NO. 87-339
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
DONALD C. COLLINS,
Plaintiff and Respondent,
STATE OF MONTANA, DEPARTMENT OF
JUSTICE, DIVISION OF HIGHWAY PATROL
and CLYDE LINDELL, Individually,
Defendants and Appellants.
APPEAL FROM: District Court of the Twentieth Judicial District
In and For the County of Lake
The Honorable James B. Wheelis, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Honorable Mike Greely, Attorney General, Helena, Montana
Kimberly A. Kradolfer, Assistant Attorney General
John H. Maynard, Helena, Montana
For Respondent:
James A. Manley; Manley, Smith & Dupuis, Polson, Montana
Submitted on Briefs: March 18, 1988
Decided: MaY 121 1988
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The State of Montana (the State) and Clyde Lindell
(Officer Lindell) appeal an order of summary judgment made by
the Lake County District Court in favor of Donald C. Collins
(Collins). The District Court awarded partial summary
judgment to Collins on the issues of the defendants'
liability for assault and battery and violation of Collins'
United States and Montana constitutional rights. We reverse
and remand with instructions to enter summary judgment in
defendants' favor.
On November 29, 1984, Officer Lindell of the Montana
Highway Patrol observed a vehicle driven in an erratic manner
near Pablo, Montana. Officer Lindell stopped the vehicle and
found that Collins was the driver. Collins performed field
sobriety tests for Officer Lindell and was subsequently
arrested for driving under the influence of alcohol (DUI).
Officer Lindell transported Collins to the Lake County
Sheriff's Office for DUI processing.
Collins was read Montana's implied consent instructions
at the sheriff's office and was asked to submit to a breath
test. Collins refused to submit to the breath test. Officer
Lindell then learned from a Lake County jailer that Collins
was on probation for a January 17, 1984, DUI offense and that
a condition of the probation was that Collins not consume
alcoholic beverages. After an unsuccessful attempt to
contact Collins' probation officer, Officer Lindell
telephoned Lake County Attorney John Frederick (Frederick) to
ask for advice.
Frederick, in his capacity as Lake County Attorney, was
personally aware that Collins was under a one-year suspended
sentence and probation for the January 17, 1984, DUI
conviction. Frederick had also been present at Collins'
September 10, 1984, arraignment on another DUI charge and a
charge of operating a motor vehicle while declared a habitual
traffic offender. Frederick was aware that the conditions of
Collins1 release were that Collins not drink alcoholic
beverages or drive an automobile. Frederick directed Officer
Lindell to obtain a telephonic search warrant from Justice of
the Peace Charles M. Meyers (Meyers) to authorize the
extraction of a blood sample from Collins. Officer Lindell
telephoned Meyers and explained the situation. Rather than
grant a telephonic search warrant, Meyers elected to meet
with Officer Lindell at the Lake County jail.
In the presence of Officer Lindell, Meyers telephoned
Frederick from the Lake County jail and was again informed of
the basis for the search warrant. Thereafter, Meyers issued
a handwritten search warrant to "authorize any qualified
medical person to withdraw a blood sample" from Collins.
Collins was then transported to St. Joseph's hospital in
Polson where a blood sample was withdrawn by a registered
nurse.
Collins subsequently pled guilty to a DUI, third
offense, operating a motor vehicle while declared a habitual
traffic offender, and driving without liability insurance in
connection with the November 29, 1984 arrest. Collins also
pled guilty to the charges stemming from his September 1984
DUI arrest. At the date of this appeal, Collins had been
convicted of five DUI offenses and numerous other related
offenses including driving while his license was revoked.
Collins was sentenced to four consecutive years with three
and one-half years suspended as a result of the November and
September 1984 incidents. Ninety days of his sentence were
served in the Lake County jail and the other ninety days were
spent at an a1..cohol treatment center in Wyoming.
Approximately nine days after his release from the alcohol
treatment center, Collins again violated the terms of his
probation by consuming alcohol in a bar.
On January 3, 1985, Collins filed this civil action
against Officer Lindell in which he alleged assault and
battery and violation of his constitutional rights. The
State moved to intervene on the basis that Officer Lindell
acted within the course and scope of his employment and that
the State must indemnify him pursuant to 5 2-9-305, MCA. The
State's motion to intervene was granted on May 15, 1986.
On May 28, 1986, Officer Lindell and the State moved for
partial summary judgment on the issue of liability. In its
opinion and order of September 2, 1986, the District Court
concluded that the blood sample was unauthorized, contrary to
$ 61-8-402(3), MCA, and was outside the course and scope of
Officer Lindell's employment. The District Court granted
summary judgment to Collins and Officer Lindell and the State
appeal. Appellants Lindell and the State raise the following
issues on appeal:
1. Did the District Court err when it
concluded that Officer Lindell was acting
outside the course and scope of his
employment?
2. Is Officer Lindell entitled to
summary judgment based on the undisputed
facts of this case?
3. Is the State entitled to summary
judgment based on the undisputed facts of
this case?
Collins raises the following additional issue:
4. Did Officer Lindell and the State
waive appellate review, and should this
Court decline appellate review, because
they entered into a stipulation for entry
of judgment?
Before addressing the merits of this appeal, we must
first dispose of Collins' issue regarding waiver of appellate
review. Collins contends that appellants have somehow waived
their right to appellate review by agreeing to an entry of
judgment for nominal damages before first appealing the
summary judgment. Collins does not cite any relevant legal
authority and we find no merit to his argument.
The facts material to this appeal are not in dispute.
Accordingly, we will review the District Court's legal
analysis and are free to draw our own conclusions. Schneider
v. Leaphart (Mont. 1987), 743 P.2d 613, 616, 44 St.Rep. 1699,
1703. In its opinion and order, the District Court first
concluded that Officer Lindell acted outside the course and
scope of his employment when he sought a blood sample after
Collins refused to submit to a breath test. The District
Court's conclusion in this regard was based on 5 61-8-402(3),
MCA, which provides as follows in pertinent part:
If a resident driver under arrest refuses
upon 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...
The District Court reasoned that Officer Lindell was no
longer acting within the course and scope of his employment
when he persisted in procuring a blood sample from Collins.
In their first issue, appellants contend that the District
Court erred when it concluded that Officer Lindell acted
outside the course and scope of his employment.
Appellants' rely on this Court's decision in State v.
Thompson (1984), 207 Mont. 433, 674 P.2d 1094, for the
proposition that, in an arrest for DUI, a refusal to submit
to a chemical test pursuant to 61-8-402, MCA, does not
always preclude the seizure of a blood sample. In Thompson
this Court held that the implied consent statute, 5 61-8-402,
MCA, does not apply to negligent homicide prosecutions. The
defendant, Thompson, was involved in an automobile accident
and was arrested for DUI. A Montana Highway Patrol (MHP)
officer requested that Thompson submit to a blood test.
Thompson refused to submit to the test. The MHP officer
later learned from the Missoula County Attorney's office that
a woman had died from injuries sustained in the automobile
accident and that Thompson was now suspected of negligent
homicide. A blood sample was subsequently taken over
Thompson's objection and was used to convict him of negligent
homicide. Thompson appealed to this Court and contended that
the evidence of his blood alcohol content was drawn against
his will in violation of the implied consent law. We
reviewed the legislative intent of § 61-8-402, MCA, and
concluded that application of the implied consent law to
negligent homicide cases to preclude chemical tests was not
within the intent of the legislature. Thompson, 674 P.2d at
1096-97. We reach a similar conclusion in this case.
Section 61-8-402, MCA, does not apply to the facts of
this case to preclude the taking of a blood sample pursuant
to a search warrant. It is clear that Officer Lindell acted
as he did in this case in order to preserve evidence relative
to Collins' violation of the terms of his probation and other
non-DUI offenses. That such conduct in this case is within
the course and scope of Officer Lindell's employment cannot
be questioned. Accordingly, we hold that the District Court
erred when it determined that Officer Lindell acted outside
the course and scope of his employment.
Appellants concede that evidence of blood alcohol
content obtained through the use of a blood sample taken over
a defendant's objection would not be properly admissible in
most DUI prosecutions. In this case, Collins pled guilty to
the DUI charge thereby negating any issue of the
admissibility of evidence of his blood alcohol content.
Where, as is the case here, law enforcement authorities have
probable cause to believe that an offense other than the
underlying DUI has occurred for which a blood test is
required to preserve evidence, a blood sample may be taken
pursuant to a search warrant. In Thompson, law enforcement
officials were aware that an individual died from injuries
sustained in the automobile accident. Consequently, there
was probable cause to believe that Thompson had committed
negligent homicide. In Thompson, the possible negligent
homicide charge provided the basis for a blood test.
Similarly, Collins' violation of the terms of his probation
provided the basis for the blood test in this case.
Obviously, not all non-DUI offenses can be used to justify a
blood sample taken without consent. For example, a violation
of Montana's mandatory seat belt law coupled with a DUI would
not normally justify the taking of a blood sample without
consent.
In their second and third issues, appellants contend
that because Officer Lindell's actions were in the course and
scope of his employment, he and the State are entitled to
immunity under several legal theories. However, the immunity
arguments need not be addressed because there are no genuine
issues of material fact suggesting that Officer Lindell
committed an assault and battery or an unauthorized invasion
of Collins' privacy.
Collins contends that it does not matter whether Officer
Lindell's actions were in the course and scope of his
employment because Lindell's actions were unauthorized and
contrary to 5 61-8-402, MCA. The taking of a blood sample
over his objection, Collins argues, was both an assault and
battery and an invasion of his privacy rights. However, as
noted above in our discussion of Thompson, 5 61-8-402, MCA,
does not apply to proscribe the taking of a blood sample in
this case. Moreover, Officer Lindell's actions were
authorized by the Montana statutes regarding search warrants.
Section 46-5-203, MCA, provides in pertinent part as
follows:
A search warrant may authorize the
seizure of the following:
(2) any instruments, articles, or things
which . . . may constitute evidence of
any offense;
In addition, 46-5-208, MCA, provides that " [all1 necessary
and reasonable force may be used to execute a search warrant
... Collins contends that the search warrant in this case
was illegal for two reasons. First, Collins reiterates his
position that a blood sample could not be taken without his
consent. Again, his position in this regard is without merit
under the circumstances of this case. Second, Collins points
out that Officer Lindell and Justice of the Peace Meyers did
not follow the statutory procedures for telephonic search
warrants as set forth in $ 46-5-202, MCA. These procedural
defects, Collins contends, render the search warrant void --ab
initio. Appellants concede that the proper procedures were
not followed, but argue that the search warrant is valid on
its face and is merely voidable, not void.
We agree with the appellants. The procedural defects in
obtaining the search warrant do not render it void in this
case. Although the application for this particular search
warrant was neither entirely written nor entirely telephonic
as described in § 46-5-202, MCA, sufficient grounds for
issuance of the search warrant were communicated to Justice
of the Peace Meyers. Furthermore, Collins does not contend
that Meyers was without jurisdiction to issue the search
warrant. While Collins does allege that the search warrant
is irregular on its face, he does not support this allegation
with any genuine issues of material fact.
Appellants claim the search warrant sufficiently
complies with $ 46-5-201, MCA, to be valid on its face. We
agree. As pointed out by the appellants, a " [m]inisterial
officer is justified in the execution of and must execute all
process and orders regular on their face and issued by
competent authority, whatever may be the defect in the
proceedings upon which they were issued." Harri v. Issac
(1940), 111 Mont. 152, 157, 107 P.2d 137, 140. In this case,
Officer Lindell was justified, authorized, and was in fact
compelled to obey the search warrant and direct the
registered nurse to take Collins' blood sample.
Collins is also incorrect in his position that Officer
Lindell's actions constituted an assault and battery. The
rules regarding assault and battery are summarized as follows
by the Restatement (Second) of Torts (1965), $ 13 and S 21
respectively:
3 Battery: Harmful Contact
An actor is subject to liability to
another for battery if
(a) he acts intending to cause a harmful
or offensive contact with the person of
the other or a third person, or an
imminent apprehension of such a contact,
and
(b) a harmful contact with the person of
the other directly or indirectly results.
21. Assault
(1) An actor is subject to liability to
another for assault if
(a) he acts intending to cause a harmful
or offensive contact with the person of
the other or a third person, or an
imminent apprehension of such a contact,
and
(c) the other is thereby put in such
imminent apprehension.
Collins submits "that there is no question that causing
another person's body to bleed is a harmful or offensive
physical contact. " However, even if the taking of a blood
sample constituted an assault and battery, which it does not
in this case, such action by Officer Lindell is privileged
under the circumstances presented. Collins overlooks 5 145
of the Restatement (Second) of Torts (1965) which provides
that "[olne serving a process or executing an order of a
court or other public authority is privileged, if such order
is valid or fair on its face, to use such force against the
person of another . . . as is authorized by the order or is
reasonably necessary for the service of the process or the
execution of the order." See also S 46-5-208, MCA, (all
reasonable and necessary force may be used to execute a
search warrant.) The search warrant in question was valid on
its face and particularly authorized that a blood sample be
taken from Collins. Had there been a "harmful" or
"offensive" contact, such contact would have been privileged
in this instance.
We do not believe that the taking of a blood sample by
trained medical personnel is either harmful or offensive
given the present state of medical technology and blood
testing techniques. Millions of Americans submit to blood
sampling every day without ill effect. Collins testified
that he experienced no pain from having the blood sample
taken and testified only that he was embarrassed that the
blood sample had to be taken over his objection. Collins1
embarrassment is insufficient to support his assault and
battery claim.
The United States Supreme Court reached a similar
conclusion eleven years ago in the context of a
constitutional due process argument. In Breithaupt v. Abram
(1957), 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, Breithaupt
was involved in an automobile accident in which three persons
were killed. Breithaupt was unconscious at the hospital when
a New Mexico State Patrolman asked that a blood sample be
taken. The chemical analysis of the blood sample was later
used as evidence to convict Breithaupt of involuntary
manslaughter.
On appeal to the United States Supreme Court, Breithaupt
argued that his conviction, based on the chemical analysis of
a blood sample taken without his consent, violated his due
process rights under the Fourteenth Amendment to the United
States Constitution. Breithaupt relied on Rochin v.
California (1952), 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183,
to assert that an involuntary blood test is similar to the
forced stomach pump present in Rochin in that both acts
"shock the conscience" and are so "brutal" and "offensive" as
to be violative of a person's due process rights.
Briethaupt, 352 U.S. at 435. The United States Supreme Court
disagreed with Breithaupt and stated the following:
[TIhere is nothing "brutal" or
"offensive" in the taking of a sample of
blood when done, as in this case, under
the protective eye of a physician.
[A] blood test taken by a skilled
technician is not such "conduct that
shocks the conscience," . ..
nor such a
method of obtaining evidence that it
offends a "sense of justice," . . .
The test upheld here is not attacked on
the ground of any basic deficiency or of
injudicious application, but admittedly
is a scientifically accurate method of
detecting alcoholic content in the blood,
thus furnishing an exact measure upon
which to base a decision as to
intoxication. Modern community living
requires modern scientific methods of
crime detection lest the public go
unprotected. The increasing slaughter on
our highways, most of which should be
avoidable, now reaches the astounding
figures only heard of on the battlefield
[S]ince our criminal law is to no small
extent justified by the assumption of
deterrence, the individual's right to
immunity for such invasion of the body as
is involved in a properly safeguarded
blood test is far outweighed by the value
of its deterrent effect due to public
realization that the issue of driving
while under the influence of alcohol can
often by this method be taken out of the
confusion of conflicting contentions.
(Citations omitted.)
352 U.S. at 436-37, 439-40 (cited with approval in State v.
Haley (1957), 132 Mont. 366, 373-375, 318 P.2d 1084,
1087-88.) The reasoning and conclusion of Breithaupt as
approved in Haley are persuasive in our determination that
the blood test does not constitute an assault and battery
under the particular circumstances of the case now before us.
Collins also contends that the blood test violated his
right to privacy and cites to Schmerber v. California (1966),
384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, for support. In
Schmerber, a blood sample was taken from an injured motorist
(Schmerber) by a physician at the direction of a California
police officer. The chemical analysis of the blood sample
was subsequently admitted as evidence in Schmerber's DUI
trial. Schmerber was convicted and his conviction was upheld
by a California appellate court. Schmerber appealed to the
United States Supreme Court and contended that the blood test
violated his right not to be subjected to unreasonable
searches and seizures. In its opinion, the United States
Supreme Court recognized that the taking of blood samples by
law enforcement officials without consent would, in limited
circumstances, be prohibited by the personal privacy
guarantees of the Fourth Amendment to the United States
Constitution. However, Schmerber also specifically notes
that the "Fourth Amendment's proper function is to constrain,
not against all intrusions as such, but against intrusions
not justified in the circumstances, or which are made in an
improper manner." Schmerber, 384 U.S. at 768. The Schmerber
Court went on to conclude that the taking of a blood sample
without a search warrant was "an appropriate incident to
[Schmerber's DUI] arrest." 384 U.S. at 771. Schmerber does
not support Collins' privacy argument because the blood
sample in this case was justified in the circumstances and
was taken in a proper manner.
Collins again premises his invasion of privacy argument
on the mistaken belief that the blood test was unauthorized
and contrary to 5 61-8-402, MCA. Collins also fails to make
any significant invasion of privacy argument in his appellate
brief. Possibly for that reason, appellants fail to address
the privacy issue altogether. Though there has been no
invasion of Collins' privacy, we believe the privacy issue to
be significant enough in terms of the public policy impact of
this case as to merit at least a cursory analysis regardless
of the parties' failure to address the issue.
Montanans have mandated that " [t]he right of individual
privacy is essential to the well-being of a free society and
shall not be infringed without a showing of a compelling
state interest." Mont.Const. art.11, § 10. This Court will
continue to closely review cases such as the one now before
us for evidence that this right of privacy has been
infringed. That the State of Montana has a compellinq
interest in protecting its citizens from the ever-increasing
threat of drunk drivers cannot be disputed. However, this
appeal does not present us with a DUI case and the removal of
drunk drivers from our highways is not the compelling state
interest involved. Mr. Collins has been duly convicted and
sentenced for his repeated violations of Montana's DUI laws.
We can only hope that Collins, and others like him, will
cease to be a threat to our safety on and off the highway.
The particular compelling state interest served here is
Montana's enforcement of its criminal laws, other than DUI in
this case, where such enforcement is for the protection and
benefit of Montanans' other fundamental rights. State ex
rel. Zander v. District Court (1979), 180 Mont. 548, 556, 591
P. 2d 656, 660. As we have previously noted, the blood test
in this instance would not have been authorized without
Collins' consent had this been solely a DUI case. Section
61-8-402, MCA. In the instance of a non-DUI offense, an
involuntary blood test supported by a search warrant issued
with sufficient probable cause serves to protect the State's
interest in enforcing its criminal laws and, as such, is not
a violation of a person's right to privacy under the Montana
Constitution. However, law enforcement officials should be
cautioned that, given the proper circumstances, we will not
hesitate to hold that a blood test taken without probable
cause or exigent circumstances is unreasonable and an
invasion of a person's right to individual privacy. In
addition, our holding today must not be interpreted by law
enforcement officials to authorize carte blanche blood
sampling of Montanans.
For all the foregoing reasons, we hold that the District
Court erred in granting summary judgment to Collins and we
reverse and remand with instructions to enter summary
judgment in favor of Officer Lindell and the State of
Montana.
Reversed and remanded with
fe ,h
/
I I
i
Justice
We concur: /
Justices