96-366
No. 96-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DENNIS STRAND,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen J. Nardi (argued); Sherlock & Nardi,
Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Tammy Plubell (argued), Assistant Attorney General,
Helena, Montana
Glen Neier, Kalispell City Attorney, Kalispell, Montana
Argued: October 1, 1997
Submitted: October 29, 1997
Decided: December 16, 1997
Filed:
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__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
Appellant Dennis Strand (Strand) appeals from the final judgment and order of
the
Eleventh Judicial District Court, Flathead County. The District Court accepted
Strand's
conditional plea of guilty to the charge of driving under the influence of alcohol
and
sentenced him to 60 days in jail, all but one suspended, upon certain conditions,
including
his payment of a $350 fine. We reverse and remand.
Strand raises two issues on appeal. We determine that issue 1 is dispositive
and,
therefore, we need not address issue 2. Therefore, we address whether Strand's due
process rights were violated when the arresting officers failed to inform him that
he had
the right to obtain an independent blood test.
Factual and Procedural Background
In April 1995, Strand was stopped by two officers of the Kalispell Police
Department on suspicion of driving under the influence of alcohol. The officers
noted
that Strand had slurred speech, bloodshot eyes, and smelled of alcohol. Strand had
to
lean against his vehicle for balance, could not recite the alphabet correctly, and
had
difficulty following instructions. The officers arrested Strand for driving under
the
influence of alcohol.
At the Kalispell Police Department, one of the officers said to Strand, "I need
you
to take a breath test." Strand consented and submitted to the BAC test. The results
indicated that Strand had a BAC of .215. Pursuant to the express policy of the
Kalispell
Police Department, officers read the implied consent advisory form only when the
arrested person first refuses to submit to a BAC test. Because Strand consented to
the
test, neither officer read Strand an implied consent advisory form before asking
him to
submit to the test or before administering the test. Thus, Strand was not advised
that he
could obtain an independent blood test for the purpose of determining his blood
alcohol
concentration.
Strand was charged in the Kalispell City Court with driving under the influence
of alcohol, a misdemeanor. Subsequently, he filed a motion to dismiss, arguing that
the
State had violated his right to due process under the U.S. and Montana constitutions
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by
failing to inform him that he had a right to obtain an independent blood test. The
City
Court held that Strand's due process rights were violated because he was not advised
of
his right to obtain an independent blood test and he did not knowingly and
voluntarily
agree to take a BAC test. The City appealed to the District Court. Strand again
filed a
motion to dismiss; however, the District Court denied the motion and accepted
Strand's
conditional plea of guilty to the charge of driving under the influence of
alcohol.
Standard of Review
The issue of whether Strand's due process rights were violated is a question of
law. This Court's standard of review of a district court's conclusions of law is
whether
the court's interpretation of the law is correct. State v. Miller (1996), 278 Mont.
231,
233, 924 P.2d 690, 691; Carbon County v. Union Reserve Coal Co., Inc. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686.
Discussion
I
Every person who operates a motor vehicle in the state of Montana has impliedly
consented to submit to a blood or breath test for the purpose of determining the
presence
or amount of alcohol or drugs in the body. Section 61-8-402(1), MCA. If a person
refuses to submit to the test designated by the arresting officer, "a test may not
be given,
but the officer shall, on behalf of the department, immediately seize the person's
driver's
license." Section 61-8-402(4), MCA (1993). In addition to the test administered at
the
direction of the officer, a person may obtain an independent test for determining any
measured amount or detected presence of alcohol in the person's system. Section 61-
8-
405(2), MCA. The right to obtain an independent blood test is both statutory and
required by due process. See õ 61-8-405(2), MCA; State v. Swanson (1986), 222 Mont.
357, 722 P.2d 1155.
The Kalispell Police Department uses an implied consent advisory form to explain
the substance of Montana's implied consent statutes to the accused. However, the
express
policy of the department requires that officers not read the form unless or until the
accused refuses to submit to the test designated by the officer. If the accused
agrees to
submit to the test, the officers do not read the consent form, and the accused is
never
informed of his or her right to obtain an independent blood test. In this case, the
arresting officer told Strand that he "needed" him to take a BAC test, and Strand
immediately agreed. Thus, at no time was Strand read an implied consent advisory
form
or otherwise made aware of the implied consent laws of Montana.
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Strand argues that the State violated his right to due process of law. He
contends
that by adopting a procedure by which he was not informed of his right to obtain an
independent blood test unless he refused the officer's test, the Kalispell Police
Department, through its rules and regulations, denied him his right to obtain
exculpatory
evidence in direct contravention of this Court's holding in State v. Swanson
(1986), 222
Mont. 357, 722 P.2d 1155. The State argues that Swanson did not create an
affirmative
duty to inform a defendant of his statutorily-created right to obtain an independent
test
and that the officers' failure to do so did not amount to a violation of due process.
In Swanson, the defendant refused to submit to a breath test, as requested by
the
arresting officer, but asked to be taken to the hospital for a blood test. Swanson,
722
P.2d at 1156. After blood was drawn, the officer gave the sample to the defendant,
informed him that it was his responsibility to have the sample analyzed, and took the
defendant to the police station. Swanson, 722 P.2d at 1156. During booking, the
sample
was taken from the defendant with the rest of his personal belongings and left on a
counter in the booking room for two days. Since the blood sample was not properly
refrigerated, it could not be analyzed, and the defendant's BAC was never
determined.
Swanson, 722 P.2d at 1156.
On appeal, the defendant argued that he was denied due process because the State
had deprived him of a reasonable opportunity to gather exculpatory evidence.
Swanson,
722 P.2d at 1157. This Court held that an accused has a constitutional due process
right
to obtain exculpatory evidence. Swanson, 722 P.2d at 1157. Further, we held that
when
a crime involves intoxication, the right to gather exculpatory evidence includes "a
right
to obtain a sobriety test independent of that offered by the arresting officer,"
regardless
of whether the accused agrees to submit to the officer's test. Swanson, 722 P.2d at
1157.
We determined that the defendant's blood sample was taken from him as part of a
routine
inventory search and held that "[w]hile the police have no duty to assist an accused
in
obtaining independent evidence of sobriety, they cannot frustrate such an effort
through
either affirmative acts or their rules and regulations." Swanson, 722 P.2d at 1158.
We agree with the State that this Court's holding in Swanson did not go so far
as
to create an affirmative duty to inform an accused of his right to an independent
blood
test. Rather, this Court recognized that an accused has a constitutional due
process right
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to obtain exculpatory evidence and held that the State cannot act in a manner or
adopt any
procedure that frustrates this effort. We now take the next step and hold that due
process
requires that the arresting officer inform the accused of his or her right to obtain
an
independent blood test, regardless of whether the accused consents to the test
designated
by the officer.
While some citizens of Montana may be aware of the obligation they undertake
by driving -- to consent to a blood or breath alcohol test or forfeit their licenses
-- most
are not aware of their corresponding right to obtain an independent blood test.
Because
of the evanescent character of blood alcohol evidence, the decision to obtain an
independent test must be made in a timely fashion. Montano v. Superior Court (Ariz.
1986), 719 P.2d 271, 275. Therefore, unless the defendant is apprised of this right
while
the blood can still be analyzed, the right is rendered meaningless.
The accused must be informed of the right to obtain an independent blood test at
the time of the arrest. A person accused of driving under the influence of alcohol
does
not have a right to counsel before submitting to a BAC test and, therefore, is
foreclosed
from conferring with counsel about his or her rights and duties under Montana's
implied
consent laws until after consent to the test has been given or withheld. State v.
Armfield
(1984), 214 Mont. 229, 693 P.2d 1226. Therefore, the arresting officer is the only
person in a position to inform the defendant of this right, and we now hold that the
officer has an affirmative duty to do so.
The current policy of the Kalispell Police Department is to read an implied
consent
advisory form to an accused only if he or she has refused to submit to a BAC test.
Although the substance of the implied consent advisory form is not before us, the
State
concedes that had Strand been read this form, he would have been advised of his right
to obtain an independent blood alcohol test. The State admits that:
it would have been preferable for the officer to read Strand the contents of
the implied consent statutes even though Strand immediately agreed to
submit to the breath test when the officer said: "I need you to take a breath
test." If the officer had read the contents of the statutes, he undoubtedly
would have informed Stand of his right to obtain an independent test at his
own expense.
We determine that it is not only preferable for the officer to advise all persons
who have
been arrested for driving under the influence of their right to obtain an
independent blood
test, but also required by due process. Before a person can make an intelligent
decision
as to whether to request an independent blood test, he or she must first be made
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aware
that such a test is an option.
II
Having determined that Strand's due process rights were violated, we must
determine the appropriate remedy for this violation. Strand urges us to reverse the
District Court's denial of his motion to dismiss. The State argues that the more
appropriate remedy is to suppress the results of the BAC test. We agree with the
State
that the appropriate remedy is to suppress the results of the BAC test, which were
obtained without first advising Strand of his right to an independent blood test.
As discussed in issue one, Montana's implied consent statutes set forth the
obligations of a person operating a motor vehicle in this state and that person's
corresponding rights. See õõ 61-8-401 through -422, MCA. The dissent questions the
wisdom of suppressing the BAC test results because they were not obtained illegally.
However, breathalyzer evidence is unlike most other evidence in that the State's
rights
to obtain such evidence and to suspend the person's license if he or she refuses the
test
are derived from statutes, the implied consent law. See õõ 61-8-401 through -422,
MCA. That same statutory scheme provides that an accused has a corresponding right
to obtain an independent blood test. Section 61-8-405(2), MCA. Fairness thus
dictates
that the State not be allowed to utilize scientific evidence of intoxication (i.e.,
tests of a
person's blood or breath) if, through omission of the State, the accused is not
advised of
the right to obtain his or her own scientific evidence of blood alcohol
concentration.
Juries give great weight to the results of BAC tests, and, thus, "the state cannot be
allowed to use evidence which the defendant is unable to rebut because [he] was not
apprised of [his] right to independent testing." State v. Turpin (Wash. 1980), 620
P.2d
990, 993.
The dissent argues that although Strand's rights were violated when the officers
failed to advise him of his right to obtain an independent blood test, no prejudice
resulted
because Strand did not challenge the evidence of the officers' observations, the
results of
the field sobriety tests, or the BAC test results, all of which indicated that
Strand was
intoxicated. This argument assumes that the sole value of an independent blood test
is
to rebut the State's evidence. While a blood test may certainly have potential as
rebuttal-
type evidence, it can also have independent value as compelling scientific evidence,
regardless of the evidence introduced by the State.
In other words, it is entirely possible that despite his choosing not to
challenge the
officers' observations as to breath, eyes, and gait or the results of field sobriety
tests, a
defendant might produce a blood test conclusively showing that his blood alcohol
concentration was below the legal limit. Irrespective of whether Strand challenged
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the
State's evidence, he was prejudiced when the officer failed to advise him of his
right to
obtain potentially exculpatory evidence. Thus, we determine that Strand must be
given
the opportunity for a new trial without the BAC test results.
We recognize that in Swanson, 722 P.2d at 1158, this Court held that "[d]
ismissal
of the case with prejudice is the appropriate remedy because the State's action
precluded
a fair trial by preventing Swanson from gathering exculpatory evidence." However,
that
case differs factually from the instant case and can be distinguished. Unlike
Strand,
Swanson had refused to take the BAC test. Swanson, 722 P.2d at 1156. The State did
not obtain any scientific evidence of intoxication, and, thus, there was no such
evidence
to suppress. However, in cases in which the State succeeds in obtaining a blood or
breath test pursuant to the implied consent law, the appropriate remedy for the
State's
failure to advise an accused of the corresponding right to obtain an independent
blood test
is to suppress the results of the State's test. It should be noted that our
rationale for
suppressing the BAC test results has no application outside the context of a
statutory
scheme granting both the State and the defendant corresponding rights to obtain a
specific
form of evidence.
The dissent also notes that õ 61-8-405(2), MCA (1993), provides that a person's
failure or inability to obtain an additional blood test "does not preclude the
admissibility
in evidence of the test or tests taken at the direction of a peace officer." We
find that this
provision is applicable only where the defendant's failure or inability to obtain a
blood
test was not the result of an action or omission by the State.
For the above-stated reasons, we reverse the decision of the District Court,
order
the results of the BAC test suppressed, and remand for a new trial.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
Justice James C. Nelson concurs in part and dissents in part.
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I concur in our discussion and analysis of issues 1 and 2 under I. I dissent,
however, with our discussion and with the result reached under II.
Having determined that Strand's right to due process was violated, our next
focus,
contrary to the majority opinion, should not be on a determination of the
appropriate remedy for
this violation, but, rather, we should decide whether the defendant has demonstrated
any
prejudice by reason of the violation of this constitutional right. I conclude that
no prejudice has
been shown on the record here, and, furthermore, that no legal basis exists on which
to suppress
the results of the BAC test or to remand for a new trial.
It is black-letter law that þ[a] cause may not be reversed by reason of any
error
committed by the trial court against the convicted person unless the record shows
that the error
was prejudicial.þ Section 46-20-701(1), MCA. Moreover, we routinely hold that a
criminal
conviction will not be reversed unless the error prejudiced the substantial rights
of the defendant;
that when the record is sufficient to establish the guilt of the defendant, a new
trial will not be
granted even though there was error, unless it clearly appears that the error
complained of
actually impaired the defendant's right to a fair trial; that prejudice in a
criminal case will not
be presumed; and that the defendant must demonstrate prejudice from the record.
State v.
Huerta (Mont. 1997), ___ P.2d ___, ___, 54 St.Rep. 1133, 1135-36 (citations
omitted). We
have referred to õ 46-20-701, MCA, and to these well-settled principles of criminal
law in cases,
too numerous to cite, when affirming convictions where error is shown--even where
that error
is of constitutional proportion. For example, we recently held in Huerta that a
violation of
defendant's due process rights involving several different trial issues did not
warrant reversal
where defendant failed to demonstrate prejudice. Huerta, 54 St.Rep. 1133.
We have defined exculpatory evidence as that which "tends to clear the accused
of guilt
and vitiate the conviction." State v. Hatfield (1995), 269 Mont. 307, 311, 888 P.2d
899, 902
(citations omitted). While undeniably, the accused is entitled to discover and to
gather such
evidence, we have also placed upon the defendant a duty to show that, where his
right to obtain
exculpatory evidence has been violated, there is a reasonable probability that had
the information
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been provided, the result of the trial or sentencing would have been different.
Kills on Top v.
State (1995), 273 Mont. 32, 42, 901 P.2d 1368, 1374-75 (citing Kyles v. Whitley
(1995), 514
U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490, 506). See also State v. Cox
(1994),
266 Mont. 110, 118-19, 879 P.2d 662, 667-68; State v. West (1992), 252 Mont. 83,
87, 826
P.2d 940, 943 (quoting California v. Trombetta (1984), 467 U.S. 479, 488-89, 104 S.
Ct. 2528,
2534, 81 L.Ed.2d 413, 422); and State v. Halter (1989), 238 Mont. 408, 412, 777 P.2d
1313,
1316 (quoting Trombetta, 467 U.S. at 488-89).
In the case at bar, the record is completely devoid of even a minimal
demonstration by
Strand that, had he obtained the independent test to which he was entitled, the
evidence would
have been, in fact, exculpatory--i.e., that a reasonable probability existed that it
would have
cleared him of guilt or vitiated his conviction. Strand never challenged the
arresting officer's
pre-arrest and post-arrest observations indicating that he was intoxicated; he never
challenged
the field tests which showed the same thing; and he never challenged the results of
the BAC test
which demonstrated that he was legally intoxicated. In fact, at oral argument,
Strand conceded
that he could still be convicted of DUI without any test results whatsoever based on
other
evidence of intoxication.
Had Strand shown that any part of the overwhelming evidence of his intoxication
was
subject to dispute or attack, he would have a legitimate argument that a reasonable
probability
existed that the evidence obtained by an independent test would have been
exculpatory and that
without such evidence his defense was prejudiced. Absent a record of such a
challenge,
however, there is simply no demonstration here that an independent test would have
proved
anything other than what has already been clearly shown--i.e., that Strand was
legally
intoxicated. Nothing in the record of this case shows that a reasonable probability
existed that
the independent test would have been, in fact, exculpatory. Thus, while Strand's
right to due
process was violated, he failed to demonstrate prejudice by reason thereof.
Accordingly, his
conviction should be affirmed.
That said, I also disagree with our decision that the appropriate remedy for
the violation
of Strand's right to due process is suppression of the results of the BAC test he
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voluntarily took.
Suppression of evidence is, of course, mandated where evidence has been obtained by
an
unlawful search and seizure. Section 46-13-302, MCA. We have recently made it
clear that
"suppression" is a term used where otherwise relevant evidence is excluded because
it has been
illegally obtained. See State v. Strizich (Mont. 1997), ___ P.2d ___, ___, 54 St.
Rep. 1241,
1244-46.
Absolutely nothing in the record of the case at bar indicates that the BAC test
which
Strand took at the station-house was obtained unlawfully or illegally. In fact, the
record clearly
demonstrates the contrary. In accordance with the implied consent statute, õ 61-8-
402, MCA,
Strand took the breath test when requested to do so by the arresting officer. No
evidence
shows that the gathering of this evidence was improper, unlawful, illegal or in
violation of any
of Strand's constitutional rights.
Other than State v. Turpin (Wash. 1980), 620 P.2d 990, the majority cites no
authority
for the proposition that evidence can be suppressed notwithstanding that the law was
not violated
in the gathering of that evidence and where the competency of the evidence itself
was not
challenged. I do not believe that even Turpin is authority for that principal as a
general rule,
given that the court's decision in that case was rendered in the context of a
Washington statute
that affirmatively required the peace officer to advise the DUI arrestee of his
right to obtain
additional chemical tests. Turpin, 620 P.2d at 992. No such statutory obligation
for giving
advice exists in Montana's statutes. See õõ 61-8-402 and 61-8-405, MCA. In fact, õ
61-8-
405(2), MCA (1993), specifically provided that "[t]he failure or inability to obtain
an additional
test by a person does not preclude the admissibility in evidence of the test or
tests taken at the
direction of a peace officer. [Emphasis added.]þ
While punishing the police by throwing out legally obtained, competent evidence
because
the officer failed to advise the defendant of his right to obtain independent
evidence of the same
type may facially have a sort of "eye for an eye" appeal, such a novel approach is
not only
legally unsound, but also sets a very dangerous precedent, indeed. Does a defendant
now have
an argument that the prosecution should not be permitted to use evidence legally
obtained from
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a crime scene or evidence lawfully taken from the person of a victim because he, the
defendant,
though having as much right to gather possibly exculpatory, countervailing evidence
of the same
sort, was unable to do so (a) because the police never told him he had that right
and (b) because
by the time he learned of this right, the crime scene had been cleaned up or
otherwise
contaminated or because evanescent evidence from the victim's person has long since
disappeared?
The bottom line is that if Strand's constitutional right to due process was
violated in this
case (and I agree that it was) and if he demonstrated that the violation of this
constitutional right
prejudiced his defense, then the appropriate remedy is reversal of his conviction
and dismissal
of the charges against him (as we correctly ruled in Swanson), not the suppression
of legally
obtained evidence and remanding for a new trial without that evidence.
Strand was obligated to show prejudice--i.e., that had he been timely advised
of his right
to obtain an independent test, he not only would have taken the test, but also that
a reasonable
probability existed that the test results would have been exculpatory. Here, since
Strand failed
to demonstrate any prejudice by reason of the violation of his right to due process,
his conviction
should be affirmed.
/S/ JAMES C. NELSON
Chief Justice J. A. Turnage joins in the foregoing concurrence and dissent.
/S/ J. A. TURNAGE
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion holding that due process
requires an
arresting officer to inform a DUI arrestee of the right to obtain an independent
blood test.
I agree that it is preferable for law enforcement officers to advise DUI
arrestees of their
statutory right to an independent test. I disagree that the failure to do so rises
to a constitutional
due process violation. Moreover, I note that the Court cites not a single case from
another
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jurisdiction in which such a holding has been made. Indeed, the only case to which
this Court
was cited for such a proposition, Montano v. Superior Court Pima County (Ariz.
1986), 719
P.2d 271, subsequently was limited to its specific facts. See, e.g., State v.
Superior Court in
and for County of Yavapai (Ariz. App. 1994), 878 P.2d 1381.
I would follow the North Dakota Supreme Court's lead and hold that a failure to
inform
a DUI arrestee of the right to an independent test "does not rise to the level of a
constitutional
denial of due process." See State v. Rambousek (N.D. 1984), 358 N.W.2d 223, 230. I
dissent
from the Court's holding to the contrary.
/S/ KARLA M. GRAY
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