State v. Favel
2015 MT 336
Mont.2015Background
- Officer observed Favel driving erratically, nearly striking two pedestrians; he stopped and identified her as the driver.
- Officer observed signs of impairment (red/glassy eyes, slurred speech, odor) and failed field sobriety tests; Favel refused a portable breath test and later refused an Intoxilyzer breath test at the detention center.
- Officer obtained a warrant for a blood draw; lab testing later showed a BAC of 0.13%.
- State charged Favel with felony DUI (fourth or subsequent) and alternatively with operating with BAC ≥ .08 (felony). Trial resulted in a guilty verdict and a prison sentence.
- Before trial Favel moved in limine to exclude preliminary breath evidence and to bar prosecutor argument that her refusal shifted the burden of proof; the court excluded preliminary breath evidence but did not rule on the burden‑shifting argument; Favel did not object at trial to the prosecutor’s statements.
- During trial the prosecutor argued the refusal allowed an inference of intoxication under § 61‑8‑404(2), MCA, and repeatedly stated that Favel could have “proven her innocence” by submitting to a breath/blood test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s comments improperly shifted burden by saying defendant could have “proven her innocence” by submitting to a test | Favel: comments diluted presumption of innocence and shifted burden to defendant; prosecutorial misconduct | State: comments merely argued the statutory rebuttable inference under § 61‑8‑404(2) and did not shift burden; also argues issue not preserved because no contemporaneous objection | Court: Comments were improper (using burden‑of‑proof language to describe defendant’s conduct) but reversal not warranted; issue not preserved and plain‑error review denied |
| Whether pretrial motion in limine preserved the burden‑shifting issue for appeal without contemporaneous objection | Favel: motion in limine preserved the issue; district court was given opportunity to rule | State: motion did not preserve because court gave no definitive ruling; contemporaneous objection required | Court: motion in limine does not preserve an issue for appeal absent a definitive district court ruling; Favel failed to preserve issue |
| Whether prosecutor may comment on statutory inference from refusal (admissibility/argument) | Favel: prosecutor exceeded permissible commentary by using burden language (prove innocence) | State: statute allows jury to infer intoxication from refusal and prosecutor may argue consciousness of guilt | Court: Prosecutor may discuss the statutory rebuttable inference, but must avoid burden‑of‑proof language that suggests defendant must prove innocence |
| Whether plain error review warrants reversal despite lack of preservation | Favel: alternative argument that comments were plain error affecting fundamental rights and fairness | State: argues no review because issue not preserved and no plain error | Court: Plain error review applied; though comments improper, jury instructions, prosecutor’s repeated statements about State’s burden, and strong evidence (video, officer testimony, BAC .13) make reversal unnecessary; conviction affirmed |
Key Cases Cited
- In re Winship, 397 U.S. 358 (Due process requires proof beyond a reasonable doubt)
- Estelle v. Williams, 425 U.S. 501 (Court must guard against dilution of burden of proof)
- United States v. Olano, 507 U.S. 725 (plain‑error test and factors)
- State v. Finley, 276 Mont. 126 (Mont.) (adoption of common‑law plain error doctrine under Finley criteria)
- State v. Michaud, 342 Mont. 244 (Mont. 2008) (refusal admissible; rational link to consciousness of guilt)
- State v. Slade, 346 Mont. 271 (Mont. 2008) (prosecutor may comment on statutory rebuttable presumption)
- State v. Vukasin, 317 Mont. 204 (Mont. 2003) (motion in limine preserves issue only when district court issues definitive ruling)