ROSEBUD COUNTY ATTORNEY

P.O. Box 69

FORSYTH, MT 59327

(406) 356-2236

Fax (406) 356-2238

www.mcn.net/~rosebud

e-mail-rosebud @ mcn.net

Lee R. Kerr Esq. ATTORNEY for

CITY OF FORSYTH

COUNTY ATTORNEY OFFICIAL OPINION #97-06

DATED: July 8, 1997

DUI

TIME FRAME

10/1/81 10/1/89

PAST After 5 years, record expunged Remains CCJI FUTURE Pre-1981 Penalty 61-8-714 Penalty 61-8-714(5)

No expungement If 5 yrs. Pass without new convict. Counts in lifetime Counts in lifetime Drops off record-not count in life count

count time count. If 2nd conviction

within 5 yrs., It counts.

DUI PER SE

TIME FRAME

10/1/83 61-8-406 Per Se Enacted 10/1/95

PAST After 5 years, record expunged Remains CCJI FUTURE Pre-1983 Penalty 61-8-722 Penalty 61-8-722

No Per Se If 5 yrs. Pass without new convict. Counts in lifetime Offense Drops off record-not count in life count

DUI Only time count. If 2nd conviction Changed “enpunged” to

within 5 yrs., It counts. “Criminal Justice Information”

SEE: 42 AG OP 1988

St. v. Brander, Dec 12, 1996 (MT)

61-8-401, 406, 714, 722, (81-95)

SEE ALSO: Beckman, DC 96-13,

Mills, DC 95-78

ISSUES PRESENTED:

How the expungement statutes for DUI and DUI Per Se apply in the determination of life time conviction counts for the felony DUI.

BRIEF ANSWER:

Based on numerous inquiries from law enforcement, there appears to be substantial justified confusion regarding the interpretation of the expungement language in both DUI and DUI Per Se, as it applies to counting life time convictions for a determination whether to arrest and charge for felony DUI. The above-time lines and table for DUI and DUI Per Se, which contrast the two statutes and their penalty provisions, is an attempt to hopefully clarify the issue for law enforcement. For DUI, a violation of 46-8-401, the penalty provision is under 61-8-714 MCA. Effective from October 1, 1981 through October 1, 1989, any conviction during that time period, that has not had a subsequent conviction within five (5) years of that date, is expunged or removed from the defendant’s record, and thus does not count in the life time count. The relevant date is the date on which the conviction was obtained and if it is between the dates of October 1, 1981 to October 1, 1989, and five (5) years have gone by without another conviction, then that conviction cannot be used in the life time count in the determination of a felony. However, if a second conviction occurs before the five (5) years past, it does count in the life time count. Any conviction for DUI that occurred before 1981, October 1, does not have expungement language in the statute, and counts in the life time count. Further, convictions after October 1, 1989, instead of being expunged, is treated as confidential criminal justice information, which can and should be used in the lifetime count.

To help further confuse the issue, the time line for DUI Per Se is different than for DUI. DUI Per Se did not exist as a crime before October 1, 1983. Then 61-8-406 was enacted, providing for DUI Per Se. At the same time that it was enacted, the five (5) year expungement language was also placed in the statute. Thus from the statutes beginning of October 1, 1983 through October 1, 1995, any conviction during that period, and goes five (5) years without a subsequent conviction, will be expunged, cease to exist, and will not apply in the life time count. DUI Per Se convictions after October 1, 1985 become criminal justice information and do count in the life time count. Convictions that occurred before October 1, 1983 can only be DUI convictions, as DUI Per Se convictions did not exist before October 1, 1983. Law Enforcement should complete a driving record check on a DUI arrest to confirm the number of prior convictions, and apply it to the two time above times lines, to find the numerical count for prior DUI convictions. This is necessary since a defendant should not be held on a felony count, under felony bound, unless in fact the unexpunged prior DUI or DUI Per Se convictions are substantiated by a record check. Further, if a defendant is arrested on a misdemeanor charge of DUI, and appears before the Justice Court and enters a plea of guilty before the record check is completed, and further investigation establishes that a felony offense was chargeable, the felony prosecution would be barred by double jeopardy. Hopefully, this provides some guidance to law enforcement in interpreting these cumbersome statutes and court decisions.

DATED this day of July, 1997.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY