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The City of Missoula v. Robertson3/2/2000
mit to a breathalyzer. Identical to the testimony in Hulse, Officer Heinle testified he smelled alcohol on Robertson's breath, Robertson's speech was slurred, and he displayed an obvious lack of balance after getting out of his vehicle.
Section 46-20-701(1), MCA, provides that " cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial." We agree with City that Robertson has failed to show that he was prejudiced by the introduction of this evidence. We therefore conclude that, in light of the overwhelming evidence offered by the State, the introduction into evidence of the HGN test was harmless error.
Issue 5.
Does § 61-8-404(2), MCA, in determining that proof of a person's refusal to take a sobriety test is "admissible in any criminal action or proceeding," violate the separation of powers doctrine of the U.S. and Montana constitutions?
Robertson claims that the Legislature, by enacting § 61-8-404(2), MCA, unconstitutionally infringes upon the function of Montana courts in making judicial determinations regarding the admissibility of evidence. In other words, the Legislature, by enacting § 61-8-404(2), MCA, has mandated that a person's refusal to submit to a blood or breath test while under arrest must be admitted into evidence. This, Robertson claims, usurps the sole, exclusive power of the courts to rule on the admissibility of evidence, and impermissibly violates the separation of powers doctrine of the U.S. and Montana constitutions.
Consequently, Robertson contends that the statute improperly "shifts the burden of proof to the defendant to establish that the refusal was not a reflection of guilt," which directly conflicts with § 46-16-204, MCA. Under § 46-16-204, MCA, a "defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, the defendant must be found not guilty."
Robertson's contentions fail on several grounds.
Pursuant to Article III, Section 1, the Montana Constitution provides for a "separation of powers" doctrine which is similarly expressed by Articles I through III, of the U.S. Constitution:
The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
Ultimately, under Rule 104, M.R.Evid., "the admissibility of evidence shall be determined by the court." See also In re Marriage of Njos (1995), 270 Mont. 54, 61, 889 P.2d 1192, 1196 (stating that determination of the admissibility of evidence is within the discretion of the trial court; the court is not guided by fixed rules, but must consider the nature of the evidence and the circumstances of a particular case). This rule unconstitutionally conflicts, Robertson contends, with § 61-8-404(2), MCA, which provides:
If the person under arrest refused to submit to one or more tests as provided in this section, proof of refusal is admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of alcohol and drugs (emphasis added).
It is well-settled law in Montana that the Legislature has the
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