No. 01-766
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 154
THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
CURTIS FELDBRUGGE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Mineral,
Honorable Douglas G. Harkin, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Daniel R. Wilson, Attorney at Law, Kalispell, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
M. Shaun Donovan, County Attorney, Superior, Montana
Submitted on Briefs: March 21, 2002
Decided: July 11, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Curtis Feldbrugge (Feldbrugge) appeals from the Fourth
Judicial District Court’s order affirming the Mineral County
Justice Court’s denial of his motion to suppress. We affirm.
¶2 We re-state the issues on appeal as follows:
¶3 (1) Were Feldbrugge’s due process rights violated when the
arresting officer informed him of his right to obtain an
independent blood test after he administered the portable breath
test?
¶4 (2) Was Feldbrugge’s arrest supported by probable cause?
FACTUAL AND PROCEDURAL BACKGROUND
Comment [COMMENT1]: Dc fof
¶5 The parties have stipulated to the following facts pertinent 1
to our review. On November 16, 2000, at approximately 11:20 p.m.,
Feldbrugge drove westbound on Interstate 90 past two patrol cars
parked in the median near Superior, Montana. Mineral County Deputy
Sheriff Douglas obtained a radar speed result showing that
Feldbrugge was driving 88 miles per hour in a 75 miles per hour
speed limit zone.
¶6 A second officer, Highway Patrol Officer Reiner, pulled his
patrol car onto the freeway to stop Feldbrugge. He saw
Feldbrugge’s car brake quickly and exit the freeway onto the off
ramp leading to Superior. The officer then activated his vehicle’s
emergency lights, and Feldbrugge stopped his car.
¶7 Officer Reiner parked behind Feldbrugge’s car and approached
the car. He told Feldbrugge that he had been pulled over for
speeding. Officer Reiner asked Feldbrugge to produce his driver’s
2
license, registration and proof of insurance. Feldbrugge had
difficulty removing his driver’s license from his billfold.
Feldbrugge produced proof of insurance after Officer Reiner’s
second request, and he continued to look for his registration in
the glove box.
¶8 Officer Reiner left Feldbrugge’s car and walked back towards
his patrol vehicle. On the way, he remarked to Deputy Douglas that
he did not smell the odor of an alcoholic beverage coming from
Feldbrugge, but his speech was slurred.
¶9 Minutes later, Feldbrugge got out of his car, walked to
Officer Reiner’s patrol vehicle and handed him his registration.
Officer Reiner asked Feldbrugge several questions, and Feldbrugge
admitted having had a couple of drinks. Officer Reiner testified
that Feldbrugge’s eyes appeared bloodshot and glassy and that he
appeared confused and unsteady on his feet. Officer Reiner did not
ask Feldbrugge to perform any field sobriety tests. Officer Reiner
testified that after Feldbrugge was asked to extinguish a
cigarette, he smelled an odor of alcohol on Feldbrugge.
¶10 Officer Reiner asked Feldbrugge to take a breath test on a
portable breath tester (PBT). He told Feldbrugge that if he passed
the PBT, he would not be arrested. Officer Reiner further stated
that if Feldbrugge did not pass the PBT, he would be arrested for
DUI.
¶11 Officer Reiner then read a short advisory which did not
contain information regarding Feldbrugge’s right to obtain an
independent blood test to challenge the PBT results. Feldbrugge
3
consented to the PBT, and Officer Reiner told him that the PBT
result was .17 or .18. Officer Reiner later testified that the PBT
result was .197. Feldbrugge was arrested and taken to the Mineral
County Jail. Before he was administered the intoxilyzer breath
test at the jail, he was read the implied consent advisory form,
including a statement that he had the right to an independent blood
test.
¶12 In the Mineral County Justice Court, Feldbrugge filed a motion
to suppress the PBT results and a motion to suppress evidence
obtained as a consequence of his arrest without probable cause.
The Justice Court conducted a hearing on Feldbrugge’s motions and
subsequently denied them. Thereafter, Feldbrugge pled guilty to
DUI, reserving his right to appeal the denial of his motions to the
District Court pursuant to § 46-12-204(3), MCA. The District Court
affirmed the Justice Court’s denial of Feldbrugge’s motion to
suppress. Feldbrugge appeals.
DISCUSSION
¶13 (1) Were Feldbrugge’s due process rights violated when the
arresting officer informed him of his right to obtain an
independent blood test after he administered the portable breath
test?
¶14 Our standard of review of a ruling on a motion to suppress
where the facts are not in dispute is to determine whether the
district court’s conclusions of law are correct as a matter of law.
State v. Griggs, 2001 MT 211, ¶ 17, 306 Mont. 366, ¶17, 34 P.3d
101, ¶ 17 (citation omitted). This Court’s review is plenary as to
4
whether the district court correctly interpreted and applied the
law. Griggs, ¶ 17 (citation omitted).
¶15 Feldbrugge argues that the arresting officer’s failure to
inform him of his right to an independent blood test to challenge
the PBT result violated important policies underlying our decision
in State v. Strand (1997), 286 Mont. 122, 951 P.2d 552 (overruled
on other grounds by State v. Minkoff, 2002 MT 29, ¶ 23, 308 Mont.
248, ¶ 23, 42 P.3d 223, ¶ 23). In Strand, the Kalispell Police
Department had an express policy that law enforcement officers
should not read to the accused the implied consent advisory form,
which explained the substance of Montana’s implied consent
statutes, unless or until the accused refused to submit to an
officer-designated breath test. Strand, 286 Mont. at 125, 951 P.2d
at 553. Since Strand submitted to the officer-designated breath
test, he was never read the form, and, as a result, he was never
informed of his right to obtain an independent blood test. Strand,
286 Mont. at 125, 951 P.2d at 553-54.
¶16 We held 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. Strand, 286 Mont. at 126, 951 P.2d at
554. We reasoned that due to the evanescent character of blood
alcohol evidence, a defendant must be appraised of the right to
obtain an independent blood test at the time of the arrest while
the blood can still be analyzed. Strand, 286 Mont. at 126-27, 951
P.2d at 554. We also noted that a person accused of driving under
5
the influence of alcohol does not have a right to counsel before
submitting to a breath test and, therefore, the arresting officer
is the only person in a position to inform the defendant of his
right to an independent blood test. We held that the arresting
officer thus has an affirmative duty to inform a defendant of this
right. Strand, 286 Mont. at 127, 951 P.2d at 554-55.
¶17 Feldbrugge insists that although he was informed of his right
to an independent blood test after his arrest and before the
intoxilyzer breath test, the notice came too late for Feldbrugge to
make a fully informed decision as to whether to take the PBT at the
side of the road. He urges the Court to require law enforcement
officers to inform individuals of the right to an independent blood
test for every breath test an officer requests.
¶18 The District Court concluded that the facts in Strand differed
remarkably from the facts in this case. It stated that unlike the
defendant in Strand, who was never informed of his right to an
independent blood test, Feldbrugge was informed of his right to the
test after arrest and prior to the officer’s request for a police
administered intoxilyzer breath test. The court concluded that
Feldbrugge’s due process rights were not violated because he was
appraised of the right to an independent blood test while his blood
could still be analyzed to detect the presence of alcohol.
¶19 The State urges this Court to uphold the District Court’s
conclusions of law. The State claims that the arresting officer in
this case complied with Strand when he informed Feldbrugge of his
right to an independent blood test after his arrest and at a time
6
when he was able to meaningfully exercise the right. The State
maintains that our holding in Strand involves a DUI defendant’s
right to attempt to obtain potentially exculpatory evidence and
does not implicate the separate right of such a defendant to refuse
to submit to a breath test which has been requested under Montana’s
implied consent statutes.
¶20 We agree. Feldbrugge apparently argues that had he been
informed of his right to an independent blood test, he might have
refused to consent to the PBT. However, the notion that Feldbrugge
had a choice between submitting to a PBT or obtaining an
independent blood test, without penalty, is misguided.
¶21 Every person who operates a motor vehicle in the state of
Montana has impliedly consented 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. A person may refuse to
submit to the test, but his or her driver’s license will be
immediately seized and suspended. Section 61-8-402(4), MCA. A
person may obtain an independent test in addition to the test
administered at the direction of an officer. Section 61-8-405(2),
MCA.
¶22 The corresponding right to an independent blood test, as
discussed in our Strand decision, involves the right to obtain
exculpatory evidence and is separate from the obligation to submit
to an officer-designated test pursuant to Montana’s implied consent
statutes. For instance, had Feldbrugge been informed of his right
to an independent blood test prior to consenting to the PBT, his
7
options remained the same: he could have consented to the PBT or
he could have refused it and had his driver’s license seized.
Consequently, there was no reason for the arresting officer to
inform him of his right to an independent blood test prior to
requesting the PBT. Rather, under Strand, the arresting officer
was required to timely inform Feldbrugge that he could obtain an
independent blood test in addition to the PBT and intoxilyzer so
that Feldbrugge might gather potential exculpatory evidence.
¶23 We hold that Feldbrugge’s due process rights were not violated
when the arresting officer informed him of his right to obtain an
independent blood test after he administered the PBT. The District
Court properly affirmed the Justice Court’s denial of Feldbrugge’s
motion to suppress.
¶24 (2) Was Feldbrugge’s arrest supported by probable cause?
¶25 Feldbrugge concedes that at the time of his arrest, Officer
Reiner had a particularized suspicion that he was under the
influence of alcohol. However, Feldbrugge insists that without the
PBT results, the officer lacked probable cause to arrest him for
DUI and that all the evidence gathered as a result of the arrest
should be suppressed. Since we hold that the PBT results are
admissible, we conclude that Feldbrugge’s arrest was supported by
probable cause.
/S/ W. WILLIAM LEAPHART
We concur:
8
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ JIM RICE
9