The City of Missoula v. Robertson3/2/2000
tation of cumulative evidence.
As for his claim of improper burden shifting, Robertson contends that it is City's burden to establish with foundational evidence that his refusal to submit to a breathalyzer demonstrated a "consciousness of guilt," rather than his to prove that it did not. Therefore, Robertson contends that § 61-8-404(2), MCA, allows City to argue that an inference of a "consciousness of guilt" can be drawn from the evidence of his refusal, which in turn relieves City to some extent of its burden to prove the offense of DUI "beyond a reasonable doubt" as required by § 46-16-204, MCA.
Again, Robertson relies on Long. The Washington statute in question in Long, which is virtually identical to Montana's, was similarly challenged on the ground that any inference or speculation of guilt could not be drawn from the evidence of refusal. The Washington State legislature had, in fact, excised language from the statute that had expressly prohibited "speculation as to the reason for the refusal." Long, 778 P.2d at 1029. Without such restrictive language, the Washington court concluded that " he legislative determination that refusal evidence is relevant and fully admissible to infer guilt or innocence thus now seems clear." Long, 778 P.2d at 1030.
While that may be the Washington Court's interpretation of its statute, we are not compelled to interpret Montana's statute in the same fashion. Like Washington's statute, the Montana statute Robertson challenges, § 61-8-404(2), MCA, does not expressly provide, or in any manner address, whether an inference of guilt may be drawn from the evidence of a person's refusal to submit to a blood or breath test. Certainly, if it were our Legislature's intention that there be such an inference, appropriate language to that effect could have been included in the statute. For example, § 61-8-401(4)(c), MCA, expressly provides that "it may be inferred that the person was under the influence of alcohol" based on the evidence that the person's blood alcohol concentration was 0.10 or more. To the contrary, however, § 61-8-404(2), MCA, merely provides that "proof of refusal is admissible . . . ."
As Robertson contends, however, an inference of guilt from the "proof of refusal" might be injected into the trial via the arguments of counsel (or, presumably, also via testimony or jury instructions). Nevertheless, if an inference of "consciousness of guilt" from the "proof of refusal" is injected into the trial in this manner, it cannot be said that it is because the Legislature adopted § 61-8-404(2), MCA. To the contrary, it is because the attorneys, the witnesses, or the trial court raised the inference to the jury. The accused's remedy under such circumstances is to object to the inference being argued, raised, or instructed upon and to allow the trial court the opportunity to rule, one way or the other, on the claim of error thus presented.
Therefore, returning to Robertson's separation of power argument, we hold that Montana's Legislature, in enacting § 61-8-404(2), MCA, did not unconstitutionally exercise power held exclusively by Montana courts in making judicial determinations regarding the admissibility of evidence.
Accordingly, this case is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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