No. 92-347
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MICHAEL KLINKHAMMER,
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cqnnon & Sheehy,
Helena, Montana
For Respondent:
Honorable Marc Racicot, Attorney General,
Cregg W. Coughlin, Assistant Attorney General,
Helena, Montana; Robert L. Deschamps 111, Missoula
County Attorney, Gary L. Henricks, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: October 14, 1992
Decided: February 3, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant and appellant, Michael Klinkhammer, appeals fromthe
decision of the District Court of the Fourth Judicial District,
Missoula County. Defendant was charged with driving under the
influence of alcohol, second offense. Defendant s mot ion to
dismiss the charge was denied by the District Court. Following the
court's denial of his motion to dismiss, defendant entered a
conditional plea of guilty to the charge. Defendant's motion to
dismiss the charge was based on his contention that his due process
rights were violated in that he was not allowed to obtain an
independent test to determine the amount of alcohol in his body.
The State argued that he did not request such a test and that his
due process rights were not violated. The District Court agreed
wit-hthe State and denied defendant s motion to dismiss. Defendant
appeals. We affirm.
The only issue raised on appeal is whether the District Court
was clearly erroneous in determining that defendant's due process
rights were not violated in relation to obtaining an independent
test to determine the amount of alcohol concentration in his body.
In the early morning hours of June 23, 1991, defendant was
stopped and arrested by a Missoula County Deputy sheriff for
driving under the influence of alcohol. Defendant was taken to the
Missoula County Sheriff's Office for processing. These proceedings
were recorded by videotape.
Upon arriving at the sheriff's office, the arresting officer
explained to defendant Montana's implied consent statute found at
tj 61-8-402, MCA. The officer explained that if defendant refused
to submit to a test at that time to determine the concentration of
alcohol in his body, the officer would be required to seize his
driver's license. Additionally, the arresting officer informed
defendant that in addition to the test being offered at that time,
defendant could obtain an independent test at his own expense.
Defendant was reluctant to take the offered test and requested
instead that a test be administered by his doctor. As the
videotape recording of these proceedings indicates, defendant
apparently misunderstood the implied consent law as it was
explained to him and believed that he could refuse the test being
offered by the officer, but still keep his license by obtaining an
independent test on his own. The officer explained several times
to defendant that the independent test could be obtained in
addition to the offered test, but that refusal of the offered test
would result in the immediate seizure of his driver's license,
regardless of any independent test defendant might later take. Once
defendant understood that his refusal to take the offered test
would result in the immediate seizure of his driver's license, he
consented to take the offered test.
Following the administration of the breath test by the
officer, the videotape recording indicates that defendant did not
request an independent test in addition to the administered test.
There is no allegation that defendant requested an independent test
at any time subsequent to the conclusion of the videotape
recording. Defendant was released from jail on bond between
5 and 6 a.m., approximately two to three hours after taking the
intoxilyzer test.
Defendant, representing himself, was found guilty by a jury in
Justice Court of the offense charged. Defendant appealed to the
District Court. In District Court, defendant, as he had done in
Justice Court, moved to dismiss the driving under the influence
charge. The basis for this motion was defendant's contention that
his due process rights had been violated when he was not given an
independent test to determine the alcohol level in his body at the
time of the arrest. The issue was briefed by the parties and it
was stipulated that the District Court would decide the motion
based on the briefs and the videotape recording. The District
Court denied the defendant Is motion on the basis that defendant had
not made a timely request for an independent test. Defendant then
entered a conditional plea of guilty to the offense charged,
pursuant to 5 46-12-204(3), MCA. Thereafter, defendant filed his
notice of appeal with this Court.
Was the District Court clearly erroneous in determining that
defendant's due process rights were not violated in relation to
obtaining an independent test to determine the amount of alcohol
concentration in his body?
Defendant's due process argument rests on his allegation that
during his processing by the arresting officer he requested, but
was not allowed to obtain, an independent test. The District Court
found that defendant did not request an independent test, and
therefore, his due process rights were not violated. Our standard
of review of factual findings in nonjury criminal cases as to the
elements of the crime charged is "whether, after reviewing the
evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." State v. Bower (Mont. 1992), 833 P.2d
1106, 1110, 49 St. Rep. 586, 588. However, a district court's
factual findings on other issues in criminal proceedings will be
reviewed using the clearly erroneous standard. State v. Cope
(1991), 250 Mont. 387, 819 P.2d 1280. The clearly erroneous
standard is the appropriate standard of review in this case.
Defendant alleges that he requested an independent test at the
time of his processing on the driving under the influence charge.
Defendant further contends that upon his release, several hours
after the test administered by the officer, it was too late for him
to obtain an independent test on his own. Section 61-8-405(2),
MCA, provides that in addition to the test offered to a defendant
by the law enforcement officer:
The person may, at his own expense, have a physician
or registered nurse of his own choosing administer a
test, in addition to any administered at the direction of
a peace officer, for the purpose of determining any
measured amount or detected presence of alcohol in the
person at the time alleged, as shown by analysis of his
blood, breath, or urine. The failure or inability to
obtain an additional test by a person does not preclude
the admissibility in evidence of the test taken at the
direction of the peace officer.
This Court discussed the application of 5 61-8-405, MCA, in
our recent decision in State v. Swanson (1986), 222 Mont. 357, 722
P.2d 1155. We recognized that the right to attempt to obtain
exculpatory evidence is constitutionally guaranteed to criminal
defendants. Swanson, 722 P.2d at 1157. When a defendant is
charged with the offense of driving under the influence, this right
to obtain exculpatory evidence includes the right to obtain an
independent test to establish sobriety, even if the defendant has
refused the test offered by a peace officer. Swanson, 722 P.2d at
1157.
However, the mere fact that an independent test is not
obtained is not a violation of a defendant's due process rights.
The rule set out in Swanson was clarified in State v. Peterson
(1987), 227 Mont. 418, 739 P.2d 958. In Peterson, we stated that
the rule adopted in Swanson only applies when "(1) the defendant
has timely claimed the right to a blood test, and (2) the officer
or officers do not unreasonably impede the defendant's right to
obtain a blood test.'' Peterson, 739 P.2d at 961. Both criteria
must be satisfied in order to support an allegation of a violation
of a defendant I s due process rights. The Swanson rule will not
apply if the defendant either fails to timely request the test, or
the test is unavailable through no unreasonable acts of law
enforcement.
The District Court Judge determined, after viewing the
videotape recording, that the defendant did not timely request the
right to an independent test. It is clear upon reviewing the
videotape that defendant did request that a physician of his choice
administer a test. However, defendant did not appear to be
requesting an independent test as provided for in 5 61-8-405(2),
MCA, but was instead requesting that his physician administer the
test necessary under § 61-8-402, MCA, to avoid seizure of his
driver's license. After several attempts, the officer was able to
communicate to defendant that if the offered test was not taken,
defendant's driver's license would be seized. Once defendant
understood that he could not have a physician of his own choice
administer the test under § 61-8-402, MCA, he consented to take the
offered test and did not request an independent test of his own.
On appeal, defendant refers in his reply brief to several
statements made by the arresting officer which he argues
demonstrate that a request had been made for an independent test.
These statements indicate that the officer informed defendant that
at his request he would be taken to the hospital for a test, or
that he could phone a physician. These statements are merely a
recitation of the law which the officer was required to explain to
defendant. The statements only show that it was explained to
defendant that an independent test would be available if he
requested one. The statements do not show that defendant had in
fact requested such a test. We hold that the District Court was
not clearly erroneous in determining that defendant did not timely
request a test, and therefore, his due process rights were not
violated.
Affirmed.
we concur:
Justice Terry N. Trieweiler dissenting.
I respectfully dissent from the opinion of the majority.
After reviewing the video tape of the conversation between the
defendant and the officer who administered the breathalyzer, I
conclude that the District Court was clearly erroneous when it
found that the defendant did not timely request an independent test
to determine whether or not he was intoxicated. That recording
indicates that the following conversation took place:
MR. KLINKWAMMER: You said that I could have a doctor or
physician of my choice.
OFFICER TILLMAN: Yeah, (inaudible).
MR. KLINKHAMMER: (Inaudible) that -- I would like to
have Dr. Hoell (inaudible). He is my psychiatrist.
OFFICER TILLMAN: Okay. That Is fine. That is your test.
You are allowed to have a test at your own expense like
that. However, that is separate and above this one here.
This is the one I'm offering you pursuant to Implied
Consent.
MFt.KLINKHAMMER: I thought that I had a right to any
test according to that statement.
OFFICER TILLMAN: [Reading from Implied Consent f o m . ]
"In addition to any test administered at the direction of
a peace officer, you may, at your own expense, have a
physician or nurse of your own choosing administer a test
for the purpose of determining the amount of alcohol in
your blood.
The key words there are ! i addition to any test
In
administered at the direction of a peace officer." And
pursuant to Implied Consent, to keep your driver's
license, this is the test that I am offering you right
now.
MR. KLINKHAMMER: Okay. That means, though, in order --
in order to -- for the various tests to be valid, they
must be done at the same time. Okay?
OFFICER TILLMAN: You can be taken down to the hospital,
and at your own expense we'll draw your blood after we
get through here. So whatever you'd like.
MR. KLINKHAMMER: At the same time I'd like to have Dr.
Hoell there.
OFFICER TILLMAN: Okay. (Inaudible) if you -- if you can
call Dr. Hoell, that's fine, but right now we're not
going to do -- talk about that part of it anymore. We'll
take-care of that after mv part of it's over. That's
your wart. [Emphasis added.]
It is clear from this conversation that the defendant
requested an independent evaluation by his own physician and that
he was assured by the officer who interviewed him that such an
evaluation would be taken care of after the breathalyzer was
administered by the officer. However, the defendant remained in
the custody of the Missoula Police for two more hours and no
opportunity was afforded for the independent evaluation. He was
not free to check into a hospital on his own, and needed the
cooperation of the police department in order to exercise his right
to an independent evaluation. He requested that assistance. He
was promisedthat assistance, but it apparently was never provided.
The facts in this case are not similar to those in State v. Clark
(1988), 234 Mont. 222, 762 P.2d 853. In that case, the defendant
was given an opportunity to, and did call his physician. However,
during that conversation with his physician the defendant did not
request an independent evaluation. In that case, the Court
correctly concluded that the defendant waived the right to an
independent evaluation by not requesting one at the time when it
was most logical to do so.
In State v. Swalzson (l986), 222 Mont. 357, 722 P.2d 1155, we
recognized that the right provided for in 5 61-8-405(2), MCA, is
the right to gather exculpatory evidence and is guaranteed by the
due process clause of the Fifth Amendment to the United States
Constitution.
Any right that rises to the level of constitutional magnitude
should not depend for its enforcement on a nuance so irrelevant as
the frequency with which it is asserted, nor the order in which it
is asserted. Yet, that is the result of the majority's decision.
For these reasons, and pursuant to Swanson, I would reverse the
District court.
February 3, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Edmund F. Sheehy, Jr.
CANNON & SHEEHY
P.O. Box 5717
Helena, MT 59604
HON. MARC RACICOT, Attorney General
Cregg Coughlin, Assistant
Justice Bldg.
Helena, MT 59620
Robert L. Deschamps, 111, County Attorney
Gary L. Hendricks, Deputy
200 W. Broadway
Missoula. MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA