DA 16-0687

IN THE SUPREME COURT OF THE STATE OF MONTANA

2018 MT 94

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

DAVID MICHAEL ZIMMERMAN,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. DDC-2015-211

Honorable James P. Reynolds, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Greg Beebe, Beebe Law Firm, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant

Attorney General, Helena, Montana

Leo J. Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy

County Attorney, Helena, Montana

Submitted on Briefs: January 24, 2018

 Decided: April 17, 2018

Filed:

__________________________________________

Clerk

04/17/2018

Case Number: DA 16-0687
2

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Defendant David Michael Zimmerman (“Zimmerman”) appeals the denials of his 

motion to suppress and motion in limine and the grant of the State’s motion in limine by 

the First Judicial District Court, Lewis and Clark County. We address: 

Issue One: Whether the District Court erred by denying Zimmerman’s motion to 

suppress the standard field sobriety test results on the basis that the arresting officer 

lacked particularized suspicion to administer them.

Issue Two: Whether the District Court erred by granting the State’s motion in 

limine to preclude Zimmerman from introducing or referencing the arresting 

officer’s previous police reports for purposes of impeachment.

Issue Three: Whether the District Court erred by allowing evidence of 

Zimmerman’s prior DUIs to establish the offense of Aggravated DUI.

¶2 We affirm in part, reverse in part, and remand for further proceedings consistent 

with this Opinion.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 At approximately 10:00 p.m. on June 16, 2015, while traveling northbound on North 

Montana Avenue in Helena, Montana, Highway Patrol Trooper Jeremy Lee (“Lee”) 

clocked Zimmerman traveling southbound at 60 miles-per-hour where the speed limit 

changes from 50 to 35 miles per hour. Lee made a U-turn and stopped Zimmerman for 

speeding. Once Lee observed several indicators of intoxication after asking for 

Zimmerman’s license, registration, and proof of insurance, the traffic stop ripened into a 

DUI investigation. Lee’s report and testimony stated: Zimmerman’s breath smelled of 

alcohol; his eyes were “pie-eyed,” bloodshot, and watery; his movement was slow and 
3

labored; and his speech was slurred. Lee asked Zimmerman to perform standardized field

sobriety tests, which Lee concluded indicated that Zimmerman was intoxicated. Lee cited 

Zimmerman for speeding and arrested him on suspicion of DUI. Zimmerman refused a 

preliminary breath test at the scene, but he later consented to a blood test. The blood test 

indicated Zimmerman had a 0.088 blood alcohol content (“BAC”). 

¶4 On June 17, 2015, the State charged Zimmerman with DUI, fourth or subsequent 

offense, in violation of § 61-8-401(1)(a), MCA. On June 16, 2016, the State filed a Second 

Amended Information, charging Zimmerman with: Count I—Aggravated DUI, a felony, 

in violation of § 61-8-465(1)(e), MCA; or, in the alternative, Count II—Aggravated DUI

per se (0.08 or higher BAC), a felony, in violation of § 61-8-465(1)(e), MCA.

¶5 On November 17, 2015, Zimmerman moved for discovery of Lee’s other police

reports, and the District Court ordered the State to make available Lee’s reports that 

involved DUI arrests and investigations for six months before and six months after 

Zimmerman’s June 15, 2015 arrest. 

¶6 On December 23, 2015, Zimmerman filed a motion to suppress field sobriety tests 

based on newly discovered evidence in twenty-nine DUI reports generated by Lee between 

January 18, 2015, and December 5, 2015. Zimmerman argued that Lee’s reports, which 

provided the basis for particularized suspicion for all his DUI investigations, contained 

nearly identical language, including the same typographical errors. Zimmerman asserted 

these indistinguishable reports called into question whether Lee made accurate 

individualized reports of his traffic stops and whether he possessed sufficient particularized 

suspicion to investigate Zimmerman for DUI in this case.
4

¶7 At the suppression hearing on February 9, 2016, Lee explained his report-writing 

process in which he cuts and pastes previous reports and amends the reports while 

reviewing the video of the stop, deleting irrelevant information, and adding observations 

cued from the video and his memory. Lee testified his reports contain nearly identical 

language because DUI investigations themselves are similar in both indications of DUI and 

the process of the stop. He denied fabricating any observations, insisted the report 

regarding Zimmerman was accurate, and stated that his cut-and-paste report-writing 

technique saves time. Lee acknowledged making a mistake in a previous DUI report in 

which he reported the suspect’s Vertical Gaze Nystagmus (“VGN”) test indicated the 

suspect was intoxicated, but video evidence showed Lee did not even administer the VGN 

test.

¶8 The District Court denied Zimmerman’s motions to suppress. Addressing 

Zimmerman’s assertion that Lee’s cut-and-paste method of preparing reports indicated he 

falsely created the report regarding Zimmerman, the District Court reasoned that “to accept 

Zimmerman’s argument, the Court must conclude that Lee is not credible.” The District 

Court concluded that Lee had sufficient particularized suspicion to investigate Zimmerman 

for DUI.

¶9 On June 22, 2016, Zimmerman filed a motion in limine pursuant to M. R. Evid. 403, 

requesting exclusion of his prior DUI convictions, which were the predicate offenses to the 

charge of Aggravated DUI. On the first day of trial the parties argued the motion in limine 

and jury instructions related to the prior DUI evidence. Zimmerman argued that if the jury 

heard evidence of his prior DUI convictions, the prejudice would be insurmountable. 
5

Zimmerman offered to stipulate to and requested the District Court take judicial notice of

the prior DUI convictions to mitigate this prejudice.

¶10 The State argued that Zimmerman’s prior DUI convictions were admissible because 

the convictions were an element of Aggravated DUI pursuant to § 61-8-465(1), MCA, 

which the State was required to prove beyond a reasonable doubt. 

¶11 The District Court denied Zimmerman’s motion in limine and allowed the State to 

use evidence of Zimmerman’s prior DUI convictions, stating: “That’s exactly the nature 

of the [Aggravated DUI] offense, someone who has engaged in repeat behavior violating 

the DUI laws. And so it seems like everything is on the table under that scenario. . . . The 

State is entitled to show those elements in full.” The District Court read the jury a limiting

instruction that stated, in part: “That evidence [of prior DUI convictions] was not admitted 

to prove the character of [the Defendant] or to show he acted in conformity with that 

character.” The jury returned a guilty verdict. 

¶12 The District Court sentenced Zimmerman to the Montana Department of 

Corrections (“DOC”) for thirteen months followed by a four-year DOC-suspended 

sentence with conditions. Zimmerman timely appeals. 

STANDARDS OF REVIEW

¶13 We review a district court’s evidentiary rulings for an abuse of discretion. State v. 

Meyer, 2017 MT 124, ¶ 12, 387 Mont. 422, 396 P.3d 1265 (citing State v. Jenkins, 2011 

MT 287, ¶ 4, 362 Mont. 481, 265 P.3d 643). An abuse of discretion occurs when the 

district court acts arbitrarily without the employment of conscientious judgment or exceeds 

the bounds of reason, resulting in substantial injustice. State v. Price, 2006 MT 79, ¶ 17, 
6

331 Mont. 502, 134 P.3d 45. Although a district court possesses broad discretion to 

determine the admissibility of evidence, judicial discretion must be guided by the Rules of 

Evidence, applicable statutes, and principles of law. Maier v. Wilson, 2017 MT 316, ¶ 17, 

390 Mont. 43, 409 P.3d 878 (citing Price, ¶ 17). To the extent that a discretionary ruling 

is based on a conclusion of law, our review is plenary. Maier, ¶ 17. Further, we determine 

whether the court’s underlying findings of fact are clearly erroneous, which occurs if they 

are not supported by substantial credible evidence, the court has misapprehended the effect 

of the evidence, or if our review of the record leaves us with a definite and firm conviction 

that a mistake has been committed. State v. Murray, 2011 MT 10, ¶ 11, 359 Mont. 123,

247 P.3d 721. An erroneous evidentiary ruling constitutes reversible error when a 

substantial right of the party is affected. M. R. Evid. 103. 

DISCUSSION

¶14 Issue One: Whether the District Court erred by denying Zimmerman’s motion to 

suppress the standard field sobriety test results on the basis that the arresting officer 

lacked particularized suspicion to administer them.

¶15 The Fourth Amendment to the U.S. Constitution and Article II, Section 11 of the 

Montana Constitution protect a person against unreasonable searches and seizures, which 

includes brief investigatory stops such as traffic stops and DUI investigations. State v. 

Elison, 2000 MT 288, ¶ 15, 302 Mont. 228, 14 P.3d 456. An officer may stop any person 

“that is observed in circumstances that create a particularized suspicion that the person or 

occupant of the vehicle has committed, is committing, or is about to commit an offense.” 

Section 46-5-401, MCA. “A statutory violation alone is sufficient to establish 
7

particularized suspicion for an officer to make a traffic stop.” Kummerfeldt v. State, 

2015 MT 109, ¶ 11, 378 Mont. 522, 347 P.3d 1233. 

¶16 The particularized suspicion necessary to justify an initial investigatory stop may, 

but does not automatically, extend to the particularized suspicion required for an alternative 

investigation into another offense. Hulse v. Dep’t of Justice, Motor Vehicle Div., 1998 MT 

108, ¶¶ 39–42, 289 Mont. 1, 961 P.2d 75. Therefore, before an officer may investigate

DUI after a traffic stop and administer field sobriety tests or breath tests for BAC, the 

officer must have a separate “particularized suspicion that the person was driving or in 

actual physical control of a vehicle upon ways of this state open to the public while under 

the influence of alcohol or in violation of 61-8-410 or 61-8-465.” Section 61-8-409(1), 

MCA; see also State v. Toth, 2003 MT 208, ¶ 12, 317 Mont. 55, 75 P.3d 323. 

¶17 The State must show the officer had particularized suspicion to justify an 

investigatory stop, defined as: (1) objective data and articulable facts from which he or she 

can make certain reasonable inferences; and (2) a resulting suspicion that the person to be 

stopped has committed, is committing, or is about to commit an offense. Elison, ¶¶ 15–16. 

Whether particularized suspicion exists at the time of an investigatory stop is a question of 

fact determined by the totality of the circumstances, and “a court should consider the 

quantity, or content, and quality, or degree of reliability, of the information available to the 

officer.” State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37, 40 (1997), quoted in Elison, ¶ 16. 

If the officer lacked particularized suspicion, and no other exceptions to the warrant 

requirement apply, the search and seizure is unconstitutional and all evidence emanating 
8

from the illegal testing must be suppressed. Bramble v. State, 1999 MT 132, ¶¶ 23–24, 

294 Mont. 501, 982 P.2d 464. 

¶18 Zimmerman argues that because Lee’s report regarding Zimmerman was simply cut 

and pasted from previous reports, it lacked individualized observations of Zimmerman’s 

behavior. Further, Zimmerman argues that because Lee’s reports of twenty-nine other DUI 

stops reflect identical, or nearly identical, language about suspect behavior, the report is 

untruthful and inaccurate. Such a discredited report, Zimmerman asserts, cannot support 

reasonable grounds upon which to base the requisite particularized suspicion needed to 

justify Lee’s investigation of Zimmerman for DUI. 

¶19 In denying Zimmerman’s motion to suppress, the District Court noted “the major 

flaw in Zimmerman’s attack on Lee’s report writing is that these reports all concern persons 

who were intoxicated, . . . demonstrat[ing] similar effects of alcohol intoxication, such as 

odor of alcohol, watery or bloodshot eyes, slurred speech, and slow or labored 

movements.” Thus, the District Court held that it “cannot conclude that Lee’s identical or 

similar descriptions of persons exhibiting these physical indications are indicative that Lee 

is misleading in his reports.” There is no question that Lee had the requisite suspicion to 

initiate the traffic stop based on Lee’s speed limit violation. When Lee engaged 

Zimmerman during the traffic stop, Lee observed indications that led him to believe 

Zimmerman may be intoxicated; this prompted Lee to investigate Zimmerman for DUI. 

Hulse, ¶¶ 40–42.

¶20 Lee’s observations detailed in his report and the video of the stop that objectively 

documents Lee’s observation that Zimmerman smelled of alcohol, establish that Lee had 
9

articulable facts and a resulting particularized suspicion to justify his investigation of

Zimmerman for DUI. Hulse, ¶ 42. During the hearing on the motions to suppress, the 

District Court considered Lee’s testimony and the video of the stop, and found Lee

credible. The District Court rejected Zimmerman’s argument that Lee’s reports must be 

fabricated because of the lack of individualized reporting. The District Court’s findings of 

fact were not clearly erroneous and its interpretation and application of the law was correct. 

See State v. Nixon, 2012 MT 316, ¶ 21, 367 Mont. 495, 291 P.3d 1154 (“The weight of 

evidence and the credibility of witnesses are exclusively within the province of the trier of 

fact, and we will not reweigh the evidence or the credibility of witnesses.”). Thus, the 

District Court did not err by denying Zimmerman’s motion to suppress.

¶21 Issue Two: Whether the District Court erred by granting the State’s motion in 

limine to preclude Zimmerman from introducing or referencing the arresting 

officer’s previous police reports for purposes of impeachment.

¶22 Defendants are guaranteed the right to due process and a fair trial, which includes 

the right to confront adverse witnesses under the Sixth and Fourteenth Amendments of the 

U.S. Constitution and Article II, Sections 17 and 24 of the Montana Constitution. State v. 

Porter, 2018 MT 16, ¶ 17, 390 Mont. 174, 410 P.3d 955. Generally, under M. R. Evid. 

402, “all relevant evidence is admissible,” which is defined as “evidence having any 

tendency to make the existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without the evidence,” 

M. R. Evid. 401. However, relevant “evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 
10

misleading the jury, or by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence.” M. R. Evid. 403. 

¶23 If evidence bears upon the credibility of a witness, that evidence is relevant for 

impeachment purposes. M. R. Evid. 401; see also State v. Weisbarth, 2016 MT 214, ¶ 21, 

384 Mont. 424, 378 P.3d 1195. “The jury . . . is the exclusive judge of a witness’s 

credibility,” § 26-1-302, MCA, and as such, is “entitled to assess all evidence which might 

bear on the accuracy and truth of a witness’ testimony,” United States v. Abel, 469 U.S. 45, 

52, 105 S. Ct. 465, 469 (1984). The credibility of a witness may be attacked by any party. 

M. R. Evid. 607. A party may controvert a witness’s truthfulness “by any matter that has 

a tendency to disprove the truthfulness of a witness’s testimony” including, but not limited 

to “inconsistent statements of the witness” and “other evidence contradicting the witness’s 

testimony.” Section 26-1-302, MCA. “Specific instances of the conduct of a witness, for 

the purpose of attacking or supporting the witness’ credibility, may not be proved by 

extrinsic evidence.” M. R. Evid. 608(b). Although in the discretion of the court, specific 

instances of conduct may be inquired into on cross-examination of the witness concerning 

the witness’s character for truthfulness or untruthfulness if the evidence is probative of 

truthfulness or untruthfulness. M. R. Evid. 608(b). 

¶24 The State argued that Zimmerman should be precluded from introducing or 

referencing Lee’s other DUI reports because: (a) the reports were not relevant to his case 

pursuant to M. R. Evid. 401 and 402; (b) the reports would confuse the jury or be an undue 

delay and waste of time pursuant to M. R. Evid. 403; and (c) the reports are extrinsic 
11

evidence, which Zimmerman cannot use to attack Lee’s credibility pursuant to M. R. Evid. 

608.

¶25 Zimmerman maintains Lee’s reports are both relevant and admissible to attack Lee’s 

credibility under M. R. Evid. 401, 402, and 608(b) because the fact that Lee admittedly 

cuts and pastes his reports and verified at least one mistake regarding another suspect who 

was not given a test—even though Lee reported that suspect failed that test—was relevant 

to Lee’s credibility and truthfulness. We agree.

¶26 When denying Zimmerman’s motion to suppress, the District Court noted: “To a 

large degree, for the Court to accept Zimmerman’s argument, the Court must conclude that 

Lee is not credible.” Thus, the District Court obviously recognized that Zimmerman sought 

to use Lee’s other DUI reports to challenge his credibility. The District Court was within 

its discretion to reject this challenge for purposes of the motion to suppress. However,

when granting the State’s motion in limine, the District Court’s conclusion that 

Zimmerman’s challenge to Lee’s credibility was inadmissible because the challenge was 

being made with extrinsic evidence failed to acknowledge the pertinent exception of 

M. R. Evid. 608(b), which provides that specific instances of conduct may be inquired into 

on cross-examination concerning the witness’s character for truthfulness or untruthfulness 

if the evidence is probative of such. Further, the District Court made a factual finding that, 

because Lee’s reports resulted in the other suspects being found guilty of DUI, the evidence 

of Lee’s prior DUI reports were not relevant, and precluded under M. R. Evid. 402. The 

District Court then added that Zimmerman’s examination into Lee’s reports had a 
12

substantial possibility of confusing the jury and causing undue delay contrary to 

M. R. Evid. 403. 

¶27 Zimmerman sought to challenge Lee’s credibility by questioning Lee’s 

cut-and-paste reporting techniques that led to at least one mistake in which Lee reported 

the suspect failed a test Lee never administered. As such, the way in which Lee documents 

his stops is relevant to whether he is generating accurate reports regarding his observations 

of DUI suspects, M. R. Evid. 402, and appropriately admissible for impeachment purposes 

to challenge Lee’s character for truthfulness, M. R. Evid. 608(b). Nothing in the Rules of 

Evidence provides that testimony admissible for one purpose and inadmissible for another 

is thereby rendered inadmissible. Abel, 469 U.S. at 56, 105 S. Ct. at 471. To the contrary:

“It would be a strange rule of law which held that relevant, competent evidence which 

tended to show bias on the part of a witness was nonetheless inadmissible because it also 

tended to show that the witness was a liar.” Abel, 469 U.S. at 56, 105 S. Ct. at 471.

¶28 The District Court recognized the crux of Zimmerman’s defense was to impeach 

Lee’s credibility, and it should have allowed Zimmerman to use Lee’s reports to challenge 

his credibility in front of the jury. See § 26-1-302, MCA (providing “[t]he jury . . . is the 

exclusive judge of a witness’s credibility” and a party may controvert a witness’s 

truthfulness “by any matter that has a tendency to disprove the truthfulness of a witness’s 

testimony” including, but not limited to “inconsistent statements of the witness” and “other 

evidence contradicting the witness’s testimony.”); see also Abel, 469 U.S. at 52, 

105 S. Ct. at 457 (stating “the jury, as finder of fact and weigher of credibility, has 

historically been entitled to assess all evidence which might bear on the accuracy and truth 
13

of a witness’ testimony.”). Although Lee’s explanation for his cut-and-paste method as a 

function of expediency was certainly plausible, it was for the jury to assess that plausibility. 

Regarding whether the presentation of Lee’s reports would devolve into a chapter and verse 

recitation of twenty-nine DUI investigations and cause undue delay, the District Court has 

the power to place appropriate parameters on Zimmerman’s cross-examination of Lee, and 

limit it to what is necessary to present Zimmerman’s theory that Lee’s reports are not 

accurate, truthful reflections of his stops. The District Court abused its discretion by 

granting the State’s motion in limine and preventing Zimmerman from challenging Lee’s 

credibility in front of the jury.

¶29 Issue Three: Whether the District Court erred by allowing evidence of 

Zimmerman’s prior DUIs to establish the offense of Aggravated DUI.

¶30 Evidence of other crimes, wrongs, or acts is inadmissible as a general rule in 

Montana, M. R. Evid. 404(b), 403, and 609, and such evidence may not be admitted to 

prove a person’s character and show that he or she acted in conformity with that character 

on a particular occasion, M. R. Evid. 404. State v. Franks, 2014 MT 273, ¶ 14, 376 Mont. 

431, 335 P.3d 725. However, evidence of other crimes may “be admissible for other 

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.” M. R. Evid. 404(b). Rather than prohibiting 

the admission of evidence, M. R. Evid. 404(b) prohibits a theory of admissibility. Franks, 

¶ 14 (citing State v. Dist. Ct. of the Eighteenth Judicial Dist., 2010 MT 263, ¶ 47, 

358 Mont. 325, 246 P.3d 415). “Evidence of prior crimes is inadmissible if offered for a 

purpose that requires the inference from bad act to bad person to guilty person, but may be 
14

admissible if it proves a material issue without requiring any inference to the defendant’s 

criminal disposition.” Franks, ¶ 14 (internal citations and quotations omitted).

¶31 Regardless of the purpose for which the evidence is admitted, evidence of other 

crimes may unduly prejudice the jury against the defendant. Franks, ¶ 15 (citing State v. 

Sage, 2010 MT 156, ¶ 36, 357 Mont. 99, 235 P.3d 1284); Meyer, ¶ 24 (“Undoubtedly the 

admission of the [prior DUI] evidence was prejudicial.”). Evidence offered for a valid 

purpose under M. R. Evid. 404(b) is still subject to the balancing test prescribed by 

M. R. Evid. 403, which allows the exclusion of relevant evidence if its probative value is 

substantially outweighed by the danger of unfair prejudice. Franks, ¶ 15 (citing State v. 

Stewart, 2012 MT 317, ¶ 67, 367 Mont. 503, 291 P.3d 1187). Unfair prejudice may arise 

from evidence that provokes the jury’s hostility or sympathy for one side, confuses or 

misleads the jury, or unduly distracts the jury from the main issues. Franks, ¶ 16 (citing 

State v. Bieber, 2007 MT 262, ¶ 59, 339 Mont. 309, 170 P.3d 444). 

¶32 Zimmerman argues the State capitalized on his prior DUI convictions throughout 

the trial by forcing Zimmerman to testify about their circumstances and, therefore, he was 

prejudiced. See State v. Bingman, 2002 MT 350, ¶ 37, 313 Mont. 376, 61 P.3d 153 

(“[M. R. Evid. 609 “prohibits the admission of evidence that a witness has been convicted 

of a crime for the purpose of attacking that witness’s credibility.”). The State counters it 

simply presented Zimmerman’s driving record that indicated his prior convictions and the 

dates as this Court determined was acceptable in Meyer. See Meyer, ¶ 24. 

¶33 In State v. Meyer, Meyer was charged and convicted of Aggravated DUI based on 

the same aggravating factors that formed the basis for the charge against Zimmerman (prior 
15

DUI convictions under § 61-8-465(1)(e), MCA). Meyer, ¶ 3. Meyer filed a motion in 

limine seeking to exclude evidence of any prior convictions under M. R. Evid. 403 and 

404, contending that the evidence of his prior convictions was more prejudicial than 

probative. Meyer, ¶ 4. At the trial court, Meyer argued that his prior DUI offenses were 

not an element of the crime of Aggravated DUI, but were relevant only as a “penalty 

provision.” Meyer, ¶ 7. Meyer offered to stipulate to his prior DUI convictions for 

“sentencing purposes” if the jury did not hear about them. Meyer, ¶¶ 16–17. The justice 

court rejected this argument, holding that conviction of a prior DUI is an element of the 

charge of Aggravated DUI, which the State had the burden to prove at trial. Meyer, ¶ 5. 

The district court, conducting appellate review of the justice court’s ruling, agreed, holding 

that “Meyer’s offer to stipulate to the prior convictions at sentencing failed to address the 

issue that the Aggravated DUI statute requires the jury to find that there were prior DUI 

convictions in order to convict Meyer of the charged offense.” Meyer, ¶ 8. 

¶34 We affirmed. While noting that admission of Meyer’s prior DUIs was undoubtedly 

prejudicial, we held that it was not erroneously admitted because “[p]roof of the prior DUI 

was required as an element of the offense of Aggravated DUI. Indeed, the evidence 

contributed to the conviction because it established a statutory element required for a 

conviction.” Meyer, ¶ 24. 

¶35 The State relies exclusively on our holding in Meyer in support of its contention that 

evidence of Zimmerman’s prior DUIs was properly admitted to establish a necessary 

element of the charge of Aggravated DUI. However, Meyer is distinguishable from the 

present case in one critical respect. Although at the trial court, Meyer argued similar 
16

evidentiary bases for exclusion of his prior DUI convictions, they were framed within the 

context of the prior DUI convictions being “relevant only as a ‘penalty provision’ [that] 

did not need to be proven at trial.” Meyer, ¶ 7. Thus, dispositive to our ruling on appeal 

was whether “Meyer’s offer to stipulate to the prior convictions at sentencing failed to 

address the issue that the Aggravated DUI statute requires the jury to find that there were 

prior DUI convictions in order to convict Meyer of the charged offense.” Meyer, ¶ 8 

(emphasis added). We affirmed on that basis. Meyer, ¶ 24.

¶36 Unlike Meyer, Zimmerman did not offer to stipulate to his prior DUI offenses 

merely for sentencing purposes. Zimmerman acknowledged that his prior DUI convictions 

were an element of the crime. However, in order to mitigate the unquestionable prejudice 

of this evidence, Zimmerman offered to stipulate to his prior convictions as an element of 

the offense, to obviate the need to introduce this evidence. Relevant evidence is “evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” M. R. Evid. 401. While there is no question that the fact of Zimmerman’s prior 

convictions was of consequence to determining whether he was guilty of Aggravated DUI, 

the existence of that fact was uncontested. With the fact of the prior DUIs being stipulated 

to, the evidence of the prior DUIs would not tend to make the existence of that fact any 

more or less probable. Zimmerman proposed to the District Court that the jury receive the 

standard DUI instruction, and he would “stipulate to the fact that he has a prior DUI 

conviction under [the Aggravated DUI] statute.” Thus, Zimmerman’s stipulation would 
17

have established this necessary element of Aggravated DUI without incurring the prejudice 

of the jury being advised of the prior convictions.

¶37 In opposing Zimmerman’s offer to stipulate to the predicate offenses, the State 

argued at trial that one of the purposes of the Aggravated DUI statute is to allow the jury 

to use the prior DUI offenses “for other purposes than just to satisfy an element.” 

Specifically, the State argued that one reason that the Legislature made prior offenses an 

element of the crime, was “so that the jury understood that this is a person who is familiar 

with the process and is still doing it.” The District Court agreed, noting that when 

“someone who has engaged in repeat behavior violating the DUI laws . . . it seems like 

everything is on the table under that scenario.” We disagree.

¶38 Under the Aggravated DUI statute, a defendant is subject to increased minimum and 

maximum penalties when he or she is convicted of one of the underlying DUI statutes, and 

there is also present one of several different aggravating factors. Section 61-8-465(1)(a)–

(e), (2)(a)–(b), MCA. Although a prior DUI conviction is indeed one of these aggravating 

factors, other aggravating factors are not dependent at all on the defendant having been 

previously convicted of a DUI. For example, a defendant who has never been charged 

with, much less convicted of, a prior DUI may nevertheless be convicted of Aggravated 

DUI if the defendant’s BAC at the time of the present offense is at or above 0.16%. Section 

61-8-465(1)(a), MCA. A defendant who refuses a breath test under § 61-8-402, MCA, 

may be convicted of Aggravated DUI if he or she had refused a breath test in the previous 

ten years, whether or not he or she had ever been convicted of a prior DUI. Section 

61-8-465(1)(d), MCA. Although these aggravating factors are elements of the offense of 
18

Aggravated DUI that must be proven in order to subject the defendant to the increased 

penalties of this crime, they do not abrogate a defendant’s right to be tried on the merits of 

the charge for which he is being prosecuted, without injecting undue prejudice into the 

proceedings if that prejudice can be avoided. In this case, the prejudice could have been 

avoided by means of Zimmerman’s stipulation. The District Court thus erred when it 

denied Zimmerman’s motion in limine, and allowed the evidence of his prior DUI 

convictions to be presented to the jury.1 

CONCLUSION

¶39 The District Court did not err by denying Zimmerman’s motion to suppress. The 

District Court abused its discretion by granting the State’s motion in limine regarding the 

use of the arresting officer’s other police reports and by denying Zimmerman’s motion in 

 

1 On appeal, Zimmerman also argues that bifurcation would be an appropriate procedure to 

mitigate the prejudice of introducing prior convictions. Zimmerman posits that the trial could be 

bifurcated so that any prejudicial evidence of his prior DUIs would not be presented to, or 

considered by, the jury unless and until the jury first determined that Zimmerman was guilty of

the presently charged DUI. Zimmerman cites other jurisdictions that provide a procedural remedy 

to alleviate the prejudicial affect resulting from the jury hearing of a defendant’s prior DUI 

conviction while on trial for offenses similar to our Aggravated DUI statute. See e.g. Ostlund v. 

State, 51 P.3d 938, 941–42 (Alaska Ct. App. 2002) (“[T]he majority of jurisdictions considering 

this issue have created procedures for the trial court to try the felony [DUI] without the jury being 

informed of the prior convictions during its consideration of the current [DUI] offense.”); Banks 

v. State, 125 S.W.3d 147, 152 (Ark. 2003) (“even though the prior offense is an element that must 

be proven, it is an element properly proven during the sentencing phase of a bifurcated 

proceeding. . . .”) (following Peters v. State, 692 S.W.2d 243, 245 (Ark. 1985)); State v. Wiggins, 

536 P.2d 1116, 1118 (Idaho 1975) (approving use of a bifurcated trial); State v. Rodriguez, 575 

So. 2d 1262, 1266 (Fla. 1991), modified in part by State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 

2000) (requiring a bifurcated trial). Although this may also provide a workable solution,

Zimmerman did not present this as an alternative solution to the District Court. Moreover, because 

we have resolved this issue on the District Court’s erroneous denial of Zimmerman’s motion in 

limine for the reasons discussed above, we need not, and do not, address the merits of this 

argument.
19

limine regarding the introduction into evidence of his prior DUI convictions. We reverse 

and remand to the District Court for further proceedings consistent with this Opinion.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ LAURIE McKINNON

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR

/S/ BETH BAKER