State v. SpadyState v. Spady
For
For Appellee: Wade Zolynski, Chief Appellate Defender, Koan Mercer (argued), Assistant Appellate Defender, Helena.
For Amicus Curiae: David M. McLean, Mark R. Taylor, Jessie L. Luther, Browning, Kaleczyc, Berry & Hoven, P.C., Helena.
CHIEF JUSTICE MCGRATH delivered the Opinion of the Court.
¶1 The State of Montana appeals from the order of the Nineteenth Judicial District, Lincoln County, remanding the case to Justice Court with instructions to allow Robert Spady to withdraw his plea and grant his motion to dismiss the contempt charges. On February 19, 2015, we issued an order assuming supervisory control over this proceeding. We affirm in part, reverse in part, and address the following issue:
¶2 Whether the District Court erred when it granted Spady‘s motion to dismiss and concluded that the 24/7 Sobriety Program is unconstitutional.
BACKGROUND
¶3 Responding to the alarming levels of drunk driving in Montana, the 2011 Legislature enacted the Montana 24/7 Sobriety Program Act,
¶4 To this end,
¶5 Lincoln County officers arrested Robert Spady on April 20, 2013, and charged him with Driving Under the Influence and Careless Driving. Two days later, he appeared in Lincoln County Justice Court for his Initial Appearance and entered a plea of not guilty. Justice of the Peace Sheffield ordered Spady to participate in the 24/7 Sobriety Program as one of eight conditions of his release on bond. Spady had a prior DUI conviction in November 2006.
¶6 Spady missed three tests while enrolled in the 24/7 Sobriety Program. On August 7, 2013, after 113 days of participation, he filed a motion to lift the testing requirement. The Justice Court granted the motion. The Lincoln County Attorney‘s Office charged Spady with three counts of criminal contempt under
¶7 The Justice Court denied Spady‘s motion to dismiss. The court concluded that the condition imposing the 24/7 Sobriety Program was appropriate due to Spady‘s diminished privacy expectation and analogized the fees to other fees historically borne by pretrial defendants. The court noted that Spady presented no evidence of his inability to pay the fees, could have moved to amend the imposed conditions at any time under
¶8 On September 23, 2013, Spady entered into a plea agreement with Lincoln County prosecutors. Pursuant to the agreement, Spady agreed to plead nolo contendere to the contempt charges in exchange for the State‘s agreement to dismiss the DUI and Careless Driving charges. Spady asked the court to apply the amount he paid in 24/7 Program fees to his fines on the contempt charges, although there is no indication this actually occurred. Additionally, he expressly reserved his right to appeal the Justice Court‘s order denying his Motion to Dismiss “based on constitutional challenges to
¶9 In October 2013, Spady appealed to the District Court and filed a motion to dismiss the contempt charges. After a hearing, the District Court granted the motion to dismiss. The District Court concluded that
¶10 Although Spady asked the District Court to remand with instructions to dismiss, the court found that such relief was not within the scope of
¶11 The State appealed the District Court‘s order to this Court. Although this case was initially filed as a direct appeal, this Court has decided to exercise its power of supervisory control because of the unique procedural obstacles presented in this case. The Court determined supervisory control was necessary to review two questions: (1) the constitutional issues upon which the District Court relied in its order declaring the 24/7 Sobriety Program unconstitutional, and (2) the Fourth Amendment search and seizure implications of the pre-trial 24/7 Sobriety Program.
STANDARD OF REVIEW
¶12 Statutes are presumed to be constitutional. A party challenging a statute‘s constitutionality must establish, “beyond a reasonable doubt, that the statute is unconstitutional, and any doubt must be resolved in favor of the statute.” State v. Michaud, 2008 MT 88, ¶ 15, 342 Mont. 244, 180 P.3d 636. The constitutionality of a statute is a question of law, which we review for correctness. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174 P.3d 469. When reviewing a question of constitutional law, including the issue of whether a defendant‘s due process rights were violated, this Court reviews the district court‘s conclusion to determine whether its interpretation of the law was correct. Michaud, ¶ 15.
DISCUSSION
¶13 Issue: Whether the District Court erred when it granted Spady‘s motion to dismiss and concluded that the 24/7 Sobriety Program is unconstitutional.
¶14 At the outset, it is important to clarify which version of the statute is applicable. Spady was arrested on April 20, 2013. The Montana Legislature amended many provisions of the 24/7 Sobriety Program in 2013, including the statutes at issue in the District Court opinion. The amendments became effective on April 26, 2013. In multiple places, the District Court and the parties cite to the 2013 version of the statute, rather than the 2011 statute. We note that the 2011 version of the 24/7 Sobriety Program applies to this case. State v. McKenzie, 177 Mont. 280, 318, 581 P.2d 1205, 1227 (1978) overruled in part on other grounds by State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735.
¶15 The State presents four grounds for reversing the District Court and affirming the Justice Court. First, the State urges this Court to determine that the challenge is collaterally barred by operation of law and affirm the Justice Court‘s decision without reaching the merits of Spady‘s claims. Second, the State argues that the District Court lacked jurisdiction over issues including whether the statute authorizes unconstitutional searches and improper delegation, and argues that this Court should reverse the District Court on the constitutional claims. Third, the State maintains we should affirm the Justice Court‘s conclusion that Spady failed to show that the testing condition violated his constitutional right to substantive due process, equal protection of the law, or the excessive bail clause. Finally, the State maintains that
¶16 The State argues that Spady should not be permitted to collaterally attack the validity of the underlying court order in his DUI and careless driving case. Under the collateral bar rule, “a judicial order ... [may] be enforced through criminal contempt even though the underlying decision may be incorrect and even unconstitutional.” In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 725 (9th Cir. 1989). Federal courts have recognized the collateral bar rule (see Walker v. Birmingham, 388 U.S. 307, 320, 87 S. Ct. 1824, 1832 (1967)); however, the rule is not mandatory as to the States. Zal v. Steppe, 968 F.2d 924, 927 (9th Cir. 1992); see also State ex rel. Superior Court v. Sperry, 79 Wn.2d 69, 74, 483 P.2d 608, 611 (1971); In re Berry, 68 Cal. 2d 137, 149, 65 Cal. Rptr. 273, 281, 436 P.2d 273, 281 (1968).
¶17 We decline to apply the collateral bar rule at this time. The State did not raise this argument in the District Court and we exercised supervisory control over this case to specifically address the constitutional issues arising out of the 24/7 Sobriety Program.
A. Delegation
¶18 The District Court concluded that
¶19 Additionally, the District Court held that
¶20
B. Search
¶21 Spady argues that the breath tests constitute an unreasonable search and violate a defendant‘s right to privacy. The State advances three alternative responses: (1) the search issue is not properly preserved for appeal; (2) the testing is constitutional due to Spady‘s diminished expectations of privacy and the reasonableness of the condition; and (3) the special needs doctrine supports the constitutionality of the condition.
¶22 Spady properly preserved the issue of privacy below. In his brief to the Justice Court supporting his motion to dismiss, Spady argued that
¶23 The
¶24 The initial question here is whether the breath test constitutes a search. A search occurs when an individual‘s reasonable expectation of privacy is violated by the state. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507 (1967) (Harlan, J., concurring); State v. McKeever, 2015 MT 177, ¶ 16, 379 Mont. 444, 351 P.3d 676. If society is unwilling to recognize the intrusion as a violation of an individual‘s reasonable privacy expectations, then no search has occurred and the inquiry ends. State v. Goetz, 2008 MT 296, ¶ 25, 345 Mont. 421, 191 P.3d 489.
¶25 The drawing of a breath sample is a minimally invasive procedure compared to other methods of gathering evidence. However, the United States Supreme Court has broadly defined the search framework, noting that “virtually any intrusion into the human body” is subject to the Fourth Amendment analysis. Maryland v. King, 569 U.S. 435, 133 S. Ct. 1958, 1969 (2013). Under this framework, the Supreme Court has concluded that the Fourth Amendment protections apply to blood draws effected by law enforcement, the scraping of an arrestee‘s fingernails for evidence, and DNA collected from the inside of an arrestee‘s mouth. Maryland, 569 U.S. at ___, 133 S. Ct. at 1969; see also State v. Kirkaldie, 179 Mont. 283, 288, 587 P.2d 1298, 1302 (1978) (holding that a blood alcohol test is a search). Most pertinent to this case, in Skinner v. Railway Labor Executives’ Ass‘n., the Supreme Court concluded that a breathalyzer test qualifies as a search. 489 U.S. 602, 616, 109 S. Ct. 1402, 1413 (1989). That Court drew upon the similarities between a blood test and a breath analysis, concluding that both tests involve concerns over bodily integrity and qualify as searches. Skinner, 489 U.S. at 616-17, 109 S. Ct at 1412-13. Whether the test is slight or “negligible” influences the question of the reasonableness of the search, not the question of whether the intrusion itself qualifies as a search under the Fourth Amendment. Maryland, 569 U.S. at ___, 133 S. Ct. at 1969.
¶26 If the intrusion is a search, the
¶27 The reasonableness of a search must be evaluated in the context of that person‘s expectation of privacy. Maryland, 569 U.S. at ___, 133 S. Ct. at 1978. An individual taken into police custody has a diminished expectation of privacy. State v. Demontiney, 2014 MT 66, ¶ 12, 374 Mont. 211, 324 P.3d 344. In Maryland, the United States Supreme Court upheld Maryland‘s practice of swabbing certain arrestees’ cheeks for DNA collection purposes. All arrestees charged with certain serious crimes were required to provide a buccal swab from the inside of their cheek. The Court noted that the DNA was useful in a myriad of ways including identifying the individual, assessing the detainee‘s criminal history, and predicting future dangerousness. Maryland, 569 U.S. at ___, 133 S. Ct. at 1971-73. Notably, the Court found that it was reasonable for states to use the database to assess the
¶28 While the Supreme Court and this Court have held that individualized suspicion is not always required in situations where the individual has a diminished expectation of privacy and the search is minimally intrusive, that is not to suggest that any search is constitutional because a person is in custody. Maryland, 569 U.S. at ___, 133 S. Ct. at 1979; Demontiney, ¶ 12. Some searches, such as searches of the home or highly invasive physical searches may never be reasonable without individualized suspicion. Maryland, 569 U.S. at ___, 133 S. Ct. at 1979; State v. Bassett, 1999 MT 109, ¶ 39, 294 Mont. 327, 982 P.2d 410. The Court must “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” Maryland, 569 U.S. at ___, 133 S. Ct. at 1979 (citations omitted); State v. Tackitt, 2003 MT 81, ¶ 17, 315 Mont. 59, 67 P.3d 295.
¶29 Here, the question is the reasonableness of requiring a class of arrestees to provide twice-daily breath samples as a condition of release. No one can dispute that drunk driving is a significant issue in Montana, often resulting in tragic consequences. The State has an important interest in keeping the public safe by preventing repeat DUI arrestees from driving while intoxicated. The overarching goal of the 24/7 Sobriety Program is safeguarding the public by reducing the number of intoxicated drivers in Montana.
¶30 The privacy interests implicated by the breath tests are minimal. An individual on pretrial release has a diminished expectation of privacy. The tests are delivered at a location away from the individual‘s home (where privacy interests are historically at their highest) and involve little embarrassment or discomfort. The tests do not disclose sensitive medical information, instead revealing only the level of alcohol in the individual‘s bloodstream. We cannot say that the defendant‘s participation in the twice-daily testing infringes a significant privacy interest.
¶31 We conclude that the privacy interests implicated by the breath tests are minimal and the State has an important governmental interest in preventing fatalities on its public roads. Requiring the State to point to specific facts giving rise to reasonable suspicion before testing individuals accused of repeat DUI offenses would significantly hinder the intended purpose of the program. We hold that the 24/7 Sobriety Program, as provided in
C. Due Process—Excessive Bail
¶32 The District Court concluded that the fees imposed for the 24/7 Sobriety Program were pretrial punishment in violation of a defendant‘s due process rights. The District Court specifically took issue with the nonrefundable, indeterminate nature of the fees and distinguished it from other fees traditionally borne by indigent defendants.
¶33 The
In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.
Bell, 441 U.S. at 535, 99 S. Ct. at 1872.
¶34 While the State may not subject a pretrial detainee to punishment, it may impose conditions on a pretrial detainee so long as they are part of a legitimate governmental purpose and not intended as punishment. Bell, 441 U.S. at 539, 99 S. Ct. at 1874; United States v. Salerno, 481 U.S. 739, 748, 107 S. Ct. 2095, 2102 (1987). State law allows Montana courts to impose conditions that will ensure the defendant‘s appearance at trial, but also ensure the safety of the community.
¶35 Spady asserts that the effect of the fee requirement is punitive and amounts to pretrial punishment. We conclude that the fees required under the 24/7 Sobriety Program do not have a punitive effect on pretrial criminal defendants. While the individual must pay $2 for each test, he is free from physical restraint and able to carry on his daily activities. The fee is similar to other fees imposed at the pretrial phase, whereby the defendant forfeits some money for the privilege of release. Additionally, the fee is associated entirely with the cost of the testing program, not with traditional notions of punishment such as restitution or retribution. Even with potential criminal sanctions, the fees themselves are not punitive; both this Court and the United States Supreme Court have held that a law may still be considered non-punitive even if enforced by criminal sanctions. State v. Wardell, 2005 MT 252, ¶ 47, 329 Mont. 9, 122 P.3d 443 (Leaphart, J. specially concurring); see also Smith v. Doe, 538 U.S. 84, 96, 123 S. Ct. 1140, 1149 (2003).3 Finally, the program‘s intent is clearly to protect the public from repeat drunk drivers and provide additional pretrial and posttrial prevention options to judges. Section 44-4-1202(2)(a), (b), MCA.4 The program‘s purpose is squarely within the State‘s power to protect the health and safety of its citizens. We conclude that, as written, the fees are not excessive in comparison to the statute‘s purpose and have no punitive impact on criminal defendants.
¶36 Nonetheless, state law and due process considerations require that the court conduct an individualized assessment of the appropriateness of the condition for each defendant.
¶37 Although the District Court did not rely on the Excessive Bail Clause of the
¶38 The imposition of the 24/7 Sobriety Program can be an appropriate condition of release. However, enrollment in the program is discretionary, not automatic, and a court must consider an individual‘s unique circumstances prior to imposing the testing requirement. A judge should conduct an individualized assessment to consider factors such as prior alcohol-related arrests, whether the defendant‘s history and circumstances suggest an increased risk to the community, and whether the defendant is financially able to pay the fees associated with testing. Indeed, in 2013, the Montana Legislature codified an aspect of this assessment, permitting other testing methodologies when the program presents a hardship for an individual or when a program participant requires less stringent testing requirements. 2013 Mont. Laws, ch. 309;
¶39 Here, the record does not support a conclusion that the Justice Court required the 24/7 Sobriety Program as a condition of bail for Spady after conducting an individualized assessment. Nothing in the record indicates that the Justice Court specifically considered whether twice daily testing of Spady was necessary, impractical, or financially feasible. Consequently, because Spady‘s contempt charges were based on the imposition of the 24/7 Sobriety Program without an individualized assessment, we affirm the District Court‘s decision to remand the case to the Justice Court with instructions to dismiss the contempt charges.
D. Vagueness
¶40 Spady asserts, and the District Court agreed, that the statutory phrase “charged with a second or subsequent violation of
¶41 There are two types of vagueness challenges: “(1) ‘facial,’ where the statute is so vague that it is void on its face, and (2) ‘as-applied,’ where the statute is unconstitutional as applied to the facts of a particular situation.” Knudson, ¶ 16 (citations omitted). Spady raised both facial and as-applied challenges to
¶42 In 2015, the Montana Legislature amended
CONCLUSION
¶43 We reverse the District Court in part and affirm in part. The District Court‘s order regarding the delegation of legislative authority provided by the 2013 statute is reversed as the analysis is not pertinent to this proceeding applying the 2011 version of the statute. Further, the District Court‘s order invalidating the legislative delegation of authority to the Executive Branch regarding the adoption of fees is reversed.
¶44 The breath tests required by the 24/7 Sobriety Program constitute a search. However, the search as applied in
¶45 Court-ordered enrollment in the 24/7 Sobriety Program does not, on its face, impose pretrial punishment or violate provisions against excessive bail. However, state law and due process considerations require the court to condition pretrial release on participation in the 24/7 Sobriety Program only after conducting an individualized assessment to determine if each defendant is an appropriate candidate for the program. Therefore, the District Court‘s order remanding the matter to the Justice Court is affirmed.
¶46 Finally, we decline to reach the issue of vagueness as applied to Spady.
¶47 Reversed in part, affirmed in part, and remanded for further proceedings consistent with this Opinion.
JUSTICES BAKER, SHEA, COTTER, WHEAT, MCKINNON and RICE concur.