State v. Strizich

What Happens When Montana Prosecutors Miss the Six-Month Misdemeanor Trial Deadline? State v. Strizich, 286 Mont. 1, 952 P.2d 1365 (1997)

Boland Aarab PLLP

The charge must be dismissed with prejudice. In State v. Strizich, 286 Mont. 1, 952 P.2d 1365 (1997), the Montana Supreme Court held that a Great Falls city court ruling excluding preliminary breath test results was not an order “suppressing evidence,” so the State had no right to appeal it to district court. Because that improper appeal pushed the misdemeanor DUI charge past the six-month trial deadline, the Court ordered it dismissed with prejudice.

Key Takeaways

• A misdemeanor charge must be dismissed with prejudice if the defendant, who has not postponed trial, is not tried within six months of entering a plea, unless the State shows good cause (§ 46-13-401(2), MCA; Strizich, 952 P.2d at 1367).
• Orders “suppressing evidence,” which the State may appeal, are orders excluding evidence because it was illegally obtained. They do not include pretrial rulings under the rules of evidence (952 P.2d at 1371).
• Preliminary breath test results were an “estimate” for probable cause, “not substantive evidence” of alcohol concentration (952 P.2d at 1372).
• The Court overruled State v. T.W. and State v. Yarns to the extent they conflicted (952 P.2d at 1371).

In this case sheet: At a glance · What the Court held · What changed · Statutes · When it applies · How hard · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in State v. Strizich?

William Strizich was arrested on November 4, 1995, and charged in Great Falls City Court with a first-offense DUI. He pleaded not guilty on November 6, 1995 (952 P.2d at 1365–66). The timeline that followed decided the case:

• Trial was set for February 29, 1996. The State obtained a continuance over his objection because a witness was unavailable, and trial was reset for May 2, 1996, still within six months (952 P.2d at 1366, 1372).
• On April 11, 1996, the State asked the City Court to rule in advance on whether his preliminary breath test (PBT) results were admissible. On April 23, the City Judge held they were not substantive evidence (952 P.2d at 1366).
• The next day, the State appealed to the District Court, calling the ruling an order “suppressing evidence” (952 P.2d at 1366).
• Mr. Strizich moved to dismiss under the six-month rule. The State had no good cause for the delay “other than its interest in appealing” the ruling (952 P.2d at 1366). The District Court denied the motion (952 P.2d at 1367).

The Supreme Court reversed. Under State v. Bullock, the six-month rule is satisfied only if the lower court’s jurisdiction is exhausted within six months “by some action which authorizes appeal de novo to the district court” (952 P.2d at 1368). The State may appeal an order “suppressing evidence” under § 46-20-103(2)(e), MCA. Relying on Montana’s suppression statutes and decisions from Missouri, Nevada and Texas, the Court held that “suppressing evidence” means excluding evidence “on the grounds that the evidence has been illegally obtained” (952 P.2d at 1369–71).

The City Court’s PBT ruling was not a suppression order. It was “in effect, an order determining that PBT results are not substantive evidence at all,” which the statute, its legislative history and the Department of Justice rules supported (952 P.2d at 1371–72). Because the State had no statutory basis to appeal, the six-month rule was not satisfied, and the charge “shall . . . be dismissed with prejudice” (952 P.2d at 1372).

The Court added that the defendant “is as entitled to the protection of that law as if he had no official position.” It also found that the State “made it impossible for the City Court to comply with the law which protects misdemeanor defendants from untimely trials” (952 P.2d at 1372–73). Because this issue was dispositive, the Court did not decide the State’s appeal on the exclusion of Mr. Strizich’s statements (952 P.2d at 1366).

The special concurrence. Justice Nelson wrote separately to describe the District Court’s findings. The arresting officer admitted “laying in wait” and called the stop “a big fish DUI.” He testified that Mr. Strizich made no unsafe driving maneuver over about seven blocks (952 P.2d at 1373–74). Justice Nelson described the PBT issue as “unwinnable from the start” and noted that the City later abandoned it on appeal (952 P.2d at 1374–75).

What did Strizich change in Montana law?

Strizich made two lasting changes:

1. It narrowed what the State may appeal. “Suppressing evidence” became a term of art limited to illegally obtained evidence. Ordinary evidentiary rulings on relevance, probative value or statutory inadmissibility are not appealable as suppression orders. The Court overruled T.W. and Yarns to the extent they held otherwise (952 P.2d at 1371). It warned that a broader rule would let the State “avoid justice court or city court jurisdiction altogether anytime it decides it would be tactically advantageous to do so” (952 P.2d at 1371).
2. It limited PBT evidence. Results of a preliminary breath test are an estimate for probable cause, not substantive proof of alcohol concentration (952 P.2d at 1372).

Later Montana Supreme Court decisions cite Strizich on both points, including:

• State v. Strand (1997), on the meaning of suppression;
• State v. Crawford, 2003 MT 118, which followed Strizich in holding field PBT results inadmissible at trial as evidence of blood alcohol, despite the 1997 statutory language;
• State v. Snell, 2004 MT 334, and State v. Damon, 2005 MT 218, on PBT evidence;
• State v. Willis, 2008 MT 293, which cites its standard of review.

Which Montana laws and rules apply?

• § 46-13-401, MCA: subsection (2), the six-month misdemeanor trial rule. The current text is the same as quoted in the opinion (952 P.2d at 1367).
• § 46-20-103, MCA: the orders the State may appeal, including (2)(e) “suppressing evidence.”
• § 46-17-311, MCA: appeals from justice, municipal and city courts (952 P.2d at 1366).
• § 46-13-301 and § 46-13-302, MCA: suppression of involuntary confessions and of evidence from unlawful searches, which the Court used to define “suppression” (952 P.2d at 1370–71).
• DUI statutes. The Court applied former §§ 61-8-401 and 61-8-409, MCA. Both were repealed in 2021 and replaced by a new Title 61, chapter 8, part 10. See § 61-8-1002, MCA (driving under the influence) and § 61-8-1018, MCA (admissibility of test evidence). The current § 61-8-1018(1)(b)(i) refers to a “preliminary alcohol screening test” performed by a certified person, so Strizich‘s PBT holding should be checked against the current statute before anyone relies on it.

When might Strizich apply to you?

• A misdemeanor case stalls. If you did not ask for a delay, the State must bring a misdemeanor to trial within six months of your plea or show good cause.
• The State appeals a pretrial ruling it lost. An appeal from an ordinary evidentiary ruling does not stop the six-month clock, because it is not an appeal from an order “suppressing evidence.”
• A roadside breath test. Under Strizich, a preliminary breath test was a screening tool for probable cause, not proof of guilt. Check the current statute before relying on that rule.

Every case turns on its own facts and on the statutes in effect at the time.

How hard is it to win a speedy-trial dismissal in Montana?

The six-month rule is strict, but it has built-in exceptions.

• Standard of review. The denial of a motion to dismiss rests on a legal conclusion, which the Supreme Court reviews to determine whether it was correct (952 P.2d at 1367).
• Conditions. Dismissal is required only if the defendant’s trial “has not been postponed upon the defendant’s motion” and the State cannot show good cause (952 P.2d at 1367).
• The Bullock exception. Before Strizich, the six-month rule was satisfied if the lower court’s jurisdiction was exhausted within six months by an action that allowed an appeal de novo (952 P.2d at 1368). Strizich won because the State’s appeal was not such an action.

What made Strizich winnable was the record. The State admitted it had no good cause for the delay beyond its desire to appeal (952 P.2d at 1367).

The Boland Aarab Way

Thomas E. Boland represented William Strizich in this appeal, with Michael W. Cotter and Patricia O’Brien Cotter of Cotter & Cotter, P.C. Tom was admitted in 1974 and practiced in Great Falls from 1979. His daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP in 2017 as the successor to his practice. Strizich was won on a deadline and on a careful reading of what the statutes actually allow. The firm brings that attention to deadlines and evidence to the catastrophic injury cases and serious trucking and injury cases it handles today. When you hire Boland Aarab, you work directly with the attorneys who carry that practice forward.

Frequently Asked Questions

How long does Montana have to bring a misdemeanor to trial? Six months from the entry of a plea, unless the defendant postponed the trial or the State shows good cause. Otherwise the charge must be dismissed with prejudice (§ 46-13-401(2), MCA; Strizich, 952 P.2d at 1367).

Can the State appeal any evidence ruling it loses? No. The State may appeal an order “suppressing evidence,” which means excluding evidence because it was illegally obtained, not a ruling under the rules of evidence (Strizich, 952 P.2d at 1371; § 46-20-103(2)(e), MCA).

Were preliminary breath test results admissible to prove DUI? Under Strizich, no. PBT results were an estimate for probable cause, not substantive evidence (952 P.2d at 1372). The statutes have since been rewritten, so the current law should be checked.

Work With the Practice Behind These Cases

Boland Aarab is a Great Falls trial firm built on Tom Boland’s practice. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• State v. Strizich, 286 Mont. 1, 952 P.2d 1365 (1997) (CourtListener PDF)
• State v. Strizich (Google Scholar text with P.2d page numbers)
• § 46-13-401, MCA
• § 46-20-103, MCA
• § 46-17-311, MCA
• § 46-13-301, MCA
• § 46-13-302, MCA
• § 61-8-1002, MCA
• § 61-8-1018, MCA

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.