No. 94-302
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
CITY OF WHITEFISH,
Plaintiff and Respondent,
-vs- MAY 1 -i '1995
CAROL PINSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen J. Nardi; Sherlock & Nardi, Kalispell,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer
Anders, Ass't Attorney General, Helena, Montana
Submitted on Briefs: February 16, 1995
Decided: May 11, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Carol Pinson (Pinson) appeals from the Order of Judgment and
Sentence convicting her of a violation of 5 61-E-401, MCA, entered
by the Eleventh Judicial District Court, Flathead County. We
reverse, holding that the District Court erred in denying Pinson's
motion to dismiss the charge.
The specific issue before us is whether Pinson's due process
rights were violated by the failure of the City of Whitefish to
comply with a request for an independent blood test.
In the early morning hours of December 10, 1992, Officer Geno
Cook (Cook) of the City of Whitefish Police Department (City)
initiated a traffic stop of Pinson's vehicle. He ultimately placed
Pinson under arrest and transported her to the City police station
for booking. Cook videotaped the booking procedure. Specific
facts relating to events occurring during the videotaped booking
procedure are set forth in our discussion of the issue.
Cook issued a citation charging Pinson with driving under the
influence of alcohol in violation of § 61-8-401, MCA. Pinson moved
the City Court of Whitefish to dismiss the charge, on the basis
that her due process rights were violated by Cook's failure to take
her to obtain a blood test as she requested. The City Court denied
the motion and ultimately found Pinson guilty of the charged
offense. Pinson appealed to the District Court.
Pinson filed a motion to dismiss in the District Court on
essentially the same grounds she raised in the City Court. Both
Pinson and the City briefed the issue and the District Court held
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an evidentiary hearing on Pinson's motion. The videotape was
admitted into evidence. Pinson testified on her own behalf, as did
her friend Alyse Ryan (Ryan), who had been present at the police
station on the morning of Pinson's arrest. Cook testified on the
City's behalf. The court viewed the videotape after the hearing
was concluded.
The District Court denied Pinson's motion to dismiss by minute
entry and subsequently found her guilty of the charged offense.
The court imposed sentence and stayed execution of the judgment of
conviction pending appeal. Pinson appeals.
Were Pinson's due process rights violated by the City's
failure to comply with a request for an independent blood
test?
Pinson alleges that she requested a blood test during the
booking procedure, Cook said the test would be obtained, and the
blood test was not obtained. Relying primarily on State v. Swanson
(1986), 222 Mont. 357, 722 P.2d 1155, and State v. Peterson (1987),
227 Mont. 418, 739 P.2d 958, she argues that her due process right
to attempt to obtain exculpatory evidence was violated. Contending
that Pinson did not make a timely request for a blood test, the
City asserts that the District Court properly denied Pinson's
motion to dismiss pursuant to Peterson and State v. Klinkhammer
(1993) I 256 Mont. 275, 846 P.2d 1008.
The law is clear that a person accused of a criminal offense
has a constitutional right to attempt to obtain exculpatory
evidence. Klinkhammer, 846 P.2d at 1010-1011; citing Swanson, 722
P.2d at 1157. When the offense charged involves intoxication, we
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held in Swanson that this right encompasses the accused's right "to
obtain an independent blood test to establish his sobriety
regardless of whether he submits to a police designated test."
Swanson, 722 P.2d at 1157.
We clarified the Swanson rule in Peterson. There, we
determined that the rule applies only when (1) the accused timely
asserts the right to an independent blood test; and (2) the law
enforcement officer does not unreasonably impede the right to
obtain the test. Peterson, 739 P.2d at 961. In the case presently
before us, only the first Peterson criterion is at issue.
We apply the clearly erroneous standard in reviewing a court's
finding regarding whether an accused made a timely request for an
independent test. & Klinkhammer, 846 P.2d at 1010; citing State
v. Cope (1991), 250 Mont. 387, 819 P.2d 1280. Here, the District
Court denied Pinson's motion via minute entry and without entering
findings or providing its rationale. Because the matter was
submitted to the court solely on the basis of whether Pinson timely
requested an independent blood test, however, the District Court
necessarily found that no timely request was made. Thus, we
examine the record before us to determine whether the court's
finding is clearly erroneous.
The record regarding Pinson's request for an independent blood
test reflects the following. The videotape of the booking
procedure establishes that Pinson initially was somewhat confused
regarding the breath test designated by Cook and whether she wanted
to submit to that test. Cook explained the breath test requirement
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to Pinson several times and made it clear that an independent test
would not be in lieu of the breath test he had designated. Pinson
stated "Let's do blood." Thereafter, Cook advised that he was
"marking that down as a refusal," and Pinson responded that she did
not know what to do. Cook then stated: "We'll go get blood in a
little while, but you realize it will be at your own expense."
Pinson replied, "I don't care." No further discussion regarding
either the breath or blood test is contained on the videotape. The
booking procedure was completed and Pinson was placed in a cell.
No further videotaping occurred.
As evidenced by the videotape, Pinson's request for a blood
test was clearly stated and timely made. Moreover, Cook
affirmatively told Pinson that they would get the requested test.
In addition, Pinson testified at the evidentiary hearing that
she refused the breath test and requested the blood test, and that
Cook said he would take her for the test. Cook's own testimony
concedes the issue:
Q. And do you recall that-- I mean she initially was
very confused and didn't know what to do; right?
A. Yes, sir.
Q. But then she said exactly, I quote, "Let's do blood,"
right?
A. Yes, sir.
Q. And your reply was, quote, "We will go get blood in
a little while, but you realize it is at your own
expense"?
A. Yes, sir.
Q. And she replied, "I don't care"?
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A. Yes, sir.
Q. You said, "1 will take you to get blood." YOU
promised her you would take her to the hospital to give
blood?
A. That is my job. That is part of the statute that I
have to follow, yes, sir.
.
Q. So my question is, at that point there was a request
to get blood, and you had agreed to it; right?
A. Yes, sir.
. . . .
Q. At that point she has requested, and you have
consented to her request for a blood test; have you not?
A. Yes, sir.
On this record, the City's characterization of the videotape
as evidencing something less than a request by Pinson for the blood
test is specifically belied by the videotape itself and by Cook's
testimony. Further, the City's effort to recharacterize Pinson's
clear and timely request--by relying on certain responses she
provided at the evidentiary hearing some four months after the
videotape was made--is inappropriate. As we recently stated in a
different context, the government "may not 'undo' clear notice
provided at a specific point in time by relying on testimony given
three months later." See Magone v. Froehlich (Mont. 1995),
P.2d _, _t 52 St.Rep. 240, 243.
Nor, given this record, is the City's reliance on the facts of
Klinkhammer well placed. There, the videotape evidenced the
defendant requesting that a physician of his choice administer a
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test; the defendant did not appear to be requesting an independent
test. Klinkhammer, 846 P.2d at 1009. Moreover, once the defendant
understood that he was not entitled to his physician of choice to
administer the officer-designated test, he consented to the offered
test and did not request an independent test. Klinkhammer, 846
P.2d at 1010. Here, the videotape and the testimony indicated that
Pinson requested the blood test and Cook agreed that it would be
done. The officer-designated test was refused.
On the basis of the record before us, we conclude that the
District Court's implicit finding that Pinson did not timely
request an independent blood test is not supported by substantial
credible evidence and is clearly erroneous.
Finally, we observe that Pinson and the City offered
conflicting testimony to the District Court regarding a
conversation between Pinson and Cook which occurred at Pinson's
cell after the videotaping had ceased. Generally, Pinson's
version--confirmed by her friend Ryan--was that she re-requested
the independent blood test at that time and Cook refused the
request. In Cook's version, premised on the lack of a previous
timely request for the independent blood test, Pinson remained
indecisive about the independent test during the later
conversation, even when urged by Ryan to get the test; only after
that did Cook break off further discussion of the blood test.
The parties reargue the conflicting testimony about the
subsequent conversation here. Given our conclusion that Pinson
clearly and timely requested an independent blood test during the
videotaped booking procedure and the City's sole reliance on the
lack of such a request at that time, we need not address the
conflicting versions of the later conversation.
We hold that, on the basis of the record before us in this
case, the City's failure to comply with Pinson's request for an
independent blood test violated her due process right to attempt to
obtain exculpatory evidence. On that basis, we further hold that
the District Court erred in denying Pinson's motion to dismiss.
Reversed and remanded with instructions to the District Court
to vacate its Order of Judgment and Sentence and enter an order
dismissing the charge.