State v. Hislop, 2016 MT 130 (May 31, 2016) (Rice, J.) (5-0, aff’d)
Issue: Whether Hislop’s aggravated DUI conviction violates the prohibition on ex post facto laws.
Short Answer: No.
Facts: Hislop’s driver’s license was suspended in 2007 because she declined to submit to preliminary alcohol screening after being arrested for DUI. She was ultimately acquitted at trial.
In 2011, the Montana legislature enacted § 61-8-465, MCA, the aggravated DUI statute providing that a person commits the offense if she operates a vehicle under the influence of alcohol and refuses a breath or blood sample, and has had her license suspended within the previous 10 years for refusal to submit a breath or blood sample.
In 2013, Hislop was arrested for DUI and refused to provide a breath or blood sample. She was charged with aggravated DUI. She moved to dismiss the charge on the ground it violated ex post facto laws. The justice court denied the motion, reasoning that if Hislop were convicted she would be punished for her 2013 conduct – committing DUI, and refusing a breath or blood test after having similarly refused in the last 10 years – rather than her 2007 conduct. The jury convicted Hislop of aggravated DUI,
Procedural Posture & Holding: Hislop appealed the denial of her motion to dismiss to the district court, which affirmed. Hislop appeals, and the Supreme Court affirms.
Reasoning: A criminal law is ex post facto if it (1) punishes as a crime an act that was not unlawful when committed; (2) makes punishment for a crime more burdensome; or (3) deprives a person charged with a crime of any defense available under the law at the time the act was committed. Hislop argues that § 61-8-465(1)(d), MCA, punishes her criminally for an act that was previously punished civilly. However, license revocation due to refusal to submit to a breath or blood test remains a civil sanction, not a crime. Hislop is not being punished for her conduct in 2007. The legislature gave Hislop fair warning that this conduct was punishable two years prior to her actions. Her act was unlawful when it was committed in 2013.