No. 01-687
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 351
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DALE BEANBLOSSOM,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Musselshell,
Honorable David Cybulski, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Robert W. Snively, Attorney at Law, Roundup, Montana
For Respondents:
Honorable Mike McGrath, Attorney General; Brenda Nordlund,
Assistant Attorney General, Helena, Montana
Catherine Truman, County Attorney, Roundup, Montana
Submitted on Briefs: April 25, 2002
Decided: December 30, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 The defendant, Dale Beanblossom (Beanblossom), was charged
with “Driving under the Influence of Alcohol, Fourth or Subsequent
Offense” in violation of §§ 61-8-401 and -731, MCA. Beanblossom
filed a motion to dismiss, alleging that the arresting officer
failed to administer a breathalyzer test in violation of § 61-8-
402(2), MCA, and in violation of his constitutional right to due
process. The District Court for the County of Musselshell denied
Beanblossom’s motion, and a jury ultimately convicted him of the
felony DUI charge. Beanblossom appeals the District Court’s
denial of his motion to dismiss. We affirm.
Background
¶2 On March 15, 2001, Musselshell County Deputy Sheriff Jon
Goffena, responded to a domestic disturbance call from
Beanblossom’s wife. On his way to the Beanblossom residence,
Officer Goffena noticed Beanblossom pulling out of a gas station
and onto the highway, heading in the direction of his residence.
Goffena followed the vehicle for approximately 100 to 200 yards,
during which time he observed the vehicle moving 10 to 15 miles an
hour in a 25 mile per hour zone with its right-turn signal
blinking. Officer Goffena decided to pull Beanblossom over before
he reached home so that Goffena could investigate the domestic
disturbance call and diffuse a potentially hazardous situation.
When Goffena turned on his patrol lights, Beanblossom’s vehicle
made a “big swerve” as it pulled over on the side of the highway.
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¶3 As Officer Goffena approached the vehicle, he noticed that
Beanblossom was “force-feeding himself corn nuts,” and that the
distinct odor of alcohol was on his breath. He asked Beanblossom
to get out of his vehicle and directed him to step behind the
vehicle. The investigation beside the patrol car was videotaped.
According to Officer Goffena, Beanblossom acted in a threatening
manner. Several times during the investigation, Beanblossom
referred to a fight that had occurred earlier in the day with a
woman. In describing the fight, Beanblossom emphatically swung his
arms and demonstrated how the woman allegedly grabbed him, then
pulled back and crooked his arm, as if to throw a punch. Officer
Goffena testified that he felt “pretty tense” while he was dealing
with Beanblossom because of “[t]he screaming, the hollering, the
look on his face, the actions that were going on” and because
Beanblossom “kept crowding [his] space.”
¶4 After the initial roadside investigation, Goffena took
Beanblossom to the detention center where he read Beanblossom an
implied consent advisory. This interview was also videotaped. In
response to Goffena’s question, “Will you take a breath test?”
Beanblossom responded, “Yeah.” However, by that point, the officer
was “stressed,” “completely distracted,” not “paying attention to
what [he] was reading” and did not administer the breath test even
though Beanblossom had consented. Instead, Goffena marked the
implied consent form to indicate that Beanblossom had refused the
test. In fact, Officer Goffena testified that he did not realize
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that Beanblossom had actually consented to the breath test until
the county attorney told him that it was on the video tape.
¶5 Ultimately, Beanblossom was charged with DUI, which if
convicted of, would have constituted his fourth DUI offense, a
felony. Beanblossom, through counsel, filed a motion to dismiss
the charge based on the officer’s failure to administer the breath
test, which Beanblossom contends would have been exculpating.
After a hearing, the District Court denied the motion.
Subsequently, a jury found Beanblossom guilty of DUI, and
Beanblossom was sentenced to 13 months with the Department of
Corrections and four years of probation. Beanblossom appeals the
denial of his motion to dismiss. We affirm.
¶6 Beanblossom presents the following issues on appeal:
¶7 1. Whether the District Court erred in not granting
Beanblossom’s motion to dismiss?
¶8 2. Whether Beanblossom’s due process rights were violated
when the arresting police officer failed to administer Beanblossom
a breath test?
Discussion
¶9 The grant or denial of a motion to dismiss in a criminal case
is a question of law which is reviewed de novo on appeal. State v.
Hardaway, 2001 MT 252, ¶ 64, 307 Mont. 139, ¶ 64, 36 P.3d 900, ¶
64. This Court’s standard of review is plenary, and we determine
whether a district court’s conclusion is correct. Hardaway, ¶ 64.
Issue 1
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¶10 Whether the District Court erred in not granting Beanblossom’s
motion to dismiss?
¶11 Appellant Beanblossom argues that the District Court erred in
denying his motion to dismiss because Montana law, specifically §
61-8-402(2), MCA, mandates breath tests in cases where an officer
suspects a person of driving under the influence of alcohol.
Therefore, Beanblossom maintains that Officer Goffena’s failure to
administer a breath test violated the statutory mandate of § 61-8-
402, MCA. He further asserts that Goffena’s failure to administer
him a breath test bars the State from prosecuting him for the DUI
offense. Because the linchpin of Beanblossom’s argument is that §
61-8-402(2), MCA, mandates breath tests in Montana, we first
address whether this statute includes such a requirement.
¶12 The resolution of this question involves Montana’s implied
consent statute, § 61-8-402(1), MCA, which provides that “[a]
person who operates or is in actual physical control of a vehicle
upon the ways of this state open to the public is considered to
have given consent to a test or tests of the person’s blood or
breath for the purpose of determining any measured amount or
detected presence of alcohol or drugs in the person’s body.”
Therefore, a person driving on a Montana highway is presumed to
have consented to taking a breath test if an officer has reasonable
grounds to believe that the person was under the influence of
alcohol. If the driver withdraws his or her consent by refusing to
take a breath test, the driver is subject to the immediate seizure
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of his or her driver’s license, as well as possible suspension and
revocation of the license. See § 61-8-402, MCA.
¶13 According to Beanblossom, subsection (2) of the implied
consent statute mandates the administration of breath tests. This
subsection provides as follows:
[Breath] test or tests must be administered at the
direction of a peace officer when: (i) the officer has
reasonable grounds to believe that the person has been
driving or has been in actual physical control of a
vehicle upon ways of this state open to the public while
under the influence of alcohol . . . .
Section 61-8-402(2), MCA (emphasis added).
¶14 Beanblossom maintains that the word “must” renders the statute
mandatory and thus requires a peace officer to administer a breath
test when he or she believes that a person has been driving while
intoxicated. Therefore, Beanblossom asserts that Officer Goffena
violated § 61-8-402(2), MCA, when he failed to give Beanblossom a
breath test and that this violation in turn bars his prosecution of
the DUI offense.
¶15 The question of whether § 61-8-402(2), MCA, mandates breath
tests is one of first impression for this Court. This issue,
however, has been examined by courts outside of Montana, which have
interpreted the mandatory language in similarly written statutes as
identifying who may administer breath tests when, and if, a breath
test is administered. In State v. Entzel (Wash. 1991), 805 P.2d
228, the Washington State Supreme Court considered whether that
state’s implied consent statute imposed a mandatory duty on police
officers to offer breath tests to all persons accused of driving
while under the influence. The Entzel court held that the statute
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did not impose a mandatory duty on peace officers to offer and
administer breath tests to every person accused of driving while
intoxicated. See Entzel, 805 P.2d at 229-30. The court ruled that
the statutory language merely designated who may administer the
breath test. See Entzel, 805 P.2d at 231. Importantly, the Entzel
court noted that, “[n]ationally, case law holding that implied
consent statutes do not impose a duty on law enforcement to offer
breath or blood tests has been remarkably consistent over several
decades.” Entzel, 805 P.2d at 230, n.3 (listing cases).
¶16 We agree with the interpretation of the implied consent
statute articulated in Entzel. The breath test is merely a means
of determining the level of intoxication. The statute does not
make a breath test the exclusive means of proving intoxication. It
is not, as Beanblossom suggests, a precondition to prosecution for
DUI. The officer can, in his or her discretion, rely on other
indicia of intoxication. The “must” language of the statute refers
to “who” administers the test if, in the officer’s discretion, a
test is given. “Must” does not refer to “whether” the test has to
be administered.
¶17 Therefore, because § 61-8-402(2), MCA, merely mandates who may
administer a breath test and does not require the administration of
breath tests, we conclude that the District Court did not err in
denying Beanblossom’s motion to dismiss.
Issue 2
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¶18 Whether Beanblossom’s due process rights were violated when
the arresting police officer failed to administer Beanblossom a
breath test?
¶19 Next, we turn to Beanblossom’s argument that his due process
rights were violated by Officer Goffena’s failure to administer a
breath test, which Beanblossom contends would have been
exculpating. Beanblossom directs this Court to previous decisions
where we have ruled that when the alleged crime involves
intoxication, the accused has the right to obtain a sobriety test
independent of that offered by the arresting officer. See § 61-8-
405(2), MCA; State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155.
Undoubtedly, Beanblossom had the right to request and receive an
independent blood test. He did not, however, request a blood test.
A violation of due process rights arises only when an accused has
requested, but then is denied, an independent sobriety blood test.
¶20 For the reasons discussed above, we affirm the District
Court’s denial of Beanblossom’s motion to dismiss.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ JIM RICE
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Justice Terry N. Trieweiler dissenting.
¶21 I dissent from the majority Opinion.
¶22 The language of § 61-8-402, MCA, is both clear and mandatory.
It provides, in relevant part:
(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 to a test or
tests of the person's blood or breath for the purpose of
determining any measured amount or detected presence of
alcohol or drugs in the person's body.
(2) (a) The test or tests must be administered at the
direction of a peace officer when:
(i) the officer has reasonable grounds to believe that
the person has been driving or has been in actual
physical control of a vehicle upon ways of this state
open to the public while under the influence of alcohol,
. . . .
¶23 When construing a statute, this Court's role is to simply
ascertain and declare what is in terms or in substance contained
therein, not to put its own result-oriented spin on otherwise clear
language. See § 1-2-101, MCA. Every child understands the meaning
of "must," however, if there's any question, Webster's Ninth New
Collegiate Dictionary defines it in part as "b: be required by law,
custom, or moral conscience . . . to be obliged to . . . ."
¶24 In the past, we have held that when the state violates other
testing requirements related to drivers suspected of driving under
the influence of alcohol, the appropriate remedy is dismissal of
the charges against the defendant. See State v. Minkoff, 2002 MT
29, ¶ 24, 308 Mont. 248, ¶ 24, 42 P.3d 223, ¶ 24. In that case, we
concluded that the investigating officer frustrated a DUI suspect's
right pursuant to 61-8-405(2), MCA, to gather an independent blood
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sample by warning the suspect that the sample would demonstrate a
higher blood alcohol level than did the breath test administered by
the investigating officer. If discouraging someone, while not
prohibiting that person, from obtaining an independent blood test
requires dismissal even though breathalyzer test results are
already available, then it makes no sense to me why ignoring the
plain and mandatory language requiring a test to measure the amount
of alcohol in a person's body would not compel the same result.
¶25 Had the majority chosen to affirm the District Court's finding
that Beanblossom frustrated the investigating officer's efforts to
administer a breathalyzer or blood test, that would make some
sense. However, the majority has ignored that issue. In the
process, the majority has also chosen to ignore the plain language
of the statute in favor of its own result-oriented approach and has
demonstrated a propensity to selectively and randomly enforce those
statutes which pertain to the administration of tests to those
people who are suspected of driving under the influence of alcohol.
The majority does so based on case law from other jurisdictions.
However, when a statutory mandate is as clear as the language in §
61-8-402(2), MCA, case law from other jurisdictions is irrelevant
and unnecessary.
¶26 The majority suggests in ¶ 16 that, "[T]he 'must' language of
the statute refers to 'who' administers the test if, in the
officer's discretion, a test is given. 'Must' does not refer to
'whether' the test has to be administered." The majority's
strained interpretation deserves high marks for creativity but low
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marks for consistency, adherence to basic rules of grammar, or a
willingness to enforce plain statutory language when doing so leads
to an unpleasant result.
¶27 For these reasons, I dissent from the majority Opinion. I
would reverse the judgment of the District Court and order that the
charges against Beanblossom be dismissed for failure of the
investigating officer to follow the plain language of § 61-8-
402(2), MCA.
/S/ TERRY N. TRIEWEILER
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