CITY OF MISSOULA, Plаintiff and Appellee, v. AMBER ARMITAGE, Defendant and Appellant.
No. DA 14-0024.
Supreme Court of Montana
Submitted on Briefs August 6, 2014. Decided October 9, 2014.
2014 MT 274 | 376 Mont. 448 | 335 P.3d 274
For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena; Jim Nugent, Missoula City Attorney, Gary Hendricks, Deputy City Attorney, Missoula.
CHIEF JUSTICE McGRATH delivered the Opinion of the Court.
¶1 Amber Armitage appeals from an order of the Fourth Judicial District Court, Missoula County, affirming a Municipal Court decision denying her motion to suppress the results of a breath alcohol test. We affirm.
¶2 We restate the following issues for review:
¶3 Issue One: Whether the City of Missoula has authority to enact ordinances creating a misdemeanor penalty for the refusal to submit to a requested breath test.
¶4 Issue Two: Whether conducting a post-arrest breath test with Armitage‘s consent was an unreasonable search and seizure.
¶5 Issue Three: Whether Missoula ordinances criminalizing the refusal to submit to a breath test unconstitutionally impair the freedom of speech.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 At approximately 10:00 p.m. on November 24, 2012, Missoula Police Officer Nathan Mattix responded to a 911 call reporting a possibly impaired driver. The caller reported she was following a vehicle that was traveling below the speed limit, not maintaining a constant speed, and drifting into other lanes of traffic. The caller gave a description of the vehicle and its license plate number. Officer Mattix identified the vehicle while it was stopped at a red light. Upon accelerating, the vehicle drifted to the right and its tires crossed the white line on the right side of the road. Officer Mattix also learned from the 911 dispatcher that the vehicle‘s registration was expired. Officer Mattix decided to conduct an investigative stop.
¶7 The driver of the vehicle was Amber Armitage. Officer Mattix read Armitage a preliminary alcohol screening test (PAST) advisory, which informed her that by operating a vehicle on public roads, she had given her implied consent to a preliminary breath test. He also notified her of her right to refuse that test. He informed her that pursuant to state
¶8 Officer Mattix placed Armitage under arrest and transported her to the police station for booking. Officer Mattix read Armitage a “full” implied consent warning, again notifying her that under Missoula сity ordinances, refusal to submit to a breath test is a misdemeanor offense punishable by a $500 fine. Armitage then agreed to provide a breath sample at the police station.1 The breath test showed that her blood alcohol concentration was 0.134, exceeding the legal limit of 0.08.
¶9 Armitage was charged with negligent endangerment, driving under the influence of alcohol, operating a vehicle with expired registration, failure to carry proof of insurance, and operation of a noncommercial vehicle with a blood alcohol concentration of 0.08 or more. She filed a mоtion to suppress all evidence obtained as a result of the investigative stop. The Municipal Court denied the motion. Armitage entered a conditional guilty plea to the charge of operating a vehicle with a blood alcohol concentration of 0.08 or more, reserving her right to appeal the Municipal Court‘s denial of her motion to suppress. The remaining charges were dismissed.
¶10 Armitage appealed the denial of her motion to suppress to the District Court, claiming Officer Mattix did not have a particularized and objective basis for making the investigative stop and violаted
STANDARD OF REVIEW
¶11 When reviewing the decision of a municipal court, a district court functions as an intermediate appellate court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. On appeal from the district court, this Court examines the record independently of the district court‘s decision, applying the appropriate standard of review. Cantu, ¶ 10. We review constitutional issues and questions of law de novo. City of Missoula v. Girard, 2013 MT 168, ¶ 10, 370 Mont. 443, 303 P.3d 1283.
DISCUSSION
¶12 Issue One: Whether the City of Missoula has authority to enact ordinances creating a misdemeanor penalty for the refusal to submit to a requested breath test.
¶13 Armitage claims the City of Missoula does not possess the authority to еnact ordinances creating a misdemeanor penalty for the refusal to submit to a requested breath or blood test, because state law already addresses the issue. We first address the nature and extent of the City‘s authority, and then examine the relevant statutes and ordinances governing the administration of breath and blood alcohol testing.
¶14 In 1997, the City of Missoula adopted a self-government charter. A local government operating under a self-government charter may exercise any power not prohibited by the Montana Constitution, state law, or the charter itself.
¶15 Local governments were given the option of adopting self-government charters under
¶16 The 1972 Constitution changed these basic assumptions about the role of municipalities. D & F Sanitation Serv., 219 Mont. at 445, 713 P.2d at 982. Because local governments with self-government powers are permitted to exercise any power not specifically prohibited, any limitation on their authority must be express, not implied. Am. Cancer Soc‘y v. State, 2004 MT 376, ¶ 10, 325 Mont. 70, 103 P.3d 1085. “The doctrine of implied pre-emption, by definition, cannot apply to local governments with self-government powers.” D & F Sanitation Serv., 219 Mont. at 445, 713 P.2d at 982 (citing Tipco Corp., 197 Mont. at 344, 642 P.2d at 1077). Therefore, our opinion in Herold, in which we held that the state had implicitly preempted local regulation of driving under the influence, has no applicability to ordinances enacted by the City of Missoula, which has self-government powers. See D & F Sanitation Serv., 219 Mont. at 445, 713 P.2d at 982; Herold, 130 Mont. at 154, 296 P.2d at 271.
¶17 The authority of a local government with self-government powers can be limited by express prohibitory language.
¶18 In areas affirmatively subjected to state regulation or control, local governments with self-government powers are expressly prohibited from exercising any power that is inconsistent with state law or administrative regulation.
¶19 State law provides for two separate tests to be given to persons suspected of driving under the influence: one before arrest, and one after.
¶20 If a person suspected of driving under the influence is arrested, a breath or blood test may be given, based upon probable cause, for the purpose of determining the presence of alcohol or drugs in the person‘s body.
¶21 Missoula‘s ordinances governing breath and blood alcohol testing of persons suspected of driving under the influence read as follows:
10.56.020 Unlawful to refuse to submit to a breath or blood alсohol and/or drug test. It is unlawful and constitutes a misdemeanor offense for any person operating or in actual physical control of a motor vehicle suspected of doing so under the influence of alcohol and/or drugs to refuse to submit to one or more breath or blood alcohol and/or drug tests to detect alcohol and/or drugs requested and designated by any peace officer as
defined by Montana State law. Prior to charging a person with a violation of this section a peace officer must inform the person requested to take the designated test that refusing thе breath or blood alcohol and/or drug test is a misdemeanor offense under Missoula Municipal Code and identify the penalties associated with the offense. If any arrested person refuses to submit to one or more breath or blood alcohol and/or drug test requested and designated by a peace officer as provided for pursuant to Montana state law, the refused test may not be given. However, the person refusing to submit to any such requested breath or blood alcohol and/or drug test may be charged with a misdemeanor offense pursuant to this section. 10.56.030 Penalties. The penalties for a viоlation of this chapter are established pursuant to this section. Incarceration is not a penalty for a violation of this chapter. A person convicted under this chapter shall be subject to a fine of $500.00, no portion of which may be suspended, waived or deferred by the court.
¶22 Missoula‘s ordinances imposing a $500 misdemeanor fine for refusing breath or blood testing are not less stringent than state law allowing administrative suspension of an individual‘s driver‘s license, and therefore are not inconsistent as defined by
¶23 Issue Two: Whether conducting a breath test with Armitage‘s consent after her arrest was an unreasonable search and seizure.
¶24 Armitage claims that because she refused to provide a breath sample during the investigative stop, she could not be asked to provide a sample again after her arrest. She cites
¶25 As discussed above, two distinct tests may be administered to a person suspected of driving under the influence of alcohol.
¶26 Armitage refused a PAST under
¶27 Issue Three: Whether Missoula ordinances criminalizing the refusal to submit to a breath test unconstitutionally impair the freedom of speech.
¶28 Armitage claims the Missoula ordinances imposing a $500 fine for refusing to submit to breath or blood testing unconstitutionally interfere with her right to say, “I refuse.” The ordinances proscribe conduct, not speech. A person who verbally informs the officer that he or she does not agree with the ordinances, but nevertheless submits to testing, may not be penalized. Conversely, an individual who does not say a word, but physically refuses to provide a sample, may be penalized. See Johnson v. Div. of Motor Veh., 219 Mont. 310, 314, 711 P.2d 815, 817 (1985) (“[R]espondent‘s conduct constituted an implied refusal to take the breath test.“). It is the act of refusing, not the speech accompanying that act, that triggers the misdemeanor penalty.
¶29 Moreover, Armitage was never charged under the ordinances in question, nor is there any evidence that the ordinances had a “chilling effect” on her speech during her interactions with Officer Mattix. Armitage was not penalized for refusing testing during the investigative stop. She later consented to testing at the police station, during what the District Court accurately observed to be a “chatty and overtly friendly exchange.” Armitage‘s freedom of speech was in no way inhibited.
¶30 Affirmed.
JUSTICES WHEAT, BAKER and COTTER concur.
Justice Laurie McKinnon, specially concurring.
¶31 I agree with the Court‘s decision to affirm the denial of Armitage‘s motion to suppress. I would do so, however, on the basis that Armitage presented no credible evidence that she was coerced into taking the breath test. I believe the Court‘s decision addressing the validity of the Missoula ordinances, therefore, amounts to an improper advisory opinion. Furthermore, since the Court has chosen nonetheless to express its views on the ordinances’ validity, I disagree with the
¶32 Initially, our decision today concerning the validity of the Missoula ordinances constitutes an improper advisory opinion. In Plan Helena, Inc. v. Helena Regional Airport Authority Board, 2010 MT 26, 355 Mont. 142, 226 P.3d 567, an action was filed in the First Judicial District Court regarding the proposal of thе Helena Regional Airport Authority Board (HRAA) to lease nine acres of its land to Blue Cross Blue Shield of Montana (BCBS). The primary issue concerned which statutory scheme within the Airport Authorities Act (
¶33 On appeal, we unanimously vacated the district court‘s orders and remanded with instructions to dismiss the action as nonjusticiable. We began with the well-established principles that the judicial power of Montana‘s courts is limited to justiciable controversies and that Montana courts, therefore, may not render advisory opinions. Plan Helena, ¶¶ 6, 9. We explained that the “cases” and “controversies” that are within the judicial power to determine must “admit[ ] of specific relief through decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract proposition.” Plan Helena, ¶ 9 (internal quotation marks omitted). We reiterated that courts have an independent obligation to determine whether jurisdiction exists—including whether the justiciability requirements have been met—and that a court lacks jurisdiction to give advisory opinions. Plan Helena, ¶ 11. Based on these principles, we observed that once BCBS determined not to go through with the lease and was dismissed from the case, the dispute over the interpretation of the Airport Authorities Act became moot and the district court no longer had a justiciable case or controversy before it. The district court was required, therefore, to dismiss the action at that point. Plan Helena, ¶ 12. The fact that the remaining parties in the suit desired a ruling on the merits could not
¶34 Critical to the present case is the fact that Armitage has never been charged with a violation of the Missoula ordinances for her refusal to provide a breath test upon Officer Mattix‘s initial request. This case, therefore, does not present a direct challenge to the ordinances, for Armitage has not been prosecuted under them.
¶35 Armitage apparently sought to challenge the ordinances collaterally, under the theory that the threat of being prosecuted for violating the ordinances coerced her into providing a breath sample later at the police station. This theory is questionable in light of our decision in Nichols v. Department of Justice, 2011 MT 33, 359 Mont. 251, 248 P.3d 813, where we indicated that advising a person of the consequences of refusing to provide a breath sample does not amount to an unconstitutional threat: “Nichols also could not have suffered a [search or seizure] due to the ‘threat’ of driver‘s license suspension. Nichоls has not explained how the officer‘s explanation of the rights and consequences of her choices constituted either a ‘threat’ or an unconstitutional search or seizure.” Nichols, ¶ 16.
¶36 But even assuming, for the sake of discussion, that a “threat” theory is a plausible basis for reaching the validity of the ordinances, this theory cannot apply here because the District Court specifically determined that Armitage‘s consent was given freely, and Armitage has not pointed to any evidence refuting that determination. Following its review of the Municipal Court record, the District Court stated as follows:
The evidence that was presented on the issue favors the City. The Defendant did not testify to present any evidence that she was “intimidated or acted against her will” when consenting to the Intoxilyzer at the Detention Center. . . . It is true that she refused an earlier request to take the preliminary breath test, but there is nothing in evidence to suggest duress or intimidation was at play when she reversed her decision and submitted to testing at the Detention Center. What the DVD shows is a chatty and overtly friendly exchange between Mattix and the Defendant at the Detention Center. There is absolutely nothing in the DVD to suggest that the Defendant was in any way intimidated or unwilling whеn she consented to take the Intoxilyzer, and in fact, the DVD portrays exactly the opposite.
¶37 Again, Armitage has pointed to no evidence refuting this determination by the District Court. While she makes conclusory assertions in her briefs on appeal that she was intimidated, such
¶38 Accordingly, “[a]ny analysis of the underlying substantive issues in this case would be merely advisory because we cannot grant [Armitage] the relief [she] sought originally“—i.e., suppression of all evidence obtained as a result of the investigative stop. Houden v. Todd, 2014 MT 113, ¶ 27, 375 Mont. 1, 324 P.3d 1157. Whether this Court upholds the Missoula ordinances or strikes them down, such holding is entirely academic. Armitage is not entitled to any relief for the simple fact that she has suffered no injury as a result of the ordinances’ application. She was not charged with an offense under the ordinances, nor was she coerced or intimidated by the ordinances into giving her consent to the breath test at the police station.
¶39 For these reasons, we have no justiciable basis for considering the validity of the Missoula ordinances. Although the parties may desire to hear our views on the subject, “it is well established that a party cannot waive or confer jurisdiction by consent.” Big Spring v. Conway, 2011 MT 109, ¶ 23, 360 Mont. 370, 255 P.3d 121; accord Plan Helena, ¶¶ 13-14. Our decision with regard to the ordinances is purely advisory, and I disagree with the Court‘s decision to reach the merits.
¶40 Since the Court has nonetheless chosen to address the validity of the ordinances, I feel constrained to express my disagreement with the Court‘s analysis. In my view, the Court disregards the clear statutory language of
¶41
“does not leave the local unit free from state control; it does, however, change the basic assumption concerning the power of local government. At present [i.e., in 1972], th[e] assumption is that local government lacks power unless it has been specifically
granted. Under the shared powers concept, the assumption is that local government possesses the power, unless it has been specifically denied.”
Am. Cancer Soc‘y v. State, 2004 MT 376, ¶ 9, 325 Mont. 70, 103 P.3d 1085 (quoting Montana Constitutional Convention, Comments on Local Government Committee Proposal, Feb. 19, 1972, p. 797) (emphases in the original Committee Comments).
¶42 Although we have stated that all prohibitions must be express, D & F Sanitation Serv. v. City of Billings, 219 Mont. 437, 445, 713 P.2d 977, 982 (1986), the limitations on self-government authority extend beyond the express prohibitions contained in
(1) A local government with self-government powers is prohibited the exercise of any power in a manner inconsistent with state law or administrative regulation in any area affirmatively subjected by law to state regulation or control.
(2) The exercise of a power is inconsistent with state law or regulation if it establishes standards or requirements which are lower or less stringent than those imposed by state law or regulation.
(3) An area is affirmatively subjected to state control if a state agency or officer is directed to establish administrative rules governing the matter or if enforcement of standards or requirements established by statute is vested in a state officer or agency.
Further, and more specific to the instant proceedings,
The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any ordinance, rule, or regulation in conflict with the
provisions of this chapter unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this chapter.
¶43 Within this framework, therefore, the Court must examine Missoula‘s ordinances in relation to applicable provisions of law. It is not enough merely to look for an express prohibition and, upоn finding none, conclude that the ordinances are a valid exercise of the City‘s authority. To be valid, the ordinances may not be inconsistent with Montana‘s Constitution, the United States Constitution, or the laws of either jurisdiction.
¶44 Montana law permits law enforcement to administer two separate breath tests during a criminal DUI investigation.
¶45
¶47 This Court has consistently recognized the statutorily created right of a person to refuse a test. In State v. Turbiville, 2003 MT 340, 318 Mont. 451, 81 P.3d 475, we explained that “the option to refuse a breath or blood test is not a matter of due process, but a matter of grace bestowed by the Legislature.” Turbiville, ¶ 16 (discussing
¶48 The above-referenced statutes are consistent with fundamental principles underlying the
¶49 Accordingly, the statutory right to refuse a test is not only embedded in Montana‘s implied consent laws and warrant requirement, but is also consistent with fundamental principles underlying the
¶50 Nevertheless, because Armitage failed to present any credible evidence that she was coerced into providing a breath sample by the threat of prosecution under the ordinances, I agree with the denial of her motion to suppress. I therefore specially concur.
JUSTICE SHEA joins the Special Concurrence of JUSTICE McKINNON.