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State v. Carter11/25/1997
d on appeal. In this case, because Appellant failed in this regard, he cannot establish any error. State v. Fina (1995), 273 Mont. 171, 181, 902 P.2d 30, 38. We conclude that the District Court did not err in admitting into evidence Appellant's blood test results.
Issue 6
Did the District Court improperly forfeit Appellant's vehicle?
Appellant argues that in both 95-203 and 96-090, the District Court improperly forfeited his vehicle. With respect to 96-090, the State contends that forfeiture is a non-issue because the District Court did not apply the forfeiture provisions in that case. The State cites the judgment of 96-090, wherein the District Court stated:
Under the facts of this case, in the interest of justice, the provisions of section 61-8-714(3)(b)(i) MCA, shall not apply and the vehicle driven by the Defendant shall not be subject to forfeiture. . . .
The State is correct. Given the District's Court's judgment, we determine that Appellant's claimed error, as it pertains to 96-090, did not occur.
With respect to 95-203, Appellant contends that the District Court erred when it forfeited Appellant's vehicle before his third DUI conviction became final. Section 61-8-714(3)(b)(i), MCA (1993), provides:
On the third or subsequent conviction, the court, in addition to any other penalty imposed by law, shall order the motor vehicle owned and operated by the person at the time of the offense to be seized and subjected to the [forfeiture] procedure provided under 61-8-421.
Appellant argues that although the DUI which is the subject of 95-203 is his third, no forfeiture can take place until the conviction becomes final, that is, until this Court affirms the conviction on appeal. Appellant seeks to have the forfeiture set aside pending appeal.
The State responds that while the court ordered Appellant's vehicle to be forfeited, no actual forfeiture has taken place because the petition for forfeiture was stayed pending appeal. The State points to the District Court's order of April 19, 1995, wherein the court: (1) found Appellant in contempt for violating its previous directive not to transfer or encumber the title to his car; (2) ordered Appellant to secure return of title to the car and deposit it with the clerk of court; and (3) stayed the State's Petition for Forfeiture pending final resolution of the appeal by this Court. The State argues that the District Court's order was proper in order to prevent Appellant from eluding the forfeiture penalty by transferring his car before the final determination of his guilt or innocence.
As the parties have raised no factual dispute, the standard of review is whether the district court correctly interpreted the law. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540.
The authority relied upon in ordering Appellant to secure return of title to the car and deposit it with the clerk of court pending a final resolution of the case is § 61-8-422, MCA. That statute provides:
(1) It is unlawful for the owner of a vehicle subject to actions under . . . 61-8-714 . . . to transfer, sell, or encumber the owner's interest in that vehicle from the time of the owner's arrest or the filing of the underlying charge until the time that the underlying charge is dismissed, the owner is acquitted of the underlying charge, the issue of seizure or forfeiture is resolved by the sentencing court, or the underlying charge is otherwise terminated.
(2) The prohibition against transfer of title may not be stayed pending the determination of an appeal from the conviction on the underlying charge.
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