Summary
The Montana Supreme Court affirmed the denial of Elroy Patrick Keenan's motion to dismiss or reduce a felony DUI charge based on an allegedly unconstitutional prior DUI conviction. The court held that Keenan's inability to recall whether he was advised of or waived his right to counsel, combined with a missing arraignment recording, did not rebut the presumption of regularity applicable to the prior conviction.
Topics
Practice areas
Questions Presented
- Whether the district court erred in denying Keenan's motion to dismiss or amend the felony DUI charge based on his collateral challenge to the constitutional validity of the 1990 DUI conviction.
- Whether Keenan's inability to recall being advised of or waiving his right to counsel, combined with a silent or unavailable prior-record, constituted direct evidence sufficient to rebut the presumption of regularity attached to the prior conviction.
Holdings
- A defendant's inability to recall whether he was advised of or waived the right to counsel is not direct evidence sufficient to rebut the presumption of regularity attached to a prior DUI conviction, even when the record of the prior proceeding is silent or unavailable.
- The 1990 DUI conviction was constitutionally sound for purposes of the collateral challenge, so the district court properly denied Keenan's motion to dismiss or amend the felony DUI charge.
Key quotations
“Likewise, Keenan's inability to recall whether he waived his right to counsel during the 1990 arraignment does not constitute direct evidence sufficient to rebut the presumption of regularity, even in the face of a silent record.” (1039)
“On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights.” (1039)
Factual background
Keenan was arrested and charged with a fourth lifetime DUI offense, which was classified as a felony based on DUI convictions from 1995, 1990, and 1986. He challenged the use of the 1990 conviction, asserting that he could not afford counsel, was not represented, did not recall being advised of his right to counsel, and did not recall waiving that right. The record of the 1990 arraignment was unavailable because the audiotape could not be located, but there was no allegation that the missing record resulted from governmental misconduct.
Procedural history
Keenan was charged with felony DUI based on three prior DUI convictions. He moved to dismiss or amend the charge, arguing that his 1990 DUI conviction was constitutionally infirm because he had not been represented by counsel and did not recall waiving counsel. The Fourth Judicial District Court, Missoula County, denied the motion. Keenan then entered a conditional guilty plea, reserved his right to appeal, and appealed after judgment was entered.