City of Missoula v. Armitage
335 P.3d 736
Mont.2014Background
- Missoula police investigated Amber Armitage after a 911 report of an impaired driver on Nov. 24, 2012.
- Armitage was stopped during an investigative process following officer observations and a PAST advisory.
- She refused a preliminary breath test (PAST) and was informed of potential state license suspension and Missoula misdemeanor penalties.
- Armitage was placed under arrest and transported to the police station, where she later consented to a post-arrest breath test that yielded a 0.134 BAC.
- Missoula ordinances imposed a $500 misdemeanor fine for refusing to submit to breath/blood testing, conflicting with neither state law nor implied-consent principles.
- The district court upheld the stop, ordinance validity, and consent to the post-arrest test; Armitage appealed those rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority of Missoula to criminalize refusal | Armitage contends Missoula lacks authority to create a misdemeanor for refusals. | Missoula self-government powers allow local regulation not prohibited by law; no conflict with state DUI regulation. | Missoula ordinances valid; not inconsistent with state law under 7-1-113(2). |
| Whether post-arrest breath test with consent was valid search | Refusal to PAST predetermined post-arrest testing; consent cannot cure unlawfulness. | Two tests permitted; PAST refusal does not bar post-arrest testing with consent. | Post-arrest breath test with Armitage’s consent was lawful; no improper search/seizure. |
| Ordinances impairing freedom of speech | Missoula ordinance punishes refusals, affecting expressive conduct. | Penalty targets conduct (refusal), not speech; no chilling effect shown. | Ordinances do not unlawfully impair free speech; conduct-based penalty upheld. |
Key Cases Cited
- State v. Turbiville, 2003 MT 340 (2003 MT 340) (right to refuse test is a statutory grace, not due process)
- Nichols v. Department of Justice, 2011 MT 33 (2011 MT 33) (statutory right of refusal affords greater protection than constitutional requirements)
- Plan Helena, Inc. v. Helena Regional Airport Authority Board, 2010 MT 26 (2010 MT 26) (advisory opinions and justiciability; mootness where controversy lacks standing)
- City of Helena v. Barrett, 245 Mont. 35, 798 P.2d 544 (1990) (1990) (implied consent framework and right to refuse breath test)
- D & F Sanitation Serv. v. City of Billings, 219 Mont. 437, 713 P.2d 977 (1986) (1986) (local government power subject to express prohibitions; implied preemption historically limited)