IN THE SUPREME COURT OF THE STATE OF MONTANA 

OP 21-0475 

JUSTIN THOMAS MILLER, 

Petitioner, t'

v. 

FIRST JUDICIAL DISTRICT COURT, 

LEWIS AND CLARK COUNTY, HON. 

CHRISTOPHER ABBOTT, Presiding Judge, 

Respondent. 

FILED 

SEP 2 8 2021 

Bowen Clerk of Greenwood 

S Suprerrie Cou rt tate of Montana 

ORDER 

Justin Thomas Miller seeks a writ of supervisory control over the First Judicial 

District Court directing it to dismiss negligent homicide charges pending against him in 

Lewis and Clark County Cause No. DDC-2020-615. After a thorough analysis, the 

District Court rejected Miller's claim that constitutional and statutory double jeopardy 

protections bar the charges against him. Miller argues, correctly, that this Court will review 

a double jeopardy claim on supervisory control, as authorized by M. R. App. P. 14(3), 

before a defendant's exposure to a second trial. See State v. Burton, 2017 MT 306, ¶ 18, 

389 Mont. 499, 407 P.3d 280. We accordingly accept supervisory control and consider his 

petition. 

Miller, a commercial trucker, learned during an August 6, 2020 Motor Carrier 

Services (MCS) inspection that his truck's axle had defective or missing parts and loose 

connecting rods. The MCS officer deemed the trailer unsafe to operate until these defects 

were addressed. The State alleges that Miller continued to drive the truck without 

adequately repairing the axle. Five days later, on August 11, 2020, while Miller was 

driving on Highway 200 within Lewis and Clark County, the rear wheel assembly 

disconnected from his trailer and struck a passing vehicle, killing the driver. 

Missoula County cited Miller a month later for violating motor carrier standards, alleging 

09/29/2021

Case Number: OP 21-0475
that Miller committed the offense of "Motor Carrier in Non-Compliance with 49 CFR 396 

— lst Offense" and describing the August 11 violation as "396.7(A) a motor vehicle shall 

not be operated in such condition as to likely cause an accident or breakdown." The citation 

alleged the offense occurred in Missoula County at Miller Transport's office at 

3670 Big Flat Road. Miller appeared in Missoula County Justice Court, entered a plea of 

no contest to the citations, and received a fine. 

The Lewis and Clark County Attorney, who had not been advised of 

Missoula County's citations before they were filed, obtained leave to file an Information 

in the First Judicial District Court and filed charges on November 24, 2020. Before the 

District Court, Miller sought dismissal of the charges under: (1) the guarantee against 

double, jeopardy found in the Fifth Amendment to the United States Constitution, 

applicable to the states through operation of the Due Process Clause of the Fourteenth 

Amendment; (2) the guarantee against double jeopardy found in Article II, Section 25, of 

the Montana Constitution; and (3) the statutory prohibition on successive prosecutions 

based on the same transaction found in § 46-11-504(1), MCA. The District Court 

addressed and rejected each of Miller's arguments. In this original proceeding, Miller 

challenges only the court's ruling that the Montana Constitution's double jeopardy 

provision does not bar the pending charges. 

This Court applies the Blockburger "same elements" test in determining whether 

multiple convictions based on the same transaction are barred under Article II, Section 25, 

of the Montana Constitution. State v. Minez, 2003 MT 344, ¶ 33, 318 Mont. 478, 82 P.3d 1 

(citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). Under this test, "[a] single 

act may be an offense against two statutes; and if each statute requires proof of an additional 

fact which the other does not, an acquittal or conviction under either statute does not 

exempt the defendant from prosecution and punishment under the other." State v. Savaria, 

284 Mont. 216, 222, 945 P.2d 24, 28 (1997) (quoting Blockburger, 284 U.S. at 304). 

See also State v. Wardell, 2005 MT 252, ¶¶ 17-18, 329 Mont. 9, 122 P.3d 443. A court's 

"inquiry . . . is directed to the elements of proof necessary to establish each [of the offenses 

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charged]." State v. Coleman, 185 Mont. 299, 311, 605 P.2d 1000, 1008 (1979). If 

"each requires proof of elements that other does not . . ., [a] defendant may be convicted 

and sentenced for both . . . without violating the double jeopardy prohibition even though 

the counts arose from the same conduct or episode." Coleman, 185 Mont. at 311-12, 

605 P.2d at 1009. Miller does not challenge the District Court's determination that the 

negligent homicide charges satisfy the Blockburger test. 

Miller argues instead—primarily on the strength of selected comments Made during 

the 1972 Constitutional Convention—that the Court should honor a greater protection 

under the Montana Constitution and apply a "same conduct" test for double jeopdrdy to 

prohibit a second prosecution on a new charge arising from a single "transgression against 

society." Miller suggests that the Court apply a standard the United States Supreme Court 

once used when it held that in the case of successive prosecutions, the latter is barred 

"if, to establish an essential element of an offense charged in that prosecution, the 

government will prove conduct that constitutes an offense for which the defendant has 

already been prosecuted." Grady v. Corbin, 495 U.S. 508, 510 (1990). The District Court 

rejected Miller's analysis, pointing out that "that test . . . was abandoned just three years 

later in United States v. Dixon, 509 U.S. 688, 704 (1993)." The court found no support in 

the Convention transcripts suggesting an intent to depart from the Blockburger standard 

"outside of the case of separate. sovereigns." 

Miller also points out that in State v. Guillaume, 1999 MT 29, ¶ 16, 293 Mont. 224, 

975 P.2d 312, we recognized a greater protection from Article II, Section 25, of the 

Montana Constitution against multiple punishments for the same offense than that provided 

by the Fifth Amendment to the United States Constitution. This Court held that applying 

the weapons enhancement statute to a felony offense when Ihe underlying offense itself 

requires proving the use of a weapon violates Montana's constitutional protection against 

double jeopardy. Guillaume, ¶ 16. The District Court found Guillaume unhelpful here 

because it addressed a "same prosecution, multiple punishments" situation and "did not 

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decide whether the term 'same offense' has any different meaning under the Montana 

Constitution[1" 

Miller has not persuaded us that the District Court has made a mistake of law and is 

causing a gross injustice. M. R. App. P. 14(3)(a). We agree that the Montana Constitution 

does not bar the negligent homicide charges against him, and the case may proceed to trial. 

IT IS THEREFORE ORDERED that the District Court's September 1, 2021 Order 

denying Miller's motion to dismiss is AFFIRMED. 

The Clerk is directed to provide notice of this Order to counsel for the Petitioner, to 

all counsel of record in Lewis and Clark County Cause No. DDC-2020-615, and to the 

First Judicial District Court, the Hon. Christopher Abbott, presiding. 

Dated this day of September, 2021. 

Chief Justice 

i‘e 

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