Background
Terry Lee Hagberg, a 70-year-old with a decades-long history of alcohol dependence, was driving from Ryegate to Forsyth, Montana on July 24, 2022, after consuming roughly three large travel mugs of whiskey and soda and several beers. A Rosebud County deputy observed Hagberg drive off the road, run a stop sign, attempt to enter the wrong interstate ramp, and stop in the wrong lane. After a traffic stop, Hagberg demonstrated six out of six indicators of impairment during a field sobriety test and told the deputy he was seeing double. A blood draw pursuant to a warrant revealed a BAC of 0.272—more than three times the legal limit. Investigation revealed Hagberg had three prior DUI convictions and a suspended license.
The State charged Hagberg with felony DUI (fourth or subsequent offense) under § 61-8-1002(1)(b), MCA (2021), and driving while suspended. Pursuant to a plea agreement, Hagberg pleaded guilty to the DUI count in exchange for dismissal of the driving-while-suspended charge. The Sixteenth Judicial District Court sentenced Hagberg to a 13-month Department of Corrections commitment with a recommendation for residential alcohol treatment, followed by a consecutive four-year suspended DOC commitment. The court imposed the statutory mandatory minimum fine of $5,000 under § 61-8-1008, MCA (2021), then suspended $2,500 of that fine based on Hagberg’s medical debt and financial condition.
Hagberg appealed solely on the fine issue, arguing the mandatory $5,000 fine was unconstitutional. His appeal was complicated by intervening caselaw: while the appeal was pending, the Montana Supreme Court decided State v. Gibbons (2024), which struck a nearly identical fine provision as facially unconstitutional, and then State v. Cole (2026), which overruled Gibbons in part and established a framework requiring courts to impose the mandatory fine, assess ability to pay, and then suspend the fine to the extent the defendant cannot pay.
The Court’s Holding
The court first held that Hagberg did not waive appellate review by agreeing to the fine in his plea agreement. Because the constitutionality of the mandatory fine provision was an open legal question that was subsequently addressed by Gibbons and Cole while Hagberg’s appeal was pending, his agreement to the fine at sentencing could not constitute a knowing waiver of the right to challenge it.
On the merits, the court affirmed the imposition of the $5,000 mandatory minimum fine under § 61-8-1008(1)(a)(i), MCA (2021), applying the Cole framework. Under Cole, a sentencing court must impose the mandatory fine, then conduct an individualized ability-to-pay analysis under § 46-18-231(3), MCA, and suspend the fine to the extent the defendant lacks ability to pay, using the suspension authority granted by § 46-18-201(2), MCA. The majority concluded that the differences between subsections of the predecessor statute—§ 61-8-731, MCA (2019)—were no longer material under the successor provisions, and that the Cole analysis applies uniformly regardless of which subsection governs.
Because the District Court suspended a portion of the fine before Cole was decided, the court vacated the fine portion of the judgment and remanded for the District Court to conduct an explicit ability-to-pay analysis consistent with Cole’s requirements. Three justices dissented, arguing that mandatory imposition violates the Excessive Fines Clauses of the U.S. and Montana Constitutions because courts must have discretion to assess proportionality before—not after—imposing a fine, and that on these facts the fine should be stricken entirely.
Key Takeaways
- Defendants do not waive appellate review of a sentence by agreeing to it in a plea deal when the constitutionality of that sentence was unsettled and later addressed by intervening authority while the appeal was pending.
- Under Cole, Montana’s mandatory minimum DUI fine statutes are constitutional so long as sentencing courts (1) impose the mandatory fine, (2) make express ability-to-pay findings under § 46-18-231(3), MCA, and (3) suspend the fine to the extent the defendant cannot pay under § 46-18-201(2), MCA.
- Because the District Court suspended half the fine before Cole was decided, the fine portion of the judgment was vacated and remanded for new, Cole-compliant ability-to-pay findings—even though the fine’s imposition itself was affirmed as lawful.
- Three dissenting justices would have gone further, holding that mandatory imposition before any proportionality assessment is itself an Excessive Fines Clause violation and that the fine should be eliminated entirely on these facts.
Why It Matters
Hagberg is part of a series of Montana Supreme Court decisions—alongside Gibbons, Cole, Spang, and Horn—actively reshaping how mandatory minimum fines operate in DUI cases. For defense attorneys, the decision confirms that ability-to-pay arguments remain live on appeal even after a guilty plea, and that remand for Cole-compliant findings is available where the sentencing court did not conduct that analysis. For prosecutors and district courts, it signals that explicit, on-the-record ability-to-pay findings are now required at sentencing to withstand appellate review of mandatory fines.
The three-justice dissent keeps alive a constitutional challenge that could resurface: if the Montana Supreme Court’s composition or reasoning shifts, the argument that mandatory imposition itself—before any proportionality finding—violates the Excessive Fines Clauses may yet prevail. Practitioners handling repeat-DUI sentencings in Montana should monitor whether the legislature amends § 61-8-1008, MCA, in response to this line of cases, and should develop detailed financial records for clients facing mandatory fines regardless of which side of the v. they represent.