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No. 99-644
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 25
IN RE THE DRIVER'S LICENSE
SUSPENSION OF
DARRYL McKENZIE,
Petitioner and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Torger Oaas, Attorney at Law, Lewistown, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt,
Assistant Attorney General, Helena, Montana
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana
Submitted on Briefs: October 12, 2000
Decided: February 15, 2001
Filed:
__________________________________________
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Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Darryl McKenzie appeals from the Order Denying Petition to Reinstate Driver's
License issued by the Tenth Judicial District Court, Fergus County. McKenzie contends
that the District Court erred when it denied his petition to reinstate his driver's license. We
affirm.
BACKGROUND
¶2 On May 2, 1999, at 2:55 a.m., Officer Edward McLean of the Lewistown Police
Department stopped Darryl McKenzie for driving 36 miles per hour in a 25 mile per hour
speed zone. While speaking to McKenzie, Officer McLean smelled the odor of alcohol on
his breath and asked him to step out of his vehicle. Officer McLean noticed that his eyes
were bloodshot and watery and his speech was slurred. Suspecting that McKenzie had
been driving under the influence of alcohol, Officer McLean asked McKenzie if he would
submit to a preliminary alcohol screening test-specifically a portable breath test.
McKenzie refused. Officer McLean read an implied consent advisory to McKenzie,
informing him of the consequences of refusal and again asked him whether he would
(1)
submit to a test. McKenzie refused again. Officer McLean placed McKenzie under
arrest for DUI and transported him to the police station.
¶3 At the police station, Officer McLean read the Montana Department of Justice Implied
Consent Advisory to McKenzie and requested that McKenzie submit to a blood test.
Officer McLean erroneously informed McKenzie that his license could be suspended for
six months for refusing the portable breath test in the field and an additional six months
for refusing the blood test at the police station. See § 61-8-409(6), MCA (providing that
the refusal of a preliminary alcohol screening test and a blood test during the same
incident may not be considered as two separate refusals for purposes of revocation or
suspension of driving privileges). McKenzie refused to submit to a blood test.
¶4 On May 17, 1999, McKenzie filed a petition requesting a hearing on the suspension of
his driver's license. The District Court held a hearing on August 31, 1999, at the
conclusion of which it denied McKenzie's petition. On September 30, 1999, the court
issued an order and supporting memorandum denying McKenzie's petition for
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reinstatement. McKenzie appeals.
STANDARD OF REVIEW
¶5 In reviewing a district court's denial of a petition for reinstatement of a driver's license,
we review the lower court's findings of fact to determine whether they are clearly
erroneous and its conclusions of law to determine whether they are correct. Williams v.
State, 1999 MT 5, ¶ 9, 293 Mont. 36, ¶ 9, 973 P.2d 218, ¶ 9.
DISCUSSION
¶6 Did the District Court err when it denied McKenzie's petition to reinstate his driver's
license?
¶7 McKenzie contends that Officer McLean failed to comply with the requirements of §
61-8-409(3), MCA, by asking McKenzie whether he would submit to a portable breath
test prior to reading McKenzie the required advisory. McKenzie acknowledges that
Officer McLean subsequently advised him of his right to refuse and the consequences of
refusal and again asked him to submit to a portable breath test, but McKenzie insists that
this was too late to cure the statutory violation.
¶8 The State agrees that McKenzie's first refusal was invalid and could not be used as a
basis to suspend McKenzie's license because it was made before Officer McLean informed
McKenzie of the consequences of refusal. However, the State maintains that once Officer
McLean informed McKenzie of the consequences of refusal, McKenzie's subsequent
refusal to submit to a portable breath test was valid and, therefore, the court had the right
to suspend or revoke his license for up to one year.
¶9 In a hearing on a petition to challenge a license suspension held pursuant to § 61-8-403,
MCA, the district court may determine whether the person whose license was suspended
refused to submit to one or more tests designated by the officer. Section 61-8-403(4)(a)
(iv), MCA. Pursuant to § 61-8-409, MCA, a person who operates a vehicle upon public
ways of the state of Montana is deemed to have given consent to a preliminary alcohol
screening test of the person's breath, and refusal to submit will result in the suspension or
revocation of that person's driver's license for up to one year. Section 61-8-409(3), MCA,
provides that "[t]he peace officer shall inform the person of the right to refuse the test and
that the refusal to submit to the preliminary alcohol screening test will result in the
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suspension or revocation for up to 1 year of that person's driver's license."
¶10 We agree that McKenzie's initial refusals which occurred prior to being informed of
both his right to refuse and the consequences of refusal are insufficient cause to suspend
his license. Section 61-8-409(3), MCA, specifically requires that an officer inform the
person stopped of the right to refuse and the consequences of refusal. Obviously, in order
for this provision to be meaningful, notice of the right to refuse and the consequences of
refusal must proceed the refusal itself. However, Officer McLean complied with § 61-8-
409(3), MCA, by providing McKenzie with the requisite information and again asking
McKenzie to submit to a test. McKenzie's refusal thereafter was sufficient cause to
suspend his driver's license. Therefore, the District Court correctly concluded that
McKenzie's license was properly suspended.
¶11 McKenzie also contends that the court should have granted his petition to reinstate his
driver's license because at the police station Officer McLean misinformed him of the
consequences for refusing a blood test. Both parties acknowledge that Officer McLean
misinformed McKenzie that, because McKenzie had refused to submit to a portable breath
test in the field, his subsequent refusal of a blood test could cause him to lose his license
for one year-six months for each refusal. Pursuant to § 61-8-409(6), MCA, the refusal of a
preliminary alcohol screening test and a blood test during the same incident may not be
considered as two separate refusals for purposes of revocation or suspension of driving
privileges. McKenzie argues that Officer McLean, by stating a greater penalty for refusal
than provided by law, was unlawfully attempting to coerce him into consenting to submit
to a blood alcohol test.
¶12 We decline to address the merits of this claim. McKenzie's refusal to submit to a
portable breath test in the field after being informed of his right to refuse and the
consequences of refusal is sufficient cause to suspend his license for six months. See §§
61-8-409(4) and -402(6)(a), MCA.
¶13 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
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/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
1. McKenzie insists that Officer McLean asked him twice whether he would submit to a breath test
before reading McKenzie the implied consent advisory. We have listened to an audiotape of McKenzie's
arrest and disagree. Furthermore, whether Officer McLean asked McKenzie once or twice prior to
reading McKenzie the implied consent advisory is irrelevant to our holding.
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