No. 96-048
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
RICKY LAWRENCE WESSELL,
Petitioner and Appellant,
v.
STATE OF MONTANA, DEPARTMENT OF
JUSTICE, MOTOR VEHICLE DIVISION,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin R. Peterson, Simonton, Howe & Schneider,
Glendive, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Brenda Nordlund, Assistant Attorney General,
Helena, Montana
Richard L. Burns, Glendive City Attorney,
Glendive, Montana
Submitted on Briefs: May 30, 1996
Decided: July 11, 1996
Filed:
Cllerk
Justice Charles E. Erdmann delivered the opinion of the Court.
Ricky Lawrence Wessell's driver's license was seized and his
driving privileges were suspended pursuant to 5 61-E-402, MCA,
Montana's implied consent law. Wessell petitioned the District
Court for the Seventh Judicial District, Dawson County, to
reinstate his license on the grounds that it was wrongly seized.
The District Court denied the petition. We reverse.
The issue on appeal is whether the District Court erred when
it concluded that Wessell had refused to submit to a test for
alcohol and therefore denied his petition challenging the
suspension of his driving privileges pursuant to 5 61-E-402, MCA.
FACTS
On November 20, 1995, Wessell was stopped by a Glendive police
officer for suspicion of driving under the influence of drugs or
alcohol, in violation of § 61-E-401, MCA, after having crossed the
center line of the street with his vehicle. Wessell consented to
the field sobriety tests which were performed. He was then placed
under arrest and transported to the Glendive Police Department for
a breath, blood, or urine test pursuant to § 61-S-402, MCA.
Upon arriving at the police station, Wessell was read the
Montana Department of Justice Implied Consent Advisory and was
asked to submit to a breath test. Wessell consented to the breath
test. The officer began the test sequence but was unable to
complete the test because the internal standards check for the
instrument failed. The officer attempted a second breath test,
however, the standards check for the instrument failed again.
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Wessell cooperated with the officer in attempting to take the
breath test.
Wessell was then asked to submit to a blood test but stated
that he was unable to submit to this method of testing. He
explained to the officer that he had a great fear of needles which
precluded him from taking the blood test. Wessell instead
voluntarily offered to submit to a urine test. The officer refused
this offer explaining that a urine test was not an option because
the Glendive Police Department did not have the appropriate means
to maintain the integrity of a urine testing sample.
Wessell declined the option to have an independent test
completed because as he understood the procedure his driving
privileges would be suspended regardless as a result of his failure
to submit to the designated blood test. The officer completed the
State of Montana Alcohol/Drug Testing Refusal Affidavit indicating
that Wessell had refused a breath, blood, or urine test pursuant to
§ 61-8-402, MCA, and seized his driver's license.
Wessell filed a petition with the District Court challenging
the suspension of his driving privileges. The District Court
ordered the Montana Department of Justice, Motor Vehicle Division
to reinstate his driving privileges pending the outcome of a
hearing on his petition. At the hearing, the parties stipulated
that there were no questions as to what factually occurred,
including the fact that Wessell had expressed a great fear of
needles. The District Court heard sworn testimony from the police
officer and from Wessell himself. The Court then issued its
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findings of fact, conclusions of law, and order which concluded
that Wessell's driver's license was properly subject to suspension
and vacated the prior reinstatement of his driving privileges.
Wessell appeals the denial of his petition.
DISCUSSION
Did the District Court err when it concluded that Wessell had
refused to submit to a test for alcohol and in denying his petition
challenging the suspension of his driving privileges, pursuant to
§ 61-8-402, MCA?
There was no factual dispute that Wessell did not take the
blood test. The issue before the District Court was whether
Wessell's conduct constituted a "refusal" under § 61-E-402, MCA,
and was therefore a legal issue. We review conclusions of law to
determine whether the district court's interpretation of the law
was correct. Carbon County v. Union Reserve Coal Co. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686.
Section 61-8-402, MCA, commonly known as the implied consent
statute, provides in part as follows:
(1) A person who operates or is in actual physical
control of a vehicle upon ways of this state open to the
public is considered to have given consent, subject to
the provisions of 61-8-401, to a test or tests of the
person's blood, breath, or urine for the purpose of
determining any measured amount or detected presence of
alcohol or drugs in the person's body if arrested by a
peace officer for driving or for being in actual physical
control of a vehicle while under the influence of
alcohol, drugs, or a combination of the two. The test or
tests must be administered at the direction of a peace
officer . . . . The arresting officer may designate
which test or tests are administered. A test for alcohol
must be given first, whether or not that test also tests
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for drugs, and if the test shows an alcohol concentration
of 0.10 or more, a test for drugs may not be given.
i3i . If . a driver under arrest refuses upon the
request of a peace officer to submit to a test or tests
designated by the arresting officer as provided in
subsection Cl), a test may not be given, but the officer
shall, on behalf of the department, immediately seize the
person's driver's license . . . .
Wessell first argues that his petition should have been
granted because he consented to the breath test. He claims that
the statute is disjunctive and does not expressly authorize more
than one test for alcohol to which he gave his consent. The State
asserts, however, that the language "test or tests" allows
consecutive tests for alcohol and that Wessell refused to submit to
the alternate blood test.
We have held that our function as an appeals court is to
ascertain what the Legislature meant and to do that, if possible,
by looking to the plain meaning of the words in the statute.
Strzelczyk v. Jett (1994), 264 Mont. 153, 157, 870 P.2d 730,
732-33.
The "test or tests" language was adopted by the Legislature in
1993 when it included the provision allowing a test for drugs once
an alcohol test has been given if the alcohol concentration is less
than 0.10. This amendment changed the testing language from
singular to plural, as it authorized a second test for the presence
of drugs. The singular nature of the language, as to a test for
alcohol, was not changed and the statute still provides that, I'm
test for alcohol must be given first, whether or not that test also
tests for drugs, and if the test shows an alcohol concentration of
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0.10 or more, [then] a test for drugs may not be given." Section
61-E-402, MCA (emphasis added). We determine that the "test or
tests" language adopted by the Legislature at the time it added the
allowance for a drug test refers to the sequential testing for
alcohol and then drugs and not for consecutive tests for alcohol
alone.
Under the plain language of the statute, therefore, only one
test for alcohol may be given. However, this limitation must be
considered in light of the definition of "test" as set forth in
Rule 23.4.201(31), ARM, which provides that a "test" for purposes
of drug and alcohol analysis must be a full and complete analysis.
The analysis for a breath test is considered complete when a breath
sample is properly delivered, "the breath analysis instrument has
executed its prescribed program, a final result is obtained, and a
printed record is produced by the breath test instrument."
Rule 23.4.201(31), ARM. The test for other biological samples
(i.e., blood and urine) is also defined as a full and complete
analysis of the sample(s). Rule 23.4.201(31), ARM. Section
61-8-402, MCA, clearly contemplates that a test for alcohol must be
a complete analysis by its language requiring the results of the
alcohol test, "if the test shows an alcohol concentration of 0.10
or more, a test for drugs may not be given."
Under the above definition, a full and complete analysis was
not achieved and therefore a valid breath test did not exist. The
officer was within the statutory constraints when he designated a
second method of testing in order to achieve a test for alcohol.
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Wessell next asserts that his refusal should be excused
because although he did not submit to the blood test he fully
cooperated with the officer and was unable to participate in the
test as a result of a disability. The State argues that neither
§ 61-8-402, MCA, nor 5 61-8-403, MCA, provides the means to
disregard a motorist's refusal to submit to a test as designated by
the officer.
We have previously stated that the purpose of § 61-8-402, MCA,
is to encourage the person arrested for DUI to cooperate and submit
to testing. Johnson v. Division of Motor Vehicles (1985), 219
Mont. 310, 313, 711 P.2d 815, 817; State v. Christopherson (1985),
217 Mont. 449, 451, 705 P.2d 121, 123. This statute serves the
state's interest in obtaining reliable and relevant evidence for
use in subsequent criminal proceedings.
We have held that certain uncooperative actions by the
motorist may comprise a refusal. A refusal to take a blood test
does not have to be express but may be implied, for example from an
individual failing to cooperate by repeatedly requesting an
attorney to be present prior to the test. Johnson, 711 P.2d at
817. It may also arise from a lack of cooperation when a motorist
gives a deficient performance of a requested test when he or she is
capable of completing the test. Hunter v. State (1994), 264 Mont.
84, 869 P.2d 787.
In the present case it is clear that Wessell's actions were
fully cooperative. Wessell consented to the breath testing
procedure for alcohol and was cooperative twice in attempting to
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achieve a valid test through the means provided. It is not
Wessell's fault that the machine failed to operate properly.
Wessell, when asked to submit to a blood test, immediately
explained that he was unable to participate in this test because of
his extreme fear of needles but was willing to submit to a urine
test. He argues that where an individual has fully cooperated but
was unable to participate in a test that refusal should be excused.
Thus Wessell argues that the state of mind or motive of the
individual asked to submit to testing is a relevant factor for the
district court to consider when determining if the refusal should
be excused. Wessell cites Matter of Griffiths (Idaho 1987), 744
P.2d 92, to support his assertion that an individual's fear of
needles may be grounds for refusing a blood test.
The Griffiths decision, interpreting Idaho's implied consent
statute, is distinguishable from the present case. Idaho's implied
consent statute specifically provides for a hearing if requested by
the motorist following the seizure of their license for refusal to
submit to testing to determine "why" the test was refused. Idaho
Code § 18-8002(4) (1984). This statute sets forth that a defendant
may have his license reinstated if he can prove any of several
factors listed, including "that, although defendant refused the
requested evidentiary test, he did so with sufficient cause."
Idaho Code § 18-8002 (1984). The Idaho Supreme Court, in applying
this statute, held that if a fear of needles is of such magnitude
to prevent the motorist as a practical matter from submitting to
the test and this fear is communicated to the officer at the time
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of the test then there may exist sufficient cause to refuse the
test. Griffiths, 744 P.2d at 100.
Section 61-E-403, MCA, however, provides for a hearing only to
determine "whether . . . the motorist refused the test." It does
not have a specific provision for inquiring as to why the refusal
occurred or for excusing the refusal if there was sufficient cause
to refuse. Although the statute does not provide the district
court with the discretion to determine if there was sufficient
cause for an individual to refuse the test, it does allow the
district court to take testimony and examine the facts of the case
to determine whether the officer was wrong in concluding that there
was a refusal to submit to a test. Section 61-8-403(4), MCA. This
section allows the district court the latitude to consider whether
the individual was willing but unable to participate in the test as
a result of a disability or whether the individual was simply
unwilling to cooperate and refused the test.
We recently addressed § 61-8-403(4), MCA, in Hunter, 869 P.2d
787. In that case, we stated that the burden of proving that the
officer was wrong in concluding that the petitioner refused to
submit to the test was that of the petitioner. Hunter, 869 P.2d at
789. See Section 26-l-401, MCA. Hunter consented to submitting to
a breath test. After five or six failed attempts in which she did
not blow hard enough to activate the machine the officer proceeded
to conduct other sobriety tests. When they returned to the breath
test she stated that she had performed enough tests and would not
make another attempt. The officer thus determined that she had
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refused the test and seized her license. We held that Hunter
failed to meet her burden of proof as she did not inform the
officer at the time of the test of any disability which prevented
her from completing a valid test, nor did she introduce any medical
evidence at the hearing to indicate that she was unable to perform.
Hunter, 869 P.2d at 789-90.
In the present case, it was not contested that Wessell had a
valid fear of needles which prevented him from being able to submit
to a blood test and therefore we accept this as stipulated. The
record shows that he was willing to consent to a test for alcohol
but was prevented from doing so by a psychological inability to
perform resulting from his disabling fear of needles, which he
immediately disclosed to the officer. We determine that under the
facts of this case, this psychological inability to perform the
test is the equivalent of a physical disability which precludes an
individual from participating in or completing a valid test
regardless of their willingness. For example, if an individual has
asthma and was physically unable to complete a breath test, that
inability would not be considered a refusal under § 61-8-403(4),
MCA, and our rationale in Hunter.
The conclusion of the District Court that Wessell refused the
test was based upon the officer's testimony, the Implied Consent
Advisory Form signed by the officer, and the petitioner's testimony
that he did not submit to the blood test. The record also shows
that Wessell cooperated to his fullest physical and mental
abilities but was precluded from participating in the test as a
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result of a stipulated psychological inability, which in this case
constitutes a disability. We hold that the District Court erred in
its interpretation of 5 61-8-403(4), MCA, by concluding that
Wessell's inability to participate in the test regardless of his
willingness was a "refusal."
Reversed and remanded for further proceedings consistent with
this opinion.
<
Justice
We concur:
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