ice on the road. Deputy Otto later testified that he was concerned for the welfare of the driver given the weather conditions at the time. After passing Faber's automobile, he then turned his car around to follow it in order to make sure that the driver did not need assistance.

¶ 3 Faber drove south on Seventh Avenue at a very low speed. As he did so, he passed through three intersecting streets with stop signs. Although he stopped at each stop sign, from Deputy Otto's perspective Faber's brake lights did not appear to illuminate before, during, or after the stops. Deputy Otto testified that he then stopped Faber in order to check the condition of his brake lights. During the traffic stop, Deputy Otto noticed a smell of alcohol, and observed that Faber had difficulty retrieving requested documents. Faber did not have a license as it had been previously revoked. Deputy Otto suspected Faber was intoxicated and administered field sobriety tests. Deputy Otto subsequently arrested Faber for DUI and transported him to the Lewistown Police Department. Faber subsequently provided a breath sample which showed a blood alcohol level of. 146.

¶ 4 On February 19, 2006, Faber was charged in Justice Court with felony DUI, fourth or subsequent offense, driving with a suspended license, and operating a vehicle without liability insurance. He was later convicted and appealed to the District Court. An Information was filed in District Court on March 7, 2006. A jury trial for the DUI charge was later set for January 4, 2007. Prior to trial, Faber filed a motion to suppress all evidence gathered during Faber's arrest. The motion was based in part on the grounds that there was no particularized suspicion for the traffic stop. Faber maintained that Deputy Otto's report of the incident showed that he was not driving erratically, had not committed any moving violations, and further that there was no indication that Deputy Otto actually checked Faber's brake lights once he stopped him. Faber also argued that a review of the case law of this Court, as well as the convictions in city and justice courts in Lewistown and Fergus County from 2002 to present, showed no cases where failure to have a proper brake light formed the basis for a vehicle stop. Moreover, Faber argued that an independent evaluation of his brake lights by an auto mechanic after his arrest showed that they were working. Faber asserted that the reason his brake lights did not appear to be functioning properly during the time Deputy Otto was observing him was due to the fact that he was riding the brakes in response to the slick conditions of the streets. The District Court denied the motion. The jury convicted Faber of DUI on January 5, 2007.

¶ 5 The State had alleged that the current DUI charges, if proven, would be Faber's fourth DUI per § 61-8-731, MCA, and should therefore be treated as a felony instead of a misdemeanor. After his conviction, Faber's attorney requested verification of Faber's prior offenses and was initially informed there was no record of two alleged offenses which occurred in 2000 and 2001. Accordingly, Faber's attorney requested that his current conviction be treated as a second offense (a misdemeanor) instead of a fourth offense (a felony). The State resisted Faber's motion. The State pointed out that Faber's certified driving record showed the following prior convictions: (1) operating a motor vehicle with a blood alcohol concentration of .08 or greater on February 11, 2002; (2) DUI on April 16, 2001; and (3) DUI on July 3, 2000. Moreover, the State noted that it requested and received documentation of these prior convictions from Justice Court. The State argued that if Faber believed one of his prior convictions was constitutionally infirm, it was incumbent upon him to provide direct evidence establishing that his prior conviction was irregular, but that he had failed to do so. Accordingly, the State asked the District Court to either deny the motion and not grant a hearing, or direct Faber to make a showing sufficient to justify setting the matter for an evidentiary hearing.

¶ 6 In reply to the State's position, Faber argued that there was in fact no record of the proceedings relating to Faber's 2001 DUI conviction which occurred in Justice Court in Havre, and further, that there was no evidence he was afforded his right to an attorney and other constitutional rights during these proceedings. Although Faber conceded that his driving record showed a prior conviction, he argued that this was insufficient to justify the use of the 2001 DUI conviction for sentencing enhancement purposes. Faber argued that the use of any prior convictions for sentencing enhancement purposes had to meet certain constitutional standards set by this Court, and that the absence of a record showed that this standard was not met.

¶ 7 To resolve this issue, the District Court held an evidentiary hearing on June 12, 2007. At the start of the hearing, Faber amended his motion to clarify that he was challenging only the 2001 DUI offense, and that he was seeking to have his current conviction treated as a third offense. Faber himself testified at the hearing. With respect to the 2001 DUI proceedings, he testified that he had been picked up on the Rocky Boy Reservation and transported to Havre for processing, but said he was never read his rights by law enforcement or given a breathalyzer test because he was told the machine was not working. He later had an appearance before Justice of the Peace Carol Chagnon, and was sentenced for the DUI. He did not recall being given any documents to sign or going through his rights with Justice of the Peace Chagnon prior to an entrance of plea or sentencing. In contrast, Faber recalled being convicted of DUI's in 2000 and 2002 before the same Justice of the Peace, and recalled being read his rights at those times.

¶ 8 During cross examination, the State presented evidence from the 2000 and 2002 convictions showing Faber's signature on two waiver of rights forms. However, it was unable to produce any documentation from the 2001 DUI proceedings. Nonetheless, the State questioned Faber's assertion that he was not read his rights or did not realize he had a right to an attorney at the 2001 conviction, given the documentation of the 2000 and 2002 proceedings. When questioned, Faber claimed that he did not know at the 2001 appearance that he had the right to an attorney, because he had not been given a breathalyzer test at the time—the implication being that Faber thought he would have a right to counsel only if he had been given a breathalyzer test.

¶ 9 In light of Faber's testimony, the District Court concluded that Faber made a direct claim that he did not receive his rights when he pled guilty to the DUI charge in 2001, and shifted the burden to the State to prove by a preponderance of the evidence that he did have his rights read to him during the 2001 DUI proceedings and that those proceedings were not constitutionally infirm. To meet its burden, the State called Justice of the Peace Chagnon to testify. She testified that she generally recalled Faber, but did not have a specific recollection of the instances when he appeared before her. She further testified that it was her routine practice during the time the 2001 DUI proceedings occurred to read all defendants their rights and have them sign the appropriate forms. Although the State was not able to find the documentation for Faber's 2001 DUI conviction, it did produce and admit into evidence a document generated by the Hill County Justice Court showing a record of the 2001 DUI conviction.

¶ 10 Justice of the Peace Chagnon testified concerning the usual procedures that she would follow for defendants facing DUI charges, including advising them of their rights, the offenses for which they were charged, and the enhanced penalties for more than one DUI. Upon cross examination, Justice of the Peace Chagnon admitted that she had never seen the court-generated document showing Faber's 2001 DUI conviction, and also admitted that information regarding Faber's 2001 DUI citation could not be found in the Hill County Justice Court's records. On redirect by the State, Justice of the Peace Chagnon explained that although she had not previously seen the citation report produced by the Justice Court for the hearing, it had all the information that would appear on the citation (which is the document she would normally deal with in the original file). She also testified that the handwriting at the top of the printout was from the clerk who worked for her during the time in question and had been at the Justice Court for approximately thirteen years.

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