No. 85-297
I N THE SUPREME COURT O THE STATE OF MONTANA
F
1985
JAMES R . JOHNSON,
P e t i t i o n e r and R e s p o n d e n t ,
DIVISION O M T R VEHICLES,
F OO
M N A A DEPARTMENT O JUSTICE,
O T N F
Respondent and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f R a v a l l i ,
The H o n o r a b l e D o u g l a s H a r k i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For A p p e l l a n t :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Barbara Claassen, A s s t . A t t y . General, Helena
R o b e r t B. Brown, R a v a l l i County A t t o r n e y , H a m i l t o n ,
Montana
For Respondent:
J e f f r e y H. L a n g t o n , H a m i l t o n , Montana
S u b m i t t e d on B r i e f s : Sept. 19, 1985
Decided: December 3 1 , 1985
Filed:
arc 3 '
:dHb
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The State appeals a Raval-li County District Court order
requiring the State to restore a driver's license seized
under Montana's Implied Consent Law when the driver failed to
submit to a breathalyzer test requested by a police officer.
The issue on appeal is whether respondent James Johnson
"cured" his failure to submit to the breathalyzer test by
initiating a blood alcohol test a short time later. We hold
that the later test did not cure respondent's prior failure
to submit and, accordingl-y,we reverse.
The only evidence in the District Court file is the
result of the blood alcohol test performed on respondent. We
piece together the facts of this case from the District Court
order and from counsels' unsworn statements in the
transcript. As far as can be pieced together, the facts are
these.
~t approximately 1:00 a.m. on March 24, 1985,
respondent was arrested for driving a motor vehicle while
under the influence of alcohol. Deputy Sheriff Capp, the
arresting officer, took the respondent to the Ravalli County
Courthouse. Officer Capp informed respondent of the Miranda
warnings and also of respondent's rights and duties under
Montana's Implied Consent Law. Officer Capp requested that
respondent take a breathalyzer test and respondent replied by
asking if he could have an attorney present during the test.
Officer Capp told respondent that he did not have that right.
Officer Capp again read respondent his rights and duties
under Montana's Implied Consent Law and respondent requested
the presence of an attorney. Deputy Capp again stated that
respondent had no right to an attorney for this test.
Respondent's counsel concedes that respondent was requested a
third time to submit to the breathalyzer test. Respondent
again asked about the possibility of having a lawyer present.
Officer Capp finally deemed respondent's answers as a refusal
to submit to the test. Respondent's driver's license was
seized by the police under the Implied Consent Law because of
his failure to submit to the breathalyzer test.
Respondent may not have expressly refused to submit to
the sobriety test. Similarly, respondent may have been
confused by the apparent conflict between the Miranda
warnings, which cited his right to an attorney (during
custodial interrogation), and the lack of a right to an
attorney during the sobriety test.
Respondent was booked and jailed following his refusal
to submit to the test. He asked the jailor that he be taken
to the hospital for an examination because his wrists had
apparently been bruised by police handcuffs. Once there,
respondent asked that a doctor take a blood alcohol test but
requested that the results not be made available to the
police. Respondent contends that this blood test was taken
approximately 2 0 minutes after respondent's failure to submit
to the police breathalyzer test. The test was taken for
respondent's personal use.
On March 28, 1985, respondent's attorney filed a
petition for restoration of driver's license. On April 3,
1985, a hearing was had on the petition. No witnesses
testified but both respondent's attorney and the County
Attorney made statements to the court. Respondent's
attorney, on behalf of respondent, offered the results of the
blood alcohol test to the State for its prosecution of the
DUI case against respondent. The results of the test showed
that respondent's blood alcohol level was . 2 0 when he was at
the hospital, an undetermined time after his arrest. At the
hearing, respondent's counsel a.rgued that respondent did not
expressly refuse the breathalyzer test and that respondent
may have been confused by the apparent conflict between the
Miranda warnings and the lack of a right to an attorney
during the test. Respondent contended that he substantially
complied with the Implied Consent Law.
The District Court filed an order on April 3, 1985.
The court found that respondent requested a blood alcohol
test within a reasonable time after his prior implied
refusal. The court ordered the restoration of respondent1s
license. The State appeals.
In this case, the trial judge sat without a jury, no
testimony was taken, and the facts are relatively
uncontested. In such a case, the scope of review is much
broader than in other appeals and "this Court is free to make
its own examination of the entire case and to make a
determination in accordance with its findings." Shimsky v.
Valley Credit Union (Mont. 1984), 676 P.2d 1308, 1310, 41
St.Rep. 258, 260, citing Steadman v. Halland (Mont. 1982),
At the time of the arrest, S 61-8-402, MCA, commonly
called the Implied Consent Law, stated:
(1) Any person who operates a motor
vehicle upon ways of this state open to
the public shall be deemed to have given
consent, subject to the provisions of
61-8-401, to a chemical test of his
blood, breath, or urine for the purpose
of determining the alcoholic content of
his blood if arrested by a peace officer
for driving or in actual physical control
of a motor vehicle while under the
influence of alcohol. The test shall be
administered at the direction of a peace
officer having reasonable grounds to
believe the person to have been driving
or in actual physical control of a motor
vehicle upon ways of this state open to
the public while under the influence of
alcohol. The arresting offices may
designate which one of the aforesaid
tests shall be administered.
(3) If a resident driver under arrest
refuses upon the request of a peace
officer to submit to a chemical test
designated by the arresting officer as
provided in subsection (1) of this
section, none shall be given, but the
officer shall, on behalf of the division,
immediately seize his driver's
license ...
This Court has interpreted 5 61-8-402, MCA, in State v.
Christopherson (Mont. 1985), 705 P.2d 121, 42 St.Rep. 1320,
and Matter of Burnham (Mont. 1985), 705 P.2d 603, 42 St.Rep.
1342. The instant case is controlled by our holdings in
Christopherson and Burnham, both of which were u.ndecided when
this case was in the District Court.
In Christopherson, the appellant was arrested for
driving while under the influence of alcohol. He refused a
police request to submit to a breath test and instead a-sked
for and offered to pay for a blood alcohol test. We held
that Christopherson's driver's license was properly suspended
under 5 61-8-402(3), MCA, for refusing to submit to a
chemical blood alcohol test. In so holding, we stated:
The purpose of Section 61-8-402, MCA, is
to encourage a person arrested for DUI to
submit to a chemical test. The statute
provides that the arresting officer is to
designate which type of chemical test
will be administered. The arrested
person may take the designated test or
refuse it, but if he will not take the
test designated by the officer, his
driver's license shall be suspended. The
language of the statute makes it clear
that it is the refusal to take the test
designated the arresting officer that
triggers the suspension, not the refusal
to take any test whatsoever. If the
arrested person chooses to take a
chemical test other than the test
designated by the arresting officer and
will not take the designated test, it is
still a refusal for which his driver's
license will be suspended. (Emphasis in
original.)
Christopherson, 42 St.Rep. at 1322. This language is
directly applicable to the instant case.
In Burnham, we reversed the District Court's holding
that,
... Burnham's plea of guilty to the
offense of driving under the influence of
alcohol or drugs constituted a withdrawal
of his refusal to take a breath test
under Montana's implied consent statute.
Burnham, 705 P.2d at 606, 42 St.Rep. at 1345. With reference
to § 61-8-402, MCA, we stated,
There is nothing in this section, or any
other section of the code, that allows a
withdrawal of a refusal to submit to a
chemical test.
Burnham, 705 P.2d at 608, 42 St.Rep. at 1347.
We find that Burnham and Christopherson are controlling
and, therefore, we reverse the District Court. The District
Court found, and we agree, that respondent's conduct
constituted an implied refusal to take the breath test.
Respondent repeatedly failed to submit to the test when asked
to do so. Once a refusal to take the test is found, nothing
in Montana law provides for a "cure" or withdrawal of that
refusal. We hold that the police properly seized
respondent's driver's license.
Respondent cites Moore v. State, Motor Vehicles Div.,
Etc. (Or. 1982), 652 P.2d 794, for the proposition that a
driver's request to speak with an attorney before consenting
to testing is not, in and of itself, a refusal to take the
test. The Oregon decision is distinguishable, unpersuasive
and predicated upon a right which does not exist in Montana.
In Oregon, a person has a limited right to speak with an
attorney before consenting to a breath test. Moore, 652 P.2d
at 797. In Montana, a defendant has no right to speak with
an attorney before a sobriety test or to have an attorney
present during a test. State v. Armfield (Nont. 1984), 693
P.2d 1226, 41 St.Rep. 2430. Furthermore, Deputy Capp three
times asked respondent to take the test and three times
respondent failed to do so. That is a refusal.
Respondent cites cases to the effect that where a
defendant, because of confusion over the Miranda warnings,
requests an attorney before consenting to the test, that
request does not constitute a refusal to submit to testing.
Citing State v. Welch (Vt. 1977), 376 A.2d 351; Rust v.
Department of Motor Vehicles (1968), 73 Cal.Rptr. 366; Plumb
v. Department of Motor Vehicles (1969), 81 Cal.Rptr. 639.
Other courts have also addressed situations where defendants
are confused by the Miranda warnings and the right, or lack
thereof, to an attorney before a blood alcohol test. See
Gaunt v. Motor Vehicle Div., Dept. of Transp. (Ariz. App.
1983), 666 P.2d 524; State, Department of Highways v. Beckey
(Minn. 1971), 192 N.W.2d 441. With the exception of Welch,
which is distinguishable from the instant case in any event,
these cases require that the police clearly inform the
defendant that he has no right to an attorney during a blood
alcohol test. If this is done, the courts agree that the
defendant's confusion about the Miranda warnings is no excuse
for his refusal to submit to a blood alcohol test.
In the instant case, respondent's counsel admitted that
the police informed respondent twice that he had no right to
have an attorney present for the blood alcohol test.
Furthermore, there is no evidence that respondent was
confused by the apparent conflict between the Miranda
warnings and the lack of a right to an attorney during a
sobriety test. There is only counsel's bald assertion to
that effect. Under these circumstances, respondent will not
be heard to argue that he was confused by his rights under
Miranda.
Finally, respondent asserts that the State accepted the
test results offered by respondent from the later sobriety
test. Respondent argues that the State cannot now attack the
District Court's order because the State acquiesced in the
judgment by accepting the test results and because the State
received a benefit from the judgment. We reject this
argument without reaching the legal issue. The record shows
that respondent's counsel voluntarily told the County
Attorney the results of the test before the court ever
entered its order. The record does not show that the State
used the test results in its prosecution of the DUI case.
Nor does the record show the resolution of the DUI case or
that the State acquiesced in the District Court's order. The
respondent's argument on this issue is without merit.
We agree with the reasoning of other courts which have
addressed issues similar to the main issue here.
There are several factors militating
against the argument for additional time
to allow a driver's subsequent offer to
take the test. As time elapses between
arrest and the test, the reliability and
accuracy of the test diminishes ...
The
time element may require involvement of
an expert to extrapolate information
derived from a delayed test ...
This
tends to unnecessarily compound or
complicate matters of evidence. Also,
permitting a delayed test at the
subsequent offer of the motorist would
require officers to wait and see if there
wa.s a change of mind by the refusing
motorist, and would require officers to
forego other responsibilities in order to
arrange the belated test -- all contrary
to the clear intent behind the implied
consent law that the test be submitted
and completed expeditiously. (Citations
omitted. )
Hoyle v. Peterson (Neb. 1984), 343 ~ . ~ . 2 730,
d 734.
Similarly, t h e New J e r s e y c o u r t i n S t a t e v. Corrado (N.J.
App. 1 9 8 2 ) , 446 A.2d 1229, 1232, s t a t e d t h a t :
The c a s e s e x p r e s s i n g t h e m a j o r i t y view
[ t h a t an i n i t i a l r e f u s a l t o t a k e a
s o b r i e t y t e s t i s f i n a l a n d t h e r e i s no
right to cure an initial refusal]
e s s e n t i a l l y t u r n on t h e q u e s t i o n o f t h e
unreasonableness of having police
o f f i c e r s t u r n a s i d e from o t h e r d u t i e s t o
administer a test a f t e r t h e d r i v e r has
i n i t i a l l y refused.
This reasoning i s persuasive.
We reverse the District Court o r d e r and remand this
case for f u r t h e r proceedings c o n s i s t e n t with th#opinion.
/
Justice /
W e concur: