“Similar Means Similar”: The Majority-Outcome Test for Out-of-State DUI Enhancements after State v. Lapointe

Introduction

In State v. C. Lapointe, 2025 MT 124, the Supreme Court of Montana confronted a recurring but unsettled question in DUI sentencing: when may convictions obtained under another State’s driving-under-the-influence (“DUI”) statute be used to elevate a new Montana DUI to a felony? Christopher Paul Lapointe, with six prior California DUI convictions, argued that California Vehicle Code § 23152 is not “sufficiently similar” to Montana’s former § 61-8-401(1)(a), MCA (2019), because the California statute applies everywhere a car can be driven, whereas Montana’s statute is limited to “ways of this state open to the public.”

The Court rejected Lapointe’s challenge, affirmed his felony enhancement, and—most significantly—clarified the standard for cross-jurisdictional DUI comparisons. Drawing a sharp contrast with two earlier outliers (McNally and Cleary), the Court articulated what this commentary calls the “majority-outcome test”: a foreign statute is “similar” if the vast majority of prosecutions under it would have resulted in convictions under Montana law, even if the wording or coverage is not identical.

Summary of the Judgment

• Issue Presented: Whether California’s DUI statute (§ 23152) is “sufficiently similar” to Montana’s DUI statutes to support a felony-DUI enhancement under § 61-8-731(1), MCA (2019).
• Holding: Yes. The statutes are sufficiently similar in both intoxication definition and place-of-offense elements; prior California convictions therefore count.
• Disposition: District court’s denial of the motion to dismiss the felony enhancement affirmed; Lapointe’s 49-month sentence (with three years suspended) stands.
• Key Legal Principle Adopted: “Similar means similar, not exactly the same.” The test focuses on whether “a substantial number” of convictions under the foreign statute would also be convictions under Montana law.

Analysis

a. Precedents Cited and Their Influence

• State v. Polaski, 2005 MT 13 – Earlier Montana decision already finding § 23152 “similar” as to intoxication level. Provided direct precedent; Court followed it as to intoxication but faced a new argument about place-of-offense.
• State v. McNally, 2002 MT 160 – Held Colorado’s “DWAI” statute not similar because it criminalised impairment “to the slightest degree,” capturing conduct not criminal in Montana. Presented an example where dissimilarity defeated enhancement; Court distinguished Lapointe on that basis.
• State v. Cleary, 2012 MT 113 – South Dakota’s judicial-clemency mechanism rendered its DUI “not a conviction” for enhancement. Demonstrated that procedural dissimilarity can also defeat similarity.
• State v. Olson (2017), State v. Pankhurst (2022) – Confirmed that minor linguistic differences (“loss of normal faculties,” “lack of clearness of intellect”) do not break similarity; helped formulate the majority-outcome test.
• State v. Krebs, 2016 MT 288 – Reiterated State’s burden to prove similarity; cited to set evidentiary allocation.

b. The Court’s Legal Reasoning

1. Statutory Comparison Framework
   • The Court read § 61-8-734(1)(a), MCA, to require only “similarity,” not identity.
   • It compared operative elements: intoxication standard & place-of-offense.
2. Intoxication Element
   • Already settled by Polaski; both statutes prohibit driving with ≥0.08 BAC or while “under the influence.” Lapointe conceded this portion.
3. Place-of-Offense Element
   • Montana: “ways of this state open to the public” (excludes private property with limited access).
   • California: “upon the highways and elsewhere throughout the State” (includes private property).
   • Despite broader reach, the Court stressed that most California DUIs occur on public roads—so overlap is large.
   • A single example (People v. Malvitz) of a private-property prosecution did not defeat similarity, echoing Pankhurst.
4. Majority-Outcome Test Articulated
   • If “the vast majority of cases decided under [the foreign] statute would have resulted in convictions under Montana law,” the statute is similar.
   • Rejects a hyper-technical, element-by-element identity test.
5. Policy and Absurd-Result Avoidance (Concurring Opinion)
   • Chief Justice Swanson highlighted that Montana itself stacks numerous DUI-related offenses that lack the “public way” language. Declaring California convictions ineligible would create internal inconsistency.

c. Potential Impact

• Broader Pool of Predicate Convictions: Prosecutors may rely on out-of-state DUI convictions with less fear that minor textual differences will render them unusable.
• Shift in Defense Strategy: Defense counsel must now focus on specific factual circumstances (e.g., prior conviction on wholly private property) rather than on facial statutory differences.
• Guidance for Trial Courts: Emphasises evidentiary burden on the State but allows pragmatic judicial notice that most DUIs occur on public roads; formal empirical studies are unnecessary absent contrary proof.
• Legislative Harmonisation: Encourages States to review DUI statutes for reciprocal recognition; Montana’s overhaul (§§ 61-8-1001 ff.) already simplifies language, making future similarity findings easier.
• Extension Beyond DUI: The majority-outcome test could influence “sufficiently similar” analyses in other recidivist contexts (e.g., habitual offender, violent-felony enhancements, sex-offender registry triggers).

Complex Concepts Simplified

• Felony Enhancement / “Stacking” – Elevating a misdemeanor DUI to a felony when the defendant has a threshold number of prior qualifying convictions.
• “Ways of this state open to the public” – Roads, streets, and areas accessible to the general public; excludes gated ranch roads, private driveways with restricted access, etc.
• Actual Physical Control – One can be convicted without “driving”; sitting behind the wheel with the keys, engine running, can suffice.
• Judicial Clemency – A statutory mechanism (South Dakota example) allowing courts to dismiss or expunge convictions after compliance; can negate “conviction” status for enhancement.
• Burdens of Proof in Similarity Hearings – The State must produce certified records and prove similarity; once a facial match is shown, the burden shifts to the defendant to rebut with specific facts.

Conclusion

State v. Lapointe cements a pragmatic, outcome-oriented approach to cross-jurisdictional DUI enhancements in Montana. By declaring that “similar means similar, not exactly the same,” the Court dismisses hyper-technical comparisons and focuses on real-world overlap in prosecutable conduct. The ruling harmonises prior case law, provides a clear roadmap for trial courts, and is likely to be persuasive in other recidivist contexts where statutory similarity is disputed.

The decision underscores a broader legal trend: when legislatures criminalise substantially the same dangerous behavior, procedural or geographic nuances should not impede the just sentencing of repeat offenders. Future litigants must therefore marshal concrete evidence (e.g., that a prior conviction arose from conduct not criminal in Montana) rather than rely on textual hair-splitting. In the DUI realm, at least, the majority-outcome test now governs.