CHECKOUT SCAM: Sufficient evidence to convict of 3 misdemeanor unlawful use of store computer by accountability, but refusal to allow Defendant to testify via video from Michigan after agreeing that he could “appear by video” requires new trial… Wald reversed. [Read more…]
DUI, speed stop expanded into DUI investigation
DUI: Sufficient particularized suspicion to expand speed stop into DUI investigation, motion to suppress properly denied… McElyea affirmed (memorandum). [Read more…]
Rape/incest, time served in 3 counties
RAPE/INCEST: Time served in 3 counties improperly calculated… fines, surcharges, IT fees improperly imposed without evaluating ability to pay and merely because the length of Defendant’s sentence would give him time to pay… Gilbert affirmed (memorandum). [Read more…]
Drugs, odd driving stop of suspected traffickers
DRUGS: Odd driving provided particularized suspicion for Terry stop of suspected drug traffickers and users which led to discovery of drugs… Swandal affirmed. [Read more…]
DUI, California statute sufficiently similar to Montana’s
DUI: California statute which does not specify where the offense occurs is sufficiently similar to Montana’s statute which specifies “upon the ways of this state open to the public” to support felony enhancement… McElyea affirmed. [Read more…]
Sexual assault, wrong definition of “consent”
SEXUAL ASSAULT: 2017 definition of “consent” for both sexual assault and SIWC improperly given in instruction for incident involving accuser with physical disabilities in which pre-amendment “consent” had “ordinary meaning”… conviction reversed, remanded for new trial… Beal/Townsend reversed. [Read more…]
Work comp, psychiatric IME, anxiety/insomnia
WORK COMP: §605 psychiatric exam properly denied because nothing suggests that anxiety/insomnia complaints are causally related to accepted leg claim (although Rule 35 “good cause” incorrectly imputed to §605 “relevant”/”appropriate”)… insurer not obligated to pay for exam/treatment of anxiety/insomnia before obtaining a §605 exam… Sandler affirmed (other grounds), reversed. [Read more…]
DUI, extension of “welfare check” to DUI investigation
DUI: “Welfare check” on driver reported in 911 call as not moving with engine running in legally parked car terminated when driver was found moving and engine not running and assured that he was not in need of assistance, no particularized suspicion to extend stop to DUI investigation… officer’s testimony and lower Courts’ and Dissent’s findings contradicted by body cam video which Supreme Court is not required to disregard… misdemeanor DUI conviction reversed… Warren/Deschamps reversed. [Read more…]
Marijuana paraphernalia, MMA exception
MARIJUANA PARAPHERNALIA: Defendant had burden of proving that she fit under exception of MMA by having registry card and being in compliance with MMA… she failed to do so, and Judges properly found that pipes in purse contained marijuana residue… convictions affirmed… Jenks/Larson affirmed. [Read more…]
Order of protection, “choice of 2 evils”
ORDER OF PROTECTION: Counsel not ineffective for failing to move to dismiss charge as unconstitutional because he had a right to access his attorneys and the courts or for failing to preserve his “lesser of 2 evils” defense or instruction… conviction affirmed… Jenks/ Deschamps affirmed (IOR I-3(c)). [Read more…]