State v. Z. Ellis

                                                                                      11/04/2025


                                         DA 24-0735
                                                                                  Case Number: DA 24-0735


              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        

STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ZACHARY ELLIS,

              Defendant and Appellant.



APPEAL FROM:          District Court of the Eighteenth Judicial District,
                      In and For the County of Gallatin, Cause No. DC-24-27
                      Honorable Rienne H. McElyea, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      Jami Rebsom, Jami Rebsom Law Firm, PLLC, Livingston, Montana

               For Appellee:

                      Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant
                      Attorney General, Helena, Montana

                      Audrey Cromwell, Gallatin County Attorney, Henry Westesen,
                      Deputy County Attorney, Bozeman, Montana


                                                Submitted on Briefs: September 10, 2025

                                                           Decided: November 4, 2025

Filed:

                      __________________________________________
                                       Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    On December 11, 2023, Zachary T. Ellis (Ellis) was convicted of misdemeanor

Driving Under the Influence (DUI), third offense, in violation of § 61-8-1002(1)(a), MCA,

following a bench trial in Gallatin County Justice Court. Prior to trial, the Justice Court

denied Ellis’s motions to suppress evidence which alleged a lack of particularized

suspicion justifying the investigation, an improper search and seizure, and a violation of

Miranda. Ellis appealed the denials of his motions to the Eighteenth Judicial District

Court, Gallatin County. The District Court affirmed the Justice Court and upheld Ellis’s

conviction. Ellis now appeals to this court. We affirm.

¶2    We restate the issues on appeal as follows:

      Issue One: Whether there was particularized suspicion to investigate Ellis for
      driving under the influence.

      Issue Two: Whether there was an unlawful search and seizure.

      Issue Three: Whether there was a custodial interrogation that required a Miranda
      advisement when Ellis made statements to law enforcement.

      Issue Four: Whether this Court can address Ellis’s unpreserved claim that the
      results of his blood test were admitted without a sufficient foundation.

      Issue Five: Whether there was sufficient evidence to convict Ellis of driving under
      the influence.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On March 2, 2023, at around 5:00 p.m., Montana Highway Patrol Trooper Alex

Becken (Trooper Becken) was dispatched to a single vehicle crash on Huffine Lane near

Love Lane in Gallatin County. An individual called 911 after witnessing a black Jeep

Liberty go into a ditch, hit a sign that broke out the back windows, and then drive away.

                                            2
The driver told the caller, “I’m fine, I just passed out, I fell asleep for a second.” A second

caller also saw the Jeep Liberty hit the sign and go into the ditch. Both callers later testified

at trial that on the day of the crash road conditions were dry.

¶4     Dispatch provided Trooper Becken with the description of the vehicle and the

vehicle’s license plate number. Trooper Becken began looking for the Jeep in the reported

crash area and observed two traffic signs down and tire marks leading into a nearby ditch.

The license plate was registered to Ellis’s wife, so Trooper Becken proceeded to Ellis’s

address.

¶5     Sergeant Brian Taylor (Sergeant Taylor) of the Gallatin County Sheriff’s Office was

also dispatched to the accident and learned the direction the Jeep was headed. He drove

towards the Ellis residence located in a subdivision near Belgrade, Montana. Sergeant

Taylor observed a male walking away from the Jeep, which was parked in the street, and

up the driveway. Trooper Becken arrived on the scene around the same time. The Jeep at

the residence matched the plate number provided by dispatch.

¶6     The Jeep had damage to the front bumper and a broken window on the rear driver’s

side. The male identified himself as Zachary Ellis. Ellis had a dazed expression, excessive

mucus on his sleeve, and watery, bloodshot eyes. When asked by Sergeant Taylor where

he was coming from, Ellis disclosed “[The hardware store] . . . I was on Huffine.” Trooper

Becken asked Ellis what happened to the front of the Jeep and Ellis responded, “I passed

out.” Soon after, Sergeant Taylor asked Ellis what he purchased at the hardware store and




                                               3
Ellis responded that he bought “some duster.” 1 Sergeant Taylor further inquired because

he saw “a bunch of snot” on Ellis’s shirt. He then asked Ellis whether he had sniffed the

duster. “I did try that. And . . . that is not good.” Sergeant Taylor asked, “[Did you] try

that while you were driving?” Ellis responded, “apparently.” After stepping away,

Trooper Becken returned to Sergeant Taylor and Ellis when Ellis stated, “that’s probably

what made me pass out.” Trooper Becken subsequently administered Standardized Field

Sobriety Tests, (SFSTs).

¶7     Trooper Becken had Ellis perform the Horizontal Gaze Nystagmus (HGN) test,

walk and turn test, the one leg stand test, and the Romberg test. Ellis showed clues of

impairment on a majority of the tests. Additionally, Trooper Becken observed Ellis had

heavy eyelids and body tremors during testing.

¶8     After officers asked if Ellis still had the can of Dust-Off, Ellis provided the can he

consumed. Ellis had placed the can of Dust-Off in the back seat of a sedan parked in his

driveway. While holding the can, Trooper Brecken noted the Dust-Off can was nine-tenths

empty. Ellis confirmed he was the one driving the Jeep and that he had not consumed any

Dust-Off or alcohol after the crash.

¶9     Ellis provided a preliminary breath sample that indicated he had no alcohol in his

system. Based on his observations and conversation with Ellis, Trooper Becken arrested




1
 Duster, generally used for dusting off electronics, can result in impairment if ingested. Possible
impairment includes confusion, slurred speech, and unconsciousness. At trial, both Sergeant
Taylor and Trooper Becken testified about the impact of ingesting Dust-Off. Dust-Off contains
difluoroethane (DFE), which typically produces a short high before the person who huffed it passes
out.
                                                4
Ellis for DUI. Ellis consented to providing a blood sample and completed a blood draw at

Bozeman Health Deaconess Hospital with Trooper Becken in attendance. Ellis was

subsequently booked into the Gallatin County Detention Center. The toxicology report

detected DFE in Ellis’s system.

¶10    On May 17, 2023, Ellis filed motions to suppress evidence asserting a lack of

particularized suspicion, an unlawful search and seizure, and a violation of Miranda. On

August 14, 2023, the Justice Court denied his motions to suppress. A bench trial was held

on December 11, 2023. In its case-in-chief, the State called forensic toxicologist Scott

Larson (Larson). The State moved to admit Ellis’s toxicology report through Larson and

Ellis objected on grounds of foundation. The Justice Court overruled the objection,

admitted the toxicology report, and found Ellis guilty of DUI on the same day. Ellis was

sentenced on December 20, 2023, to one year in jail with all but forty-five days suspended.

¶11    Ellis filed a notice of appeal in the Gallatin County District Court on January 12,

2024. The District Court affirmed his conviction and the denial of his motions to suppress

on October 3, 2024. It reasoned that law enforcement had ample particularized suspicion

to investigate the accident and the investigation developed into particularized suspicion for

a DUI. The District Court concluded that Ellis had no reasonable expectation of privacy

in his driveway which was accessible by the public, and that Ellis had voluntarily consented

to giving the can of Dust-Off to law enforcement. The court determined that there was no

custodial interrogation of Ellis that required Miranda warnings be given.

¶12    On appeal to this Court, Ellis argues the Justice Court and District Court erred by

denying his motions to suppress. He seeks a reversal of his conviction and a remand of his

                                             5
case without that evidence. Ellis also argues that the State failed to meet its burden of proof

at trial, therefore he should be acquitted of the DUI charge.

                               STANDARDS OF REVIEW

¶13    On Ellis’s appeal from the Justice Court, the District Court functioned as an

intermediate appellate court. See §§ 3-5-303 and 3-6-110, MCA; City of Bozeman v.

Cantu, 

, 

, 

. In his appeal to this Court, we

review the case as if the appeal originally had been filed in this Court. Cantu, ¶ 10 (citation

omitted). “We examine the record independently of the district court’s decision, applying

the appropriate standard of review.” Cantu, ¶ 10 (citation omitted).

¶14    “We review a district court’s denial of a motion to suppress to determine whether

its findings of fact are clearly erroneous and whether its interpretation and application of

the law is correct.” State v. Kenfield, 

, 

, 

(citing State v. Wheeler, 

, 

, 

). If a review of

the record reveals a mistake has been made, the effect of the evidence has been

misapprehended, or there is not substantial evidence to support findings of fact, the findings

are clearly erroneous. Kenfield, ¶ 15 (citing Wheeler, ¶ 12).

¶15    Whether there is sufficient evidence to convict a defendant is reviewed de novo.

State v. Trujillo, 

, 

, 

 (citing State v. Swann,

, 

, 

). This Court reviews the evidence in a

light most favorable to the prosecution when determining the sufficiency of the evidence.

State v. Weitzel, 

, 

, 

 (citing State v. Weigand,

, 

, 

). The Court must find that “any rational

                                              6
trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” State v. Price, 

, 

, 

 (citing State v.

Merrick, 

, 

, 

).

                                     DISCUSSION

¶16   Issue One: Whether there was particularized suspicion to investigate Ellis for driving
      under the influence.

¶17   Ellis contends that law enforcement unlawfully prolonged the stop with no evidence

or articulable facts to support Ellis was impaired by any substance. The State argues that

law enforcement had particularized suspicion based on Ellis’s erratic driving and one-car

accident, and from Ellis’s behavior once they encountered him.

¶18   The United States Constitution and the Montana Constitution protect citizens from

unreasonable searches and seizures. U.S. Const. amend. IV; Mont. Const. art. II, § 11.

Government searches and seizures typically must “occur pursuant to a judicial warrant

issued on probable cause.” City of Missoula v. Kroschel, 

, 

, 

; U.S. Const. amend. IV; Mont. Const. art. II, § 11. An exception to

the warrant requirement of the Fourth Amendment is particularized suspicion. State v.

Roberts, 

, 

, 

.

¶19   Officers may stop any person that is observed in circumstances that create a

particularized suspicion that the person has committed an offense. § 46-5-401(1), MCA.

The State must satisfy two elements to show particularized suspicion: “(1) objective data

from which an experienced officer can make certain inferences; and (2) a resulting

suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or


                                            7
was a witness to criminal activity.” State v. Gopher, 

, 

 (1981). “Particularized suspicion requires objective data from which an experienced

police officer can make certain inferences and a resulting suspicion that the occupant of

the vehicle is or has been engaged in wrongdoing.” State v. Estes, 

, 

, 

 (citing State v. Martinez, 

, 

, 

).

¶20    A stop may not last longer than necessary to effectuate the purpose of the stop.

§ 46-5-403, MCA. “An officer need not be certain, or even correct, that a person is engaged

in criminal activity.” State v. Harning, 

, 

, 

(citing State v. Wilson, 

, 

, 

). Law enforcement

may expand the “scope of an investigative stop beyond its initial purpose” based on

additional information acquired during the stop. State v. Stanley, 

, 

, 

 (citations omitted). Particularized suspicion for a stop can serve

as particularized suspicion for administering field sobriety tests. Hulse v. State, 

, 

, 

. Particularized suspicion is assessed under the totality

of the circumstances. State v. Zietlow, 

, 

, 

(citing State v. Gill, 

, 

, 

).

¶21    Here, law enforcement was dispatched near Huffine Lane to investigate a single

vehicle accident after Ellis crashed into street signs, went into a ditch, and then fled the

scene. Dispatch received calls from at least two drivers who later testified at the bench

trial held in Justice Court. Once dispatched, Trooper Becken observed damage to street

signs and tire marks in the ditch near Huffine Lane. Trooper Becken and Gallatin County

                                             8
Sheriff’s Deputies responded to the Ellis home where Trooper Becken observed damage

to the front bumper and a broken-out window on the rear driver’s side of the Jeep. Ellis

had watery, bloodshot eyes and was dazed and confused. Upon initial inquiry from law

enforcement, Ellis indicated that he had purchased Dust-Off and “apparently” ingested it.

Officers had particularized suspicion for the stop because of Ellis’s erratic driving.

See Hulse, ¶ 39 (driving erratically can serve as the particularized suspicion for the officer

to stop the driver and administer field sobriety tests). Ellis disclosed to officers that he

drove on Huffine Lane, which confirmed the tips from callers to 911 about an erratic driver

in a black Jeep near Huffine Lane. Trooper Becken then observed the damage to street

signs near Huffine Lane and to the Jeep at Ellis’s residence. Ellis told officers that he

passed out and admitted to sniffing the duster. Ellis provided the objective data that led

officers to believe he had been involved in committing a crime. Gopher, 

,

. As this Court identified in Hulse, “[t]he case at bar is a good example

of . . . an escalating situation.” Hulse, ¶ 41.

¶22    Ellis quotes Hulse:

       [I]f an officer only observed an individual driving with a broken taillight and
       after making his initial stop he did not observe any signs of intoxication, he
       would not have particularized suspicion that the driver was driving under the
       influence, and, therefore, would be prohibited from administering field
       sobriety tests.

Hulse, ¶ 40. Ellis’s point, however, is misplaced. Ellis incorrectly asserts that officers did

not see any signs of impairment, therefore prolonging the stop without any particularized

suspicion.    At trial, Trooper Becken reasoned that based on the totality of the

circumstances, he had particularized suspicion because the crash occurred on dry road

                                                  9
conditions with no explanation for it; a witness observed Ellis passed out; Ellis fled the

scene of the crash; Trooper Becken’s own observations of Ellis; the amount of mucus Ellis

had on his sleeve; and Ellis admitted that he consumed the Dust-Off. We conclude officers

lawfully expanded the scope of the investigative stop based on information acquired during

the stop.   The District Court correctly denied Ellis’s motion to dismiss for lack of

particularized suspicion.

¶23    Issue Two: Whether there was an unlawful search and seizure.

¶24    Montana’s Constitution provides its citizens with broader privacy protections than

its federal counterpart. State v. Tackitt, 

, 

, 

(citing State v. Elison, 

, 

, 

). “As a threshold

matter of law, the Fourth Amendment and Mont. Const. art. II, § 11, protection against

unreasonable searches and seizures applies only if and when a government ‘search’ or

‘seizure’ actually occurs.” Stanley, ¶ 19. This Court determines whether an unlawful

search or seizure occurred “by analyzing three factors: 1) whether the person challenging

the state’s action has an actual subjective expectation of privacy; 2) whether society is

willing to recognize that subjective expectation as objectively reasonable; and 3) the nature

of the state’s intrusion.” State v. Goetz, 

, 

, 

.

A search does not occur where there is no objectively reasonable expectation of privacy.

Goetz, ¶ 25 (citing State v. Hamilton, 

, 

, 

; State

v. Scheetz, 

, 

 (1997)).

       [I]n Montana a person may have an expectation of privacy in an area of land
       that is beyond the curtilage which the society of this State is willing to
       recognize as reasonable, and that where that expectation is evidenced by

                                             10
       fencing, “No Trespassing,” or similar signs, or “by some other means
       [which] indicate[s] unmistakably that entry is not permitted.”

¶25    State v. Bullock, 

, 

 (1995) (quoting People v.

Scott, 

, 1338 (N.Y. 1992)). “Society’s recognition of the expectation of

privacy as reasonable hinges on the unique facts of each situation.” City of Whitefish v.

Large, 

, 

, 

.

¶26    Ellis argues that officers conducted an illegal search and seizure by seizing Ellis in

his driveway and searching his vehicles without a search warrant. The State contends that

Ellis had no reasonable expectation of privacy and officers did not conduct an unlawful

search because Ellis personally provided the Dust-Off to officers.

¶27    In State v. Smith, 

, 

, 

, the defendant argued

that fencing around his property and the length of his driveway was evidence of an actual

expectation of privacy. Smith, ¶ 19. We concluded the fence and length of the driveway

did not result in a reasonable expectation because the fence had a gate that was kept open

and there was nothing else to indicate “that entry to the driveway was not permitted.”

Smith, ¶ 19. However, when law enforcement arrived, Smith told the Deputy that he was

trespassing and “that he needed to leave the property if he did not have a warrant.” Smith,

¶ 20. This Court held that once the defendant told the Deputy he was trespassing, he was

asserting his right to privacy and had a reasonable expectation of privacy in his driveway.

Smith, ¶ 29.

¶28    In State v. Lanchantin, 

, 

, 

, law enforcement

conducted a DUI investigation in the driveway where the defendant was staying.


                                             11
Lanchantin, ¶ 22. The driveway could not be seen by the public and was accessible by a

private easement road, marked by a “No Trespassing” sign. Lanchantin, ¶ 22. This Court

held that there was an actual expectation of privacy. Lanchantin, ¶ 22.

¶29    Here, Ellis approached law enforcement and spoke with Sergeant Taylor and

Trooper Becken at the edge of his driveway. There were no signs, such as a “No

Trespassing” sign, that indicated entry into the driveway was not permitted. Further, Ellis

did not ask Sergeant Taylor or Trooper Becken to leave. Ellis manifested no reasonable

expectation of privacy in his driveway. Here, the analysis fails on the first prong because

there was no reasonable expectation of privacy. Without a reasonable expectation of

privacy, there is no search.

¶30    Moreover, Ellis did not have a reasonable expectation of privacy in the exterior of

his Jeep parked on a public roadway. In Large, this Court determined that the defendant

did not have an expectation of privacy over her carport at her apartment building because

the public could access it. Large, ¶ 18. In State v. Ellinger, 

, 

(1986), this Court found the arrest of the defendant was valid because the “[defendant] had

a reduced expectation of privacy when he stepped outside of his house.” Ellinger, 

, 

. Here, Ellis did not have a reasonable expectation of privacy

of the exterior of the Jeep parked on the street. Ellis parked the Jeep on a public street,

where anyone could have taken photos of the vehicle as law enforcement did. Because

there was no reasonable expectation of privacy, there was no search of the Jeep.

¶31    Ellis’s next contention mischaracterizes the conversation between him and the

officers. Ellis asserts that officers demanded Ellis tell them where the Dust-Off was located

                                             12
and entered his vehicle to seize the Dust-Off. However, the evidence belies Ellis’s

contention. Trooper Becken asked if Ellis still had the can of Dust-Off and Ellis responded,

“Yeah, I think I put it in that car right there.” Sergeant Taylor subsequently looked into

the window of the sedan parked in the driveway but did not enter the sedan. We have

determined that Ellis did not have an “actual expectation of privacy” in his driveway,

therefore officers were lawfully on Ellis’s driveway. Ellis then retrieved the can and

handed it to Trooper Becken. There was no search of the sedan and there was no seizure

of the can of Dust-Off. The District Court correctly denied Ellis’s motion to dismiss for

an unlawful search and seizure.

¶32    Issue Three: Whether there was a custodial interrogation that required a Miranda
       advisement when Ellis made statements to law enforcement.

¶33    Both the United States and Montana Constitutions provide citizens with a right

against self-incrimination. U.S. Const. amend. V; Mont. Const. art. II, § 25.

       [A] prosecutor may not use statements that stem from the custodial
       interrogation of a defendant unless the defendant has been warned, prior to
       questioning, that he has the right to remain silent, to have an attorney present,
       and that any statements he makes may be used as evidence against him.

State v. Labbe, 

, 

, 

 (citing Miranda v. Arizona,

, 

 (1966)). There must be a custodial interrogation

before Miranda becomes applicable. To determine whether a “custodial interrogation”

occurred requires a two-step inquiry: “(1) whether the individual was ‘in custody’ and

(2) whether the individual was subject to an ‘interrogation.’” State v. Maile, 

, 

, 

 (quoting State v. Munson, 

, 

, 

).

                                              13
¶34    This Court has held that “public[] and temporary investigatory stops, to confirm or

dispel suspicions, are not generally custodial interrogations.” Maile, ¶ 15 (quoting State v.

Peters, 

, 

, 

).                 A defendant is “in

custody . . . if they have been deprived of their freedom of action in any significant way or

their freedom of action has been curtailed to a degree associated with a formal arrest.”

Elison, ¶ 27 (quoting State v. Dawson, 

, 

, 

).

Whether a “custodial interrogation” occurred is made on a case-by-case basis. State v.

Staat, 

, 

 (1991).

¶35    This Court has not defined a time parameter for roadside investigatory stops. State

v. Larson, 

, 

, 

. Where questions remain

confined to the context of the escalating suspicions, typically Miranda is not implicated.

State v. Bailey, 

, 

, 

. Law enforcement is not

required to issue a Miranda advisement when simply investigating. See State v. Hurlbert,

, 

, 

; State v. Allen, 

,

, 

. In Hurlbert, we concluded that during an investigation where

the defendant was not in custody, he was therefore “not entitled to a Miranda warning prior

to being asked for consent to search the vehicle.” Hurlbert, ¶ 34. In Allen, this Court held

that the officer was not required to give Miranda warnings to the defendant after an

investigation into a license plate violation expanded into a DUI investigation. Allen,

¶¶ 12-14. “Allen was not entitled to a Miranda warning following his traffic stop and prior

to his arrest for driving under the influence of alcohol.” Allen, ¶ 14.



                                             14
¶36    Six factors are considered to determine whether a “custodial interrogation”

occurred: “(1) place of the interrogation; (2) time of the interrogation; (3) persons present

during the interrogation; (4) whether Miranda warnings were gratuitously given; (5) the

length and mood of the interrogation; and (6) whether or not the suspect was arrested

following the interrogation.” Labbe, ¶ 17 (citations omitted).

¶37    Here, Ellis’s questioning took place at the edge of his driveway, visible to the public.

Ellis’s questioning occurred in the early evening when it was still light outside. Sergeant

Taylor and Trooper Becken were present during questioning, with Ellis’s wife nearby.

Questioning and field sobriety tests lasted just over twenty minutes. Miranda warnings

were not given. The questioning resembled a conversation more than an interrogation;

Ellis appeared relaxed and calm. When we apply the aforementioned factors, they do not

lend themselves to a conclusion that Ellis was either in custody or interrogated.

¶38    Ellis argues that, “[i]nterrogation which occurs in the suspect’s home is subject to

Miranda where it occurs in a coercive environment in which the suspect’s freedom of

action has been significantly restricted.” Munson, ¶ 28 (quotation omitted). Munson,

however, can be distinguished from the instant case. In Munson, when the officer asked to

enter the defendant’s apartment and was told it was not a good time, he replied, “I need to

visit with ya’ right now.” Munson, ¶ 30. Munson declined to consent to a search of the

apartment and her body, but officers persisted with the interview. Munson, ¶ 30. Munson

also refuted that there were drugs present in the apartment. Munson, ¶ 30. This Court

concluded that the officers created a custodial atmosphere. Munson, ¶ 34.



                                              15
¶39    When Sergeant Taylor arrived at Ellis’s home, Ellis was near his garage and greeted

Sergeant Taylor at the edge of the driveway. Sergeant Taylor asked him, “You wanna hang

out for me for a second?” Ellis replied, “Yeah.” Shortly after, when asked by officers,

Ellis admitted to officers that he bought duster and huffed it. Trooper Becken asked how

much of the Dust-Off he used, Ellis told officers which car the can was in and then retrieved

it for law enforcement.      Unlike Munson, here, officers did not create a coercive

environment. Ellis did not indicate that he was unavailable to speak with law enforcement

or wanted them to leave. Instead, Ellis acquiesced to their questions. Ellis answered

affirmatively to questions posed by law enforcement, giving no reason for the officers to

cease questioning. Further, Ellis’s freedom of movement was never restricted during

questioning and Ellis provides no support that it was. As recognized by both the Justice

Court and District Court, Ellis was relaxed enough to lean against another vehicle in his

driveway during the encounter. Officers did not create a custodial atmosphere.

¶40    In Ellinger, as here, the defendant was suspected of DUI and questioned at his home.

Ellinger, 

, 

. The defendant argued that his statements

were inadmissible because he was not given a Miranda warning. Ellinger, 

, 

. We held:

       Nowhere in the record did defendant indicate that he was unable to withdraw
       from the conversation, withdraw from the sobriety tests, and retreat into his
       house. Defendant had multiple opportunities to stop the interrogation and
       testing, yet freely consented to further proceeding. Therefore, defendant’s
       Miranda rights did not engage until he had been placed in custody.




                                             16
Ellinger, 

, 

. Ellis similarly was not in custody. Ellis

could have withdrawn from questioning at any time. The District Court correctly denied

Ellis’s motion to dismiss for an alleged violation of Miranda.

¶41 Issue Four: Whether this Court can address Ellis’s unpreserved claim that the
results of his blood test were admitted without a sufficient foundation.

¶42    Generally, the Court “does not consider arguments made for the first time on

appeal.” State v. Homer, 

, 

, 

 (citing State v.

Lotter, 

, 

, 

). “[A] claimed error must have

been preserved at the first-level appellate court in order for this Court to consider the issue.”

State v. Akers, 

, 

, 

.

¶43    Ellis objected to admitting the toxicology report during the forensic toxicologist’s

testimony on grounds of foundation at his trial in Justice Court. Ellis argued that a chain

of custody issue existed because the State did not call the phlebotomist who drew his blood

to testify. The Justice Court overruled Ellis’s objection because Trooper Becken observed

the blood draw. Ellis did not appeal this issue to the District Court. The State asserts that

Ellis waived his right to contest admitting the report by failing to appeal the issue to the

District Court. “[F]ailure to raise an appealable issue, whether preserved in the trial court

or not, on intermediate appeal from a lower court of record generally constitutes an implied

waiver of the issue for ultimate appeal to this Court.” City of Bozeman v. McCarthy, 

, 

, 

. We agree with the State that Ellis did not

properly preserve the issue for appeal to this Court. Accordingly, this Court declines to

address the issue.


                                               17
¶44    Issue Five: Whether there was sufficient evidence to convict Ellis of driving under
       the influence.

¶45    To prove a defendant guilty of a DUI, the State must prove beyond a reasonable

doubt that the defendant was in actual physical control of a vehicle on roads open to the

public while under the influence of alcohol or any drug. § 61-8-1002(1)(a), MCA. DFE

is considered a “drug” for purposes of a violation of § [61-8-1002(1)(a)], MCA. State v.

Pinder, 

, 

, 

.

¶46    Ellis continues to argue that he did not show any signs of impairment during the

stop. Ellis further argues that the State’s lab report did not show any level of DFE, resulting

in the State failing to meet its burden of proof. The District Court did not address this

issue, determining it to be duplicative. Though this Court will address this issue, Ellis’s

contentions are circularly fatal.     The State argues, and this Court agrees, that the

impairment was evidenced by Ellis passing out while driving after huffing the Dust-Off.

¶47    Ellis confirmed to officers that he was the driver of the Jeep that had crashed on

Huffine Lane. Ellis also confirmed to officers that he huffed Dust-Off he purchased at the

hardware store, while driving, and then passed out. The forensic toxicologist testified that

DFE was detected in Ellis’s blood sample. Though Ellis displayed a mediocre performance

of the SFSTs, the Justice Court heard testimony that DFE is metabolized quicker than

alcohol and that signs of impairment do not last as long as someone impaired by alcohol.

Here, there was sufficient evidence to find Ellis guilty of DUI. All elements of DUI are

satisfied.




                                              18
                                       CONCLUSION

¶48    The District Court correctly affirmed the Justice Court’s denial of Ellis’s motions

to suppress. Further, this Court concludes there was sufficient evidence to convict Ellis of

DUI. Ellis’s conviction is affirmed.


                                                 /S/ LAURIE McKINNON


We Concur:

/S/ CORY J. SWANSON
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ JIM RICE




                                            19