DUI Laws - Montana Jury Selection Comments by Prosecutor OK

In City of Billings v. Staebler, --- P.3d ----, 2011 WL 4828842 (Mont.), 2011 MT 254 the defendant appealed her conviction on the ground including that the prosecution voir dire of the jurors was improper. On appeal, the defense brief complained of the following items as ineffective assistance at trial:

"Counsel also argued that Staebler's trial counsel's failure to object in three instances amounted to prejudicial ineffective assistance of counsel. Specifically, the attorney was ineffective when: (1) he did not object to the prosecutor's statement that someone is always being struck and killed by drunk drivers; (2) he failed to request private questioning of a prospective juror who had familiarity with a person being killed by a drunk driver; and (3) he failed to object to the hypothetical inference that a child may be killed due to Staebler's driving."

"Before the district court, Staebler appeared with privately retained counsel who challenged Staebler's conviction in a written brief. Counsel alleged that Staebler was not afforded a fair trial, where, during voir dire, the prosecutor referenced a Billings Gazette newspaper series on driving under the influence of alcohol. The prosecutor quoted material from this series, noting that for drinking *2 and driving offenses, “there is always somebody being struck or killed.”

The appeals court wrote:

"The City attorney referenced DUI newspaper stories that frequently and dramatically report deaths that are occasioned by drunk drivers. She also addressed the less extreme cases involving drivers who had a few drinks and were stopped by an experienced officer upon witnessing slightly impaired driving. We find nothing in her comments that served to unfairly imply either that Staebler's conduct was any worse than it actually was or that it involved death or serious injury. When explaining the gradations, or levels, of intoxication, the City attorney merely discussed both extremes. The appellate court held that this was not error.

"Staebler's second claim of error pertained to a discussion between the City attorney and a prospective juror regarding the prospective juror's friend whose daughter had been killed in a DUI accident. This discussion was not lengthy and it allowed the City to determine that the prospective juror should be removed for cause. Apparently the juror made several unusual comments. We see nothing in the record indicating that other members of the jury were inflamed or prejudiced against Staebler by the completely unpredictable comments of this juror."

 In conclusion, the trial court found no error and affirmed.
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New Montana DUI Bill Requires Breath Tests Twice Daily

A bill that requires repeat DUI offenders to submit to breath tests while awaiting sentencing for a DUI arrest was signed into law by Gov. Brian Schweitzer on May 6.

The 24/7 Sobriety Bill was promoted heavily by Montana Attorney General Steve Bullock and sponsored by Rep. Steve Lavin, R-Kalispell.

“As a Highway Patrol Trooper, Rep. Steve Lavin and law enforcement across our state see the carnage that repeat drunk drivers cause on our highways,” Bullock said following the bill’s passage in the legislature.

House Bill 106, the freshman legislator’s first bill, was approved by wide margins — 97-2 in the House and 41-8 in the Senate. Republican Reps. Jerry O’Neil, Keith Regier and Derek Skees and Republican Sen. Bruce Tutvedt voted in favor of HB 106, while Republican Sen. Ryan Zinke voted against the measure.

Under the bill, offenders arrested for a second or subsequent DUI are required to submit to a breath test twice a day, seven days per week, to show they’re sober from the time of their arrest to the completion of their sentence.

Bullock tested the 24/7 concept in a pilot program in Lewis and Clark County, but a similar program had already been in effect in Whitefish for about a year for people on bail awaiting sentencing . From May 2010 to April 2011, Lewis and Clark County officials administered more than 11,400 breath tests, and 99 percent of them came in at 0.0 percent.

The governor also signed Senate Bill 42, which makes it easier for law enforcement to get a warrant for blood tests on repeat offenders who refuse to submit to a breath test. Regier, Zinke and Tutvedt voted in favor of SB 42, while O’Neil and Skees were opposed.

Several bills failed in the legislature, including a measure that would extend the time frame in which prior DUI convictions could count in court. Under the current law, courts can only use DUI convictions within the past five years when determining charges and sentencing.

Montana has long been known as a binge-drinking state, and its highways are among the most dangerous in the nation. But several setbacks affected efforts to strengthen Montana’s DUI laws this legislative session.

In mid-January, Sen. Jim Shockley, R-Victor, was cited for an open-container violation after he was caught drinking a beer while driving through Missoula. Shockley, who was ready to present his DUI bill in Helena, was forced to resign his chairmanship of the Senate Judiciary Committee.

Then in early April, Republican Rep. Alan Hale, who owns a bar in Basin, surprised many with a speech that criticized DUI reform as bad for business. The DUI bills “are destroying a way of life that has been in Montana for years and years,” he said.

Supporters of tougher DUI bills included Rebecca Sturdevant, of Kalispell, representing Mothers Against Drunk Driving. Her son, Montana Highway Patrol trooper Evan Schneider, was killed Aug. 26, 2008, in a head-on collision on U.S. 2 near the House of Mystery. He was in pursuit of a small car that was driving erratically but was never found. The driver of the pickup truck that hit his patrol car during the pursuit had been drinking. Schneider and two people in the truck died in the crash.

“I think it’s a very, very important step forward in dealing with repeat offenders,” Sturdevant said about HB 106. “One of the key things with repeat offenders is they are driving drunk many times before they are arrested. This will make a huge difference in earlier intervention for these people.”


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