No

No. 98-060

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 234

STATE OF MONTANA, 

Plaintiff and Respondent, 

v.

ARLAN KOEHN, 

Defendant and Appellant. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (1 of 9)4/19/2007 12:10:22 PM
No

APPEAL FROM: District Court of the Thirteenth Judicial 

District, 

In and for the County of Yellowstone, 

Honorable Russell C. Fagg, Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

Brad L. Arndorfer, Arndorfer Law Firm, Billings, Montana

For Respondents:

Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins,

Assistant Attorney General, Helena, Montana

Dennis Paxinos, County Attorney; Joe Coble and Dave Legare,

Deputy County Attorneys, Billings, Montana

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (2 of 9)4/19/2007 12:10:22 PM
No

Submitted on Briefs: August 27, 1998 

Decided: September 22, 1998

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶ Arlan Koehn (hereinafter Koehn) appeals from the orders of the Thirteenth 

Judicial District Court, Yellowstone County, denying his motions to dismiss a felony 

charge of driving a motor vehicle while under the influence of alcohol (felony DUI). 

We affirm the decision of the District Court.

ISSUES

¶ 1. Did the District Court err in failing to dismiss Koehn's felony DUI charge due to 

a lack of competent evidence proving Koehn had a prior conviction for DUI in 1988?

¶ 2. Did the District Court err in failing to dismiss Koehn's felony DUI charge as 

violative of the Equal Protection Clause?

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (3 of 9)4/19/2007 12:10:22 PM
No

¶ 3. Did the District Court err in failing to dismiss Koehn's felony DUI charge as 

violative of the Due Process Clause? 

BACKGROUND

¶ Koehn was charged on June 25, 1996, with driving under the influence of alcohol, 

fifth offense, in violation of § 61-8-401, MCA, and driving while license is suspended 

or revoked in violation of § 61-5-212, MCA. The violation of § 61-8-401, MCA, was 

prosecuted as a felony offense under § 61-8-731, MCA, due to Koehn's prior history, 

which included four earlier convictions for DUI in Koehn's home state of South 

Dakota in 1984, 1988, 1991 and 1995. 

¶ Prior to trial, Koehn filed a motion to dismiss the felony DUI charge on the 

grounds of selective prosecution in violation of his right to equal protection and due 

process of law. The District Court deferred hearing the motion at that time, the 

matter proceeded to trial, and the jury found Koehn guilty on both charges. 

¶ Koehn then renewed his motion to dismiss, and an evidentiary hearing was held on 

July 22, 1997, in which various members of the Yellowstone County Attorney's office 

testified regarding the County Attorney's policy on charging and investigating felony 

DUI offenses. This testimony showed that prior to January 1997, it had been the 

practice of the County Attorney's office, when prosecuting DUI offenses, to obtain 

and consider information on pre-1989 DUI convictions. Effective January 1997, 

however, this policy had been amended, and the County Attorney's office was no 

longer seeking to obtain information on DUI convictions rendered prior to 1989 

when determining whether to prosecute a current violation as a felony DUI offense. 

¶ Based on the evidence received at the July 22, 1997 hearing, the District Court 

entered an order denying Koehn's motion to dismiss on constitutional grounds. 

However, shortly before the sentencing hearing, Koehn filed another motion to 

dismiss on the grounds of insufficiency of evidence to prove the existence of the 1988 

DUI conviction upon which the felony charge was partially based. The District Court 

denied this motion also, determining that there was adequate proof of the prior 

conviction to support application of the felony charge.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (4 of 9)4/19/2007 12:10:22 PM
No

STANDARD OF REVIEW

¶ A district court's decision to grant or deny a motion to dismiss in a criminal case 

involves a question of law which this Court reviews de novo to determine whether the 

court's conclusions are correct. State v. McKee, 1998 MT 110, ¶13, 958 P.2d 700, ¶ 13, 

55 St.Rep. 433, ¶ 13. Moreover, when resolution of an issue involves a question of 

constitutional law, our review of the lower court's interpretation of the law is 

plenary. Matter of S.L.M. (Mont. 1997), 951 P.2d 1365, 1370, 54 St.Rep. 1480, 1484; 

State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503. 

FIRST ISSUE 

¶ Did the District Court err in failing to dismiss Koehn's felony DUI charge due to a 

lack of competent evidence proving Koehn had a prior conviction for DUI in 1988?

¶ Section 61-8-401(a), MCA, makes it unlawful and punishable for a person under 

the influence of alcohol to drive or be in actual physical control of a vehicle. The 

penalties for the first three violations of § 61-8-401, MCA, are found in § 61-8-714, 

MCA. However, upon a fourth or subsequent conviction for DUI, the offense 

becomes a felony offense and is subject to the enhanced penalties set forth in § 61-8-

731, MCA. In order for felony status and an enhanced penalty to be imposed, the 

defendant's prior conviction record must demonstrate that the current offense is a 

fourth or subsequent violation of § 61-8-401, MCA.

¶ At the sentencing hearing, the State submitted evidence of the 1988 DUI conviction 

in the form of an abstract of an FBI Identification Record on Koehn (hereinafter the 

FBI abstract) which included an arrest for DUI in March 1988 in Watertown, South 

Dakota, but did not indicate the disposition of the charge. The State also submitted 

an uncertified copy of a Judgment of Conviction and Order Suspending Sentence 

issued by the Circuit Court of Codington County, South Dakota (hereinafter the 

South Dakota judgment), which states that Koehn plead guilty to and was sentenced 

on a charge of driving while under the influence of alcohol on August 2, 1988. Also 

placed into evidence was a Pre-Sentence Investigation Report prepared by the 

Department of Corrections and Human Services, which did not mention the 1988 

conviction. 

¶ Koehn asserts that the trial court improperly considered his 1988 DUI conviction 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (5 of 9)4/19/2007 12:10:22 PM
No

to enhance his sentence because the court improperly relied on the uncertified copy 

of the FBI abstract and the South Dakota judgment. It follows that if the 1988 

conviction cannot be established, the 1984 conviction is likewise eliminated from 

consideration by operation of an earlier statute which provided for the expungement 

of a DUI conviction after five years if no similar conviction occurred within that 

time. See State v. Brander (1996), 280 Mont. 148, 930 P.2d 31; State v. Sidmore (Mont. 

1997), 951 P.2d 558, 54 St.Rep. 1381. Without the 1988 and 1984 convictions, Koehn 

argues, his record reflects only two previous DUI convictions, which is not sufficient 

to support the jurisdiction of the District Court or the imposition of the felony DUI 

charge. 

¶ Nevertheless, despite his arguments on appeal, Koehn conceded in writing in his 

second and third motions to dismiss filed with the District Court that he had four 

prior convictions of DUI in South Dakota, including his conviction in 1988. In 

Rasmussen v. Heebs Food Ctr. (1995), 270 Mont. 492, 497, 893 P.2d 337, 340, we 

described a "judicial admission" as "an express waiver made in court by a party or 

his attorney conceding the truth of an alleged fact." We noted that such an admission 

has a conclusive effect upon the party who makes it and prevents that party from 

introducing further evidence to prove, disprove or contradict the admitted fact. 

Rasmussen, 270 Mont. at 497, 893 P.2d at 340 (citation omitted). Accord DeMars v. 

Carlstrom (1997), 285 Mont. 334, 337-38, 948 P.2d 246, 248-49. 

¶ In the case at bar, Koehn, having twice conceded in writing in court that he had 

four prior DUI convictions, is bound by these judicial admissions of fact and may not 

now argue that there is no competent evidence of his 1988 conviction. 

SECOND ISSUE

¶ Did the District Court err in failing to dismiss Koehn's felony DUI charge as 

violative of the Equal Protection Clause?

¶ It is Koehn's assertion that the Yellowstone County Attorney's office discriminated 

against him by prosecuting him for felony DUI when other similarly situated 

offenders were charged with lesser offenses. Koehn contends that this discriminatory 

treatment was based on his out-of-state residency status and that he would not have 

been so charged had he been a Montana resident. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (6 of 9)4/19/2007 12:10:22 PM
No

¶ The District Court, in its Findings of Fact and Conclusions of Law issued August 

28, 1997, determined there was no equal protection violation stemming from the 

actions or policies of the Yellowstone County Attorney's office, because the actions of 

that office did not result in discriminatory treatment of an identifiably burdened 

class. Our review of the record supports the District Court's conclusions on this 

issue. 

¶ The Fourteenth Amendment of the United States Constitution and Art. II, Sec. 4 of 

the 1972 Montana Constitution guarantee equal protection of the laws to all persons. 

Matter of C.H. (1984), 210 Mont. 184, 197, 683 P.2d 931, 938. The principal purpose 

of the equal protection clauses is to insure that persons are not made the subject of 

arbitrary and discriminatory state action. Godfrey v. Montana State Fish & Game 

Com'n (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267. A threshold issue in our 

determination of whether the prosecutor's conduct denied Koehn equal protection of 

the law is whether the challenged action actually resulted in unfair or discriminatory 

treatment. If all the members of a class are treated equally, there can be no equal 

protection violation. State v. Tadewaldt (1996), 277 Mont. 261, 270, 922 P.2d 463, 468. 

¶ Koehn was arrested and charged with a DUI in June 1996, at which time the 

Yellowstone County Attorney's office sought and obtained information on his prior 

conviction record. This record included DUI convictions in 1984, 1988, 1991 and 

1995. None of Koehn's prior convictions qualified for expungement under the 

rationale set forth in Brander, 280 Mont. at 155, 930 P.2d at 35, and Sidmore, 951 

P.2d at 565, 54 St.Rep. at 1385, because there was no five-year period between 

convictions during the relevant time frame. Neither were any of these convictions 

susceptible to collateral attack on the grounds set forth in State v. Okland (1997), 283 

Mont. 10, 15, 941 P.2d 433, 434, because Koehn had been represented by counsel 

during each of the prior prosecutions. All of Koehn's prior convictions were 

therefore properly considered in charging him with felony DUI on his June 1996 

offense. 

¶ More than six months after Koehn's arrest, the Yellowstone County Attorney's 

office prospectively altered its charging policies so that it would no longer seek to 

obtain information on prior DUI convictions received before October 1, 1989. This 

change in policy was motivated by the practical difficulties the county attorney's 

office had experienced in obtaining and using these older records, including the fact 

that the records were difficult to locate, were often incomplete, were vulnerable to 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (7 of 9)4/19/2007 12:10:22 PM
No

collateral attack for lack of information regarding a proper waiver of right to 

counsel, or had been expunged by operation of an earlier version of the DUI statutes. 

The policy regarding investigation of pre-1989 convictions was implemented in 

January 1997 and applied to all DUI offenders charged subsequent to its adoption. 

The change in charging policy was not applied to Koehn, because he had been 

charged prior to the adoption of the change, after the prosecutor's office had already 

obtained the information in his record, and prospective application of the policy did 

not require the prosecutor's office to disregard information it had already expended 

resources in obtaining. 

¶ Koehn argues that this change in policy was not uniformly applied because others 

who were charged with a similar offense during the same period of time received 

reduced charges, while he did not. Koehn also points out that each of the other 

defendants were residents of Montana and asserts that favorable treatment was 

accorded for that reason. However, the evidence contained in the record convinces us 

that the reduction in charges in the cases cited by Koehn was due to factors unrelated 

to the residency of the particular defendants and for reasons that did not apply in 

Koehn's case, such as the inability of the prosecutor to obtain information on a 

particular defendant's prior convictions, or prove the prior convictions, or use the 

prior convictions due to an ineffective waiver of counsel during the prior 

proceedings. Our review of the record does not support Koehn's contention that the 

Yellowstone County Attorney's office engaged in discriminatory treatment of him, 

and for this reason we uphold the decision of the District Court.

THIRD ISSUE

¶ Did the District Court err in failing to dismiss Koehn's felony DUI charge as 

violative of the Due Process Clause? 

¶ Koehn also argues that the application of the prosecutor's January 1997 policy 

against investigating pre-1989 convictions to prospective offenders but not to those 

whose charges were already pending is violative of his right to due process of law. 

However, as the State points out, this argument was not presented by Koehn in his 

brief to the District Court in support of his motion to dismiss. Although Koehn's 

pleadings make the bald assertion that he has been denied due process of law, such 

an assertion is not sufficient to preserve an issue on appeal without a clearer 

articulation of the basis of the challenge, and unless plain error can be shown, a 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (8 of 9)4/19/2007 12:10:22 PM
No

party may not advance a theory on appeal that was not sufficiently asserted before 

the trial court. State v. Greywater (1997), 282 Mont. 28, 35, 939 P.2d 975, 979; 

Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 191, 676 P.2d 1308, 1310-11;

Akhtar v. Van De Wetering (1982), 197 Mont. 205, 209, 642 P.2d 149, 152. We 

therefore decline to address this issue.

¶ Affirmed. 

/S/ J. A. TURNAGE

We concur:

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-060_(09-22-98)_Opinion.htm (9 of 9)4/19/2007 12:10:22 PM