NO. 93-514
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
CHERYL RAE HUNTER,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Teresa M. Thompson, Modine & Thompson, Missoula,
Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General
George Schunk, Assistant Attorney General,
Helena, Montana
Robert Deschamps, 111, County Attorney; Betty
Wing, Deputy County Attorney, Missoula, Montana
1 - . .
.z Submitted on Briefs: January 13, 1994
i
:
Decided: March 1, 1994
Filed: LIAR 1 - 1994
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The driver's license of Cheryl Rae Hunter was seized pursuant
to 5 61-8-402, MCA (1991), for refusal to submit to a blood alcohol
concentration test. Hunter petitioned the District Court for the
Fourth Judicial District, Missoula County, to reinstate her license
on grounds that it was wrongly seized. The District Court denied
her petition. We affirm.
We restate the issues as:
1. Did the District Court err in placing the burden upon
Hunter to prove she was unable to take the breathilyzer test and in
ruling that she did not meet her burden of proof?
2. Did the court err by failing to acknowledge a withdrawal
by Hunter of her refusal to submit to the breathilyzer test?
Cheryl Rae Hunter was arrested for driving under the influence
on May 12, 1993. At the police station, a sheriff's deputy read
her the implied consent law and then asked if she wished to take a
breath test. She consented and made five or six attempts at
blowing into the breathilyzer, but did not blow hard enough to
activate the machine. The officer told her they could return to
the breath test later, and proceeded to conduct other sobriety
tests. When they returned to the breath test, Hunter stated that
she believed she had performed enough tests. The officer seized
her license and determined that she had refused the breath test.
Hunter petitioned the District Court for a hearing and asked
that her driver's license be reinstated pursuant to § 61-8-403, MCA
2
(1991). At the hearing, the videotape of Hunter's arrest was
admitted into evidence. The court denied Hunter's request for
reinstatement of her license because: ( l ) ' ' [ i ] t evident from [the
is
videotape] that [Hunter] did not make a sincere effort to blow into
the Breathilyzer instrument1': (2) Hunter did not request another
form of testing; and (3) Hunter did not advise the officer that she
was incapable of blowing into the breathilyzer or that she suffered
from asthma. Hunter appeals.
ISSUE 1
Did the District Court err in placing the burden upon Hunter
to prove she was unable to take the breathilyzer test and in ruling
that she did not meet her burden of proof?
Section 61-8-402, MCA (1991), provides, in relevant part:
(1) Any person who operates ...
a vehicle . ..
shall
be deemed to have given consent . ..
to a test of his
blood, breath, or urine for the purpose of determining
any ... presence of alcohol in his body[.] . The..
arresting officer may designate which test or tests shall
be administered.
(3) If a driver under arrest refuses upon the request of
a peace officer to submit to a test designated by the
arresting officer as provided in subsection (I), none
shall be given, but the officer shall, on behalf of the
department, immediately seize his driver's license.
Under 5 61-8-402(1), MCA (1991), the arresting officer
designates which test for blood alcohol concentration is adminis-
tered to a DUI defendant. The statute does not give the defendant
a right, as Hunter claims, to demand that the officer provide
another type of testing. Further, the statute contains no
requirement that the officer offer a second type of test, even if
the defendant is unable to complete the test of the officer's
choice.
The remedy available if a peace officer erroneously determines
that a person has refused to submit to the test the officer has
chosen is to petition for reinstatement of the driver's license
pursuant to 5 61-8-403, MCA, as Hunter has done. Section 61-8-403,
MCA, provides that, if the court determines the officer was wrong
in concluding that the petitioner refused to submit to the test,
the petitioner is entitled to a driver's license. A petition to
reinstate a license is a civil case, separate from the criminal
charge of driving under the influence. Maney v. State (1992), 255
Mont. 270, 274, 842 P.2d 704, 706. The burden of proof is upon the
petitioning party. See 5 26-1-401, MCA.
The only evidence of Hunter's inability to complete the
breathilyzer test was her own unsupported testimony at the hearing
in District Court. Hunter's words and actions in the videotape
contradict that testimony. She attempted to blow into the
breathilyzer five or six times without stating that she could not
complete the test because of a physical ailment. She stated to the
officer that she was not ill, was not taking medication, and did
not have epilepsy, diabetes, or any other physical defects. She
did not request another type of test of her blood alcohol concen-
tration. Instead, she argued with the officer after he informed
4
her that she did not complete the breath test. Further, Hunter
did not offer any medical evidence to support her testimony in the
District Court.
The District Court heard Hunter's testimony and viewed the
videotape of the testing procedure. After reviewing the record, we
hold that the court did not err in ruling that Hunter did not meet
her burden of proving that she was unable to perform the breathi-
lyzer test.
ISSUE 2
Did the court err by failing to acknowledge Hunter's withdraw-
al of her refusal to submit to the breathilyzer test?
Hunter argues that she retracted her refusal to try again on
the breathilyzer "when she told the Deputy that she would do
anything required of her and asked if there was anything more she
should do." The videotape shows that this occurred after Hunter
told the officer she did not wish to try the breathilyzer again
because she thought she had fulfilled her lawful obligations. In
offering generally to do anything more which she was required to
do, Hunter did not clearly withdraw her specific refusal to submit
to the breathilyzer test.
Furthermore, the officer was not bound to accept a withdrawal
of the refusal to submit to the breathilyzer test. Hunter cites
cases from other jurisdictions which have adopted the minority rule
that subsequent consent may cure a prior refusal unless the delay
would affect the test result. E.g., Gaunt v. Motor Vehicle
5
Division, Department of Transportation (Ariz. Ct. App. 1983), 666
P.2d 524, 527-28. However, the minority rule has been considered
and rejected by this Court. In Johnson v. Division of Motor
Vehicles (1985), 219 Mont. 310, 711 P.2d 815, we quoted the
following reasoning:
[Plermitting a delayed test at the subsequent offer of
the motorist would require officers to wait and see if
there was 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. [Citation
omitted. ]
Johnson, 711 P.2d at 818. We restate the rule that, in Montana,
subsequent consent does not cure a prior refusal to submit to a
blood alcohol test.
We hold that the District Court did not err in failing to
acknowledge a withdrawal by Hunter of her refusal to submit to a
breathilyzer test.
/
/I-I-b-CLP-J, c..
Chief Justice
We c o n c u r :
March 1, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by U i e States mail, prepaid, to the following
ntd
named:
Teresa M. Thompson, Esq.
Modine & Thompson
315 W. Pine St.
Missoula, MT 59802
Hon. Joseph P. Mazurek, Attorney General
George Schunk, Assistant
Justice Bldg.
Helena, MT 59620
Robert Deschamps, 111, County Attorney
Betty Wing, Deputy
Missoula County Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA