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No. 00-748
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 69
CITY OF MISSOULA,
Plaintiff/Respondent,
v.
JOHN FERGUNSON,
Defendant/Appellant.
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:
Andrew F. Scott, Scott Law Office, Missoula, Montana
For Respondent:
Joseph P. Mazurek, Montana Attorney General, Micheal S. Wellenstein, Assistant
Montana Attorney General, Helena, Montana; Gary Hendricks, Assistant Missoula City
Attorney, Missoula, Montana
Submitted on Briefs: March 15, 2001
Decided: April 19, 2001
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Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 John Fergunson (Fergunson) pled guilty in Missoula Municipal Court to driving under
the influence of alcohol and operating a motor vehicle the wrong way on a one-way street,
reserving his right to appeal the denial of his motion to suppress the evidence from his
breath test. The Fourth Judicial District Court, Missoula County, affirmed the decision of
the Municipal Court, and Fergunson appeals to this Court. We affirm.
¶2 The only issue on appeal is as follows:
Did the Municipal and District Courts correctly deny Fergunson's motion to
suppress the results of his breath test, which was premised on the grounds that he
was provided misleading information about the ramifications of his failure to take
the test?
FACTUAL BACKGROUND
¶3 During the early morning hours of September 25, 1999, Fergunson was arrested for
driving under the influence of alcohol and driving the wrong way down a one-way street
in downtown Missoula, Montana. After his arrest, an officer read Fergunson an implied
consent advisory form. It stated in pertinent part:
3. If you refuse to take the tests, your driver's license will be seized and suspended
for six (6) months.
4. If you were arrested for DUI in the past five (5) years, refused to take a test then,
and refuse to take the tests again today, your driver's license will be revoked for one
(1) year.
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5. You cannot get a probationary or necessary use license if you refuse to take the
test(s). If you refuse the test you may appeal the action taken against your driver's
license in district court.
***
7. If you are from another state and you refuse to take the tests, the Department will
send your driver's license to your home state and tell them that you refused the tests.
After being read the implied consent advisory form, Fergunson agreed to submit to a
breath test and his results indicated an alcohol concentration of .183.
¶4 Fergunson was subsequently charged in Missoula Municipal Court with driving under
the influence of alcohol and operating a motor vehicle the wrong way on a one-way street.
On November 2, 1999, Fergunson filed a motion to suppress the results of his Breathalyser
test. Fergunson argued that because he had an Iowa driver's license the implied consent
advisory form read to him misstated the law and, thus, he was unlawfully coerced into
taking the breath test. On March 10, 2000, the Municipal Court denied his motion to
suppress. Fergunson entered a conditional guilty plea and appealed to the District Court.
On September 11, 2000, the District Court issued an opinion and order affirming the
Municipal Court's order denying Fergunson's motion to suppress. Fergunson now appeals
the denial of his motion to suppress to this Court.
DISCUSSION
¶5 Did the Municipal and District Courts correctly deny Fergunson's motion to
suppress the results of his breath test, which was premised on the grounds that he
was provided misleading information about the ramifications of his failure to take
the test?
¶6 We review a district court's denial of a motion to suppress to determine whether its
findings of fact are clearly erroneous and whether those findings were correctly applied as
a matter of law. State v. Simmons, 2000 MT 329, ¶ 9, __ Mont. ___, ¶ 9, 15 P.3d 408, ¶ 9.
¶7 Fergunson argues that the implied consent advisory form read to him misstates the law
as it applies to nonresidents, since it fails to inform them that only their driving privileges
in the State of Montana will be suspended. Fergunson argues that this misstatement
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constitutes an unlawful coercion when it leads a person into taking a breath test without
having all of the correct relevant information upon which to make an informed decision.
Fergunson cites two Georgia cases in support of his argument: Deckard v. State, 436 S.
E.2d 536 (Ga. App. 1993); and State v. Coleman, 455 S.E.2d 604 (Ga. App. 1995). The
State counters that this Court recently rejected a similar argument in Simmons.
¶8 Simmons is factually and legally similar to this case. Simmons was a Nevada resident
with a Nevada driver's license. Simmons, ¶ 11. He argued that the information he was
given about the consequences of refusing a breath testing was "completely erroneous and
misleading" because "the State of Montana has no authority to seize or suspend [his]
Nevada driver's license." Simmons, ¶ 11. Simmons also cited the same line of Georgia
cases offered by Fergunson in support of his argument. Simmons, ¶ 12. This Court,
however, concluded that "Simmons was provided with sufficiently accurate information as
to the ramifications of a refusal to submit to testing." Simmons, ¶ 18. We further found that
the advisory form was not erroneous and did not affirmatively mislead Simmons.
Simmons, ¶ 18.
¶9 We conclude that our holding in Simmons controls this case. The only significant
differences between the case at bar and Simmons weigh against Fergunson. Fergunson was
informed that "[i]f you are from another state and you refuse to take the tests, the
Department will send your driver's license to your home state and tell them that you
refused the test." Simmons was not given any such instruction. Moreover, Fergunson does
not argue, as Simmons did, that his Iowa license would not be suspended under the same
circumstances. Rather, he argues that the terms of license suspension in Iowa are different
than in Montana, and that he was therefore coerced by the threat of a greater suspension
here than he would have faced in his home state.
¶10 In Iowa, a person refusing an alcohol test has his license suspended for eight months if
there was no previous revocation within the previous six years; however, he is eligible for
a temporary restricted license after three months. Section 321J.9.2, ICA. Montana law
does not allow for a temporary restricted license, but the first license suspension lasts only
six as opposed to eight months. Section 61-8-402, MCA. Thus, while the two states' laws
are not identical, Fergunson would have forfeited his license in Iowa as well as in
Montana, and for a longer period.
¶11 Given that Fergunson's right to operate a motor vehicle faced suspension in both states
for the refusal to take the test, and in light of Fergunson being told his license would be
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returned to his home state, we are unpersuaded by his argument that he was misled or
unlawfully coerced into taking the breath test. The purposes of Montana's implied consent
advisory forms are to put an apparently intoxicated driver on notice of the potentially
serious consequences of refusing a blood alcohol test, and to alert him to his due process
protections germane to independent testing and post-testing hearings. Simmons, ¶ 17. As
in Simmons, those purposes were accomplished here. We therefore conclude that the
courts below correctly denied Fergunson's motion to suppress.
¶12 The District Court is affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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