No. 8 6 - 3 7 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MATTER OF THE
SUSPENSION OF THE DRIVING
PRIVILEGES OF
CRAIG F. ORMAN.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman, Montana
Duke R. Wolf, Deputy County Attorney, Bozeman, Montana
For Respondent:
Steven D. Nelson, Bozeman, Montana
Submitted on Briefs: Oct. 30, 1 9 8 6
Decided: December 1 2 , 1986
Filed:
DEC 1 2 1986
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Craig Orman was arrested for driving und.er the influence
of alcohol. At the time of his arrest he refused to submit
to a breath test to determine the level of his intoxication.
The Department of Justice suspended M.r. Orman's driver's
license for one year because the breath test refusal was his
second such refusal in Montana within the past five years.
The District Court for the Eighteenth Judicial District,
Gallatin County, granted Mr. Orman's petition to reinstate
his driving privileges because the police officer involved
may have unintentionally misled Mr. Orman regarding Montana's
implied consent law. We affirm.
The issue in this case is whether the District Court
erred in reinstating Mr. Orman's driving privileges.
In February 1986, Craig Orman, a Washington resident,
was arrested by a Bozeman police officer for suspicion of
driving while under the influence of alcohol and transported
to the Gallatin County Detention Center (Center). Once at
the Center, the police officer handed Mr. Orman a copy of the
Montana implied consent law advisory form (form). While the
police officer read the form to him, Mr. Orman, sitting
across the table from the officer, read the same form. Mr.
Orman then reread the form silently and said that he was not
going to take the test. Apparently to clear up any confusion
that might exist, the police officer then re-advised Mr.
Orman that he would lose his driver's license for ninety days
if he refused to take the test. All of the above proceedings
at the Center were video-taped.
The police officer was aware that Mr. Orman had been
previously arrested for a D.U.I. However, the officer was
not aware that Mr. Orman had previously refused to ta.ke a
blood or breathalizer test. Because Mr. Orman's refusal in
this case was his second such refusal in Montana within the
last five years, the Motor Vehicle Division of the Department
of Justice sent a one year license suspension letter to him
in accordance with S 61-8-403, MCA.
The District Court reinstated Mr. Orman's driver's
license stating:
[Dlue to serious ramifications of a second refusal,
the Court believes that the police should advise
people that if any advise (sic) is given then it
should include the second as well as the first
refusal. The tape in this case showed that the
statement of the officers indicated the license
would only be suspended for ninety (90) days. This
prohibited the Defendant from exercising intelli-
gent judgment. For this reason, the Court rein-
states driving privileges.
The Gallatin County Attorney's office appealed the
decision on behalf of the Department of Justice, Plotor Vehi-
cle Division.
Did the District Court err in reinstating Mr. Orman's
driving privileges?
Sections 61-8-401 to 408, MCA, are the principle stat-
utes controlling the driving of a motor vehicle while under
the influence of alcohol or drugs. Mr. Orman argues that his
conduct did not rise to the level of a refusal to submit to
the breathalizer test, and analogizes his conduct to the
conduct of a person who consents to a search of his person or
property, contending that a refusal should be found only
where there was a knowing and voluntary refusal. This argu-
ment does not consider the nature of the motor vehicle stat-
utes in question. Section 61-8-402, MCA, in substance
provides that any person who operates a vehicle upon the
roads of this state shall be deemed to have given consent to
a chemical test of his breath for the purpose of determining
the alcoholic content of his blood if arrested by a police
officer for driving under the influence of alcohol. The
section further provides that a person is deemed - to have
not
withdrawn the consent even though he is unconscious or is
otherwise in a condition rendering him incapable of refusal.
As an example, if a person is so grievously under the influ-
ence of alcohol that he is incapable of expressing his refus-
al to take the blood alcohol test or a breath test, the state
still has the right under the statute to take such a test.
We therefore conclude that the cases pertaining to the volun-
tariness of a consent search or the knowing commitment of an
offense are not of assistance.
Section 61-8-403, MCA, controls the appeal from the
suspension of a license to the district court and in part
limits the issues to be considered by the court as follows:
. . . the court shall take testimony and examine
into the facts of the case, except that the issues
shall be limited to whether a peace officer had
reasonable grounds to believe the person had been
driving or was in actual physical control of a
vehicle upon ways of this state open to the public,
while under the influence of alcohol, whether the
person was placed under arrest, and whether such
person refused to submit to the test. The court
shall thereupon determine whether the petitioner is
entitled to a license or is subject to suspension
as heretofore provided.
The District Court correctly identified the key issue as
whether Mr. Orman refused to submit to the breathalizer test.
We have reviewed the videotape prepared at the Center,
which covers the police procedure with Mr. Orman. The offi-
cer carefully read the State of Montana implied consent law
advisory form which covers the essential elements of
5 61-8-402, MCA, and which specifically provides as follows
with regard to the suspension of the license and driving
privilege:
3. You are advised that:
. . Upon
(b)
. receipt of the sworn statement, the
Motor Vehicle Division shall suspend your
driver's license and driving privilege for 90
days upon a first refusal; or shall revoke
your license and driving privilege for one (1)
year upon a second or subsequent refusal
within a five (5) year period. In either
case, no provisional or probationary license
may be issued.
The tape shows that the officer carefully read that provision
to Mr. Orman. In addition, the tape shows that Mr. Orman
reread the form to himself over the course of several
minutes. After completing that rereading, Mr. Orman stated
that he was not going to take the breathalizer test. Up to
that point the procedure taken by the police officer was
meticulously careful and complete and would clearly afford a
basis to conclude that Mr. Orman's license should be revoked
for one year upon his second refusal to take the breathalizer
test within the previous five years. However, there were
additional statements made which caused the District Court to
reach a different conclusion.
me--tape-demons
tra-s-&-pos s+fri-1;-i-y--tha
t Mr. Orman may
have beek-s*ht-ly-e-enfu-sed--at++tiW&eo--t-ake-
t-h-her--Ce. J n substance the officer next advised
Mr. Orman that he would have to charge him with driving under
the influence and that his license would be suspended for
ninety days. Next, after giving the Miranda warning, the
officer asked Mr. Orman a number of questions. Mr. Orman
specifically stated that he thought he was under the influ-
ence of alcohol. The tape further demonstrates that the
police officer ran Mr. Orman through the same tests at the
Center as were given at the time of initial arrest. The
tests confirm the conclusion of Mr. Orman that he appeared to
be under the influence of alcohol-. In the course of this
questioning and testing, the officer indicated several more
times that he was required to charge Mr. Orman with driving
under the influence and that his license would be suspended
for ninety days. We do emphasize that there was no intent on
the part of the officer to mislead Mr. Orman. The officer
did not know that Mr. Orman had previously refused a
breathalizer test within the past five years. A review of
the evidence clearly demonstrates that even a person not
under the influence of alcohol would reasonably have conclud-
ed that his license was going to be suspended for only ninety
days. We do not find it reasonable to separate this knowl-
edge from the initial statement by Mr. Orman that he would
not submit to the breathalizer test. While we do not choose
to set forth any rule controlling the information to be given
by an officer at the time of such an arrest, we conclude in
this specific set of circumstances, that Mr. Orman's refusal
to submit to the breathalizer test contained a condition of a
ninety day driver's license suspension.
We affirm the order of the District Court reinstating
Mr. Orman's driving privileges, noting that the record demon-
strates that his driving privileges had been suspended for
more than ninety days prior to the reinstatement by the
District Court.
Chief Justice
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 86-376
-
IN RE THE MATTER O F THE SUSPENSION )
O F THE DRIVING PRIVILEGES OF 1 O R D E R
CRIAG F. ORMAN
The State petitioned this Court for a rehearing or a
clarification of this matter. After due consideratioc of the
arguments made, we conclude that our opinion dated December
12, 1986, contains a sentence which is unnecessary and thus
the opinion should be amended by striking the entire first
sentence of the last paragraph on page 5 of the slip opinion.
The sentence to be elininated from the opinion is. the one
which states: "The tape demonstrates the possibility that
Mr. Orman may have been slightly confused at the time he
refused to take the breathalizer test." Thus, page 5 of the
slip opinion shall read:
FILED
FEB 19 1987
CL-K OF SUPREME COURT
FTATE O f MON7ANA
with regard to the suspc-nsion of the 1-icense and driving
privilege:
3. You a r e a d v i s e d t h a t :
. . .
( b ) Upon r e c e i p t o f t h e s w o r n s t a t e m e n t , t h e
Motor V e h i c l e D i v i s i o n s h a l l s u s p e n d y o u r
d r i v e r ' s l i c e n s e and d r i v i n g p r i v i l e g e f o r 90
d a y s upon a f i r s t r e f u s a l ; o r s h a l l r e v o k e
y o u r l i c e n s e a n d d r i v i n g p r i v i l e g e f o r rJne (1)
y e a r upon a s e c o n d o r s u b s e q u e n t r e f u s a l
within a f i v e (5) year period. In either
c a s e , no p r o v i s i o n a l o r p r o b a t i o n a r y l i c e n s e
may b e i s s u e d .
The t a p e shows t h a t t h e o f f i c e r c a r e f u l l y r e a d t h a t p r o v i s i o n
to Mr. Orman. In addition, the tape shows t h a t M r . Orman
reread the form to himself over the course of several
minutes. After completing t h a t rereading, Mr. Orman s t a t e d
t h a t he w a s not going t o take t h e b r e a t h a l i z e r test. Up t o
that point the procedure taken by the p o l i - c e o f f i c e r was
m e t i c u l o u s l y c a r e f u l and c o m p l e t e a n d would c l - e a r l y a f f o r d a
b a s i s t o conclude- t h a t M r . Orman's l i c e n s e s h o u l d b e r e v o k e d
f o r o n e y e a r upon h i s s e c o n d r e f u s a l t c t a k e t h e b r e a t h a l i z e r
test within the previous f i v e years. However, there were
a d d i t i o n a l s t a t e m e n t s made w h i c h c a f i s e d t h e D i s t r i c t C o u r t t o
reach a d i f f e r e n t conclusion.
I n substance t h e o f f i c e r next advised Mr. Orman t h a t h e
would h a v e t o c h a r g e him with d r i v i n g under t h e influence
and that. his license would he suspended for ninety days.
Next, after giving the Miranda warning, t h e o f f i c e r asked
Mr. Grman a number o f q u e s t i o n s . Mr. Orman s p e c i f i c a l l y
stated that he thought he was under the influence of
alcohol. The t a p e f u r t h e r demonstrates t h a t the police
officer ran Mr. Orman t h r o u g h the same tests at the
In all
clarification
DATED t h