State v. Favel, 2015 MT 336 (Dec. 2, 2015) (McKinnon, J.; McKinnon, J., specially concurring) (5-0, aff’d)
Issue: Whether the prosecution improperly commented on the statutory inference of intoxication under § 61-8-404(2) and asserted that Favel was responsible for establishing her innocence, thereby denying Favel her right to a fair and impartial trial.
Short Answer: No.
Facts: Havre police officer Sgt. Poulos stopped a car and identified Favel as the driver. Favel’s eyes were red and glassy, she was slurring her speech, and the officer smelled alcohol on her breath. Favel failed standard field sobriety tests, and refused a breath test. Eventually Poulos obtained a search warrant for Favel’s blood, which revealed a BAC of .13 percent.
The state charged Favel with felony DUI, fourth or subsequent offense.
Favel moved in limine to exclude evidence of preliminary breath tests (which she never took) and to prohibit the state from arguing that Favel could have proved her innocence had she submitted to a breath test. The state argued that under § 61-8-404(2), refusing to submit to a breath or blood test creates a rebuttable inference that the defendant was under the influence. The court did not rule on the burden-shifting part of Favel’s motion, and Favel did not bring the argument back to the court’s attention or seek a ruling from the court.
At trial when the state asked Poulos whether he gave Favel an opportunity to provide a breath sample “to clear her of driving under the influence,” Favel did not object. In closing argument, the prosecutor described Favel’s refusals of breath and blood tests as her refusing to “prove her innocence.”
Procedural Posture & Holding: The jury found Favel guilty of felony DUI, and the district court sentenced her to the DOC for 13 months, followed by a suspended term of three years. Favel appeals, and the Supreme Court affirms.
Reasoning: The Court will generally not address issues raised for the first time on appeal. However, when a defendant’s fundamental rights are invoked, the Court may decide to apply plain error review. Here, Favel did not preserve the issue of prosecutorial misconduct, as she did not object at trial to the prosecutor’s comments.
The Court agrees that the prosecutor’s comments were improper. The prosecution may rely on the defendant’s refusal to take a breath test to argue consciousness of guilt, but cannot say that she could have “proven her innocence.” Nonetheless, the prosecutor’s comments here do not rise to a level sufficient to find plain error.
Justice McKinnon’s Special Concurrence: Justice McKinnon writes to address inconsistencies in the Court’s plain error jurisprudence, and offer her analysis for future application of this doctrine.