Mandatory Felony-DUI Fines After Cole: Fine Must Be Imposed, Then Ability-to-Pay Evaluated with Possible Suspension

1. Introduction

State v. C. Spang addresses how Montana courts must handle mandatory minimum felony-DUI fines when the defendant’s ability to pay has not been evaluated. Cleve Ernest Spang pleaded guilty to felony DUI (fourth or subsequent) under § 61-8-401, MCA (2019), after a traffic stop in Yellowstone County. The plea agreement and sentencing recommendation included a $5,000 fine—treated as mandatory under § 61-8-731, MCA (2019).

On appeal, Spang challenged only the fine. The case presented two issues: (1) whether agreeing to the fine in a plea agreement waived appellate review; and (2) whether the District Court had authority to impose the $5,000 fine, given intervening Montana Supreme Court decisions about the constitutionality and operation of § 61-8-731, MCA (2019).

2. Summary of the Opinion

The Court affirmed the legality of imposing the $5,000 felony-DUI fine but remanded because the District Court imposed the fine without making findings on Spang’s ability to pay. Applying the Court’s then-recent decision in State v. Cole, the Court held that mandatory DUI fine statutes can be harmonized with Montana’s general ability-to-pay statute by requiring the sentencing court to: (i) impose the mandatory fine within the statutory range; (ii) evaluate ability to pay under § 46-18-231(3), MCA (2019); and (iii) if the defendant cannot pay the full amount, suspend the fine to the extent of inability under § 46-18-201(2), MCA (2019).

The Court also concluded Spang did not waive appellate review of the fine merely by agreeing to it in his plea agreement, because the mandatory nature and legality of the fine framework had been called into question by subsequent rulings.

3. Analysis

A. Precedents Cited

1) Sentencing legality and standards of review

• State v. Cole, 2026 MT 52, ¶ 5, 427 Mont. 64, 585 P.3d 955: Cited for the baseline rule that criminal sentences are reviewed for legality. Substantively, Cole is the controlling authority that overruled Gibbons in part and supplied the harmonization framework used to resolve Spang’s challenge.
• State v. Yeaton, 2021 MT 312, ¶ 8, 406 Mont. 465, 500 P.3d 583 (quoting State v. Ingram, 2020 MT 327, ¶ 8, 402 Mont. 374, 478 P.3d 799): Cited for the three-part legality inquiry: whether the sentence is within statutory parameters, authorized by statute, and whether affirmative mandates of sentencing statutes were followed. That framing matters here because the fine amount itself fit the statutory range, but the sentencing process failed to follow the affirmative mandate to consider ability to pay.
• State v. Horn, 2026 MT 79, ¶ 6, 427 Mont. 402, ___ P.3d ___ (citing State v. Dowd, 2023 MT 170, ¶ 6, 413 Mont. 245, 535 P.3d 645): Cited for de novo review of whether the district court adhered to the sentencing statute. The Court later relies on Horn, ¶ 11, to treat the two relevant subsections of § 61-8-731 as “indistinguishable for purposes of analysis under Cole.”
• State v. Ber Lee Yang, 2019 MT 266, ¶ 8, 397 Mont. 486, 452 P.3d 897: Cited for de novo review of claims that a sentence violates a constitutional provision. While the majority resolves the operative question through statutory harmonization under Cole, the dissent foregrounds constitutional concerns as triggered “at the moment of imposition.”

2) Plea agreements and waiver/illegality

• State v. Trombley, 2026 MT 77, ¶ 8, 427 Mont. 384 ___ P.3d ___ (citing State v. Arellano, 2024 MT 108, ¶ 12, 416 Mont. 406, 549 P.3d 428): Cited for the principle that a defendant cannot agree to a sentence that is illegal at the time of the plea agreement—supporting the Court’s conclusion that Spang did not waive review simply by signing the plea. Here, the Court emphasizes that, when Spang signed, the fine was understood as mandatory; subsequent decisions changed the legal landscape enough that appellate review remained available.

3) Mandatory DUI fines: the evolution from Mingus to Gibbons to Cole

• State v. Mingus, 2004 MT 24, ¶ 15, 319 Mont. 349, 84 P.3d 658, overruled in part by Gibbons: Cited to show the former rule: when a fine is statutorily mandated, courts had “no discretion” whether to impose it, “irrespective of the defendant’s ability to pay.” This is the pre-Gibbons baseline that treated mandatory DUI fines as immune from ability-to-pay screening at sentencing.
• State v. Gibbons, 2024 MT 63, 416 Mont. 1, 545 P.3d 686, overruled in part by Cole: Central to Spang’s argument. Spang relied on Gibbons for the claim that § 61-8-731(3), MCA (2019), was facially unconstitutional. The majority, however, treats Gibbons as superseded in the relevant respect because Cole overruled it “to the extent it held § 61-8-731(3), MCA (2019), was facially unconstitutional.”
• State v. Cole, 2026 MT 52, ¶¶ 22-29: The controlling precedent. Cole provides the harmonization logic: courts can comply with mandatory DUI fine statutes and the ability-to-pay requirement by imposing the fine and then suspending the portion the defendant cannot pay under § 46-18-201(2), MCA (2019).
• State v. Horn, 2026 MT 79, ¶ 11: Used to treat differences between § 61-8-731(1)(a)(iii), MCA (2019), and § 61-8-731(3), MCA (2019), as not changing the Cole analysis for ability-to-pay procedures.

4) Statutory interpretation signals and sentencing discretion

• State v. Vaska, 2025 MT 168, ¶ 36, 423 Mont. 194, 573 P.3d 327 (Swanson, C.J., dissenting): Cited here for the proposition that the conjunction “or” can grant sentencing discretion (fine or custody or both). The Court uses this to explain that § 61-8-731(3), MCA (2019), may permit a sentencing court to forgo a fine altogether—unlike § 61-8-731(1)(a), MCA (2019), which uses “and” to require both custody and the fine.

5) Ability-to-pay findings as fact questions

• State v. Fisher, 2021 MT 255, ¶ 25, 405 Mont. 498, 496 P.3d 561: Cited to classify ability-to-pay as a fact question for the district court, reviewed for clear error on appeal. This supports the remand: the Supreme Court will not make the initial ability-to-pay determination.

6) The separate writing: limits on “suspend-after-impose”

• State v. Cole, 2026 MT 52 (Bidegaray, J., dissenting); State v. Trombley, 2026 MT 77 (Gustafson, McKinnon, and Bidegaray, JJ., concurring in part and dissenting in part); City of Whitefish v. Curran, 2026 MT 65, 427 Mont. 284, 586 P.3d 836 (Gustafson, McKinnon, and Bidegaray, JJ., dissenting): The concurring/dissenting Justices invoke these writings to argue the constitutional/statutory problem arises upon imposition of an unaffordable fine, and suspension after pronouncement cannot cure it.
• State v. Lenihan, 184 Mont. 338, 342, 602 P.2d 997, 1000 (1979); State v. Plouffe, 2014 MT 183, ¶ 27, 375 Mont. 429, 329 P.3d 1255: Cited for the principle that a court cannot do indirectly what the statute forbids directly—supporting the dissent’s claim that if § 46-18-231(3), MCA (2019), forbids sentencing an offender to pay a fine they cannot pay, a “suspend-after-impose” method is incompatible with the statute’s command.

B. Legal Reasoning

1) No waiver despite plea agreement

The Court rejects waiver because Spang’s agreement to pay a $5,000 fine occurred in a legal environment treating the fine as mandatory (consistent with State v. Mingus). Subsequent doctrinal changes (State v. Gibbons and then State v. Cole) altered the framework governing mandatory fines and ability-to-pay analysis. Because defendants cannot stipulate to an illegal sentence and because the fine’s legality depended on evolving precedent, the Court allows appellate review notwithstanding the plea.

2) Authority to impose the fine after Cole; required procedure

The Court applies State v. Cole to dispose of Spang’s core illegality claim. Under Cole, § 61-8-731’s mandatory fine provisions are not facially unconstitutional and can be reconciled with § 46-18-231(3), MCA (2019), by using § 46-18-201(2), MCA (2019), to suspend the portion of the mandatory fine the defendant cannot pay.

The Court repeats Cole’s required sequencing:

1. Impose a mandatory fine within the sentencing statute’s limits.
2. Consider (under § 46-18-231(3), MCA (2019)) the nature of the crime, the offender’s financial resources, and the fine’s financial burden.
3. If inability to pay is found, suspend the fine to the extent of inability under § 46-18-201(2), MCA (2019).

3) Which subsection applied—why it did not change the remand

The parties disputed whether the sentence was governed by § 61-8-731(3), MCA (2019) (typically engaged by a fifth-or-subsequent DUI with a prior residential treatment placement) or by § 61-8-731(1)(a), MCA (2019). The Court observed:

• Spang’s record suggested § 61-8-731(3), MCA (2019), could fit because he had a fifth DUI and prior placement in WATCh West.
• But the sentence actually imposed (13 months DOC, five-year suspended sentence, and $5,000 fine) aligned with § 61-8-731(1)(a), MCA (2019), and matched both parties’ recommendation.
• For ability-to-pay purposes, the Court treated the relevant subsections as functionally equivalent under Cole and Horn: the fine must be imposed, and the court must then conduct the ability-to-pay evaluation.

4) Remedy: affirm the fine, remand for findings

Because the District Court imposed the fine without the required ability-to-pay analysis, the Supreme Court affirmed the fine’s imposition as within statutory bounds but remanded for a factual determination of ability to pay (a district-court question under State v. Fisher).

C. Impact

• Operational rule for felony-DUI fines: After Cole, Spang reinforces that sentencing courts must not stop at “mandatory minimum” language; they must build an ability-to-pay record under § 46-18-231(3), MCA (2019), and then use suspension authority as needed.
• More remands, more sentencing records: Any felony-DUI sentencing transcript that lacks an ability-to-pay inquiry is now a predictable remand candidate—even if the fine amount is statutorily correct.
• Plea agreements do not insulate mandatory fines: Defendants who stipulated to mandatory fines in plea agreements can still obtain review where subsequent precedent changes the legality/required procedure, limiting “waiver-by-plea” arguments in this niche.
• Continuing controversy (majority vs. dissent): The separate writing signals ongoing instability about whether “impose then suspend” truly complies with § 46-18-231(3), MCA (2019), and constitutional protections (cited as Article II, Section 22). That tension invites further litigation about what counts as “sentenc[ing] an offender to pay a fine” when a fine is immediately suspended.

4. Complex Concepts Simplified

• “Mandatory minimum fine”: A statute sets a floor (here, $5,000) the judge must apply unless the law provides a mechanism to reduce/avoid it.
• “Ability-to-pay analysis” (§ 46-18-231(3), MCA (2019)): The judge must consider the offender’s financial resources and burdens and may not order a fine unless the offender “is or will be able to pay.”
• “Harmonization” of statutes: When two statutes appear to conflict (mandatory DUI fine vs. ability-to-pay prerequisite), the court reads them together to give effect to both, if possible.
• “Suspend” (§ 46-18-201(2), MCA (2019)): The court can pronounce a sentence component but delay or relieve its enforcement (in whole or part) under conditions—here used, per Cole, to prevent collection of amounts beyond ability to pay.
• “Facially unconstitutional”: A statute is invalid in all its applications; Cole rejected Gibbons to the extent it declared § 61-8-731(3), MCA (2019), facially unconstitutional.

5. Conclusion

State v. C. Spang is principally a procedural enforcement decision implementing State v. Cole in the felony-DUI context: Montana courts may impose the mandatory minimum DUI fine, but they must also conduct a contemporaneous ability-to-pay evaluation under § 46-18-231(3), MCA (2019), with suspension as the majority-approved mechanism for amounts the defendant cannot pay. The Court affirms the fine’s legality while remanding for the missing factual findings—yet the concurring/dissenting Justices underscore an unresolved debate about whether the “impose then suspend” framework satisfies the statutory command that a court “may not sentence an offender to pay a fine” absent ability to pay.