No. 02-037
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 340
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LARRY TURBIVILLE,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Fallon, Cause No. DC 2000-01,
Honorable Joe L. Hegel, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gary R. Thomas, Thomas Law Office, Red Lodge, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Brenda Nordlund,
Assistant Attorney General, Helena, Montana
Albert R. Batterman, County Attorney, Baker, Montana
Submitted on Briefs: September 26, 2002
Decided: December 15, 2003
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Larry Turbiville (Turbiville), the holder of a North Dakota driver’s license, was
convicted in Fallon County Justice Court for driving a motor vehicle while under the
influence of alcohol in violation of § 61-8-401, MCA (1997). Turbiville appealed his
conviction to the Sixteenth Judicial District Court of Fallon County for a trial de novo and
moved to suppress the evidence obtained from his breath tests. Following the court’s denial
of his motion, Turbiville pled guilty to driving while under the influence of alcohol,
reserving his right to appeal the District Court’s denial of his motion to suppress. Turbiville
now appeals the denial of his motion to this Court. We affirm.
¶2 We rephrase Turbiville’s issues on appeal as follows:
¶3 Did the District Court err in denying Turbiville’s motion to suppress the results of his
breath tests, which was premised on the basis that he was provided misleading information
about the ramifications of his failure to take the test?
FACTUAL BACKGROUND
¶4 On the evening of August 20, 1998, Officer Pat Harrison of the Montana Highway
Patrol (Officer Harrison) was patrolling north on Montana Highway 7 in Fallon County
when he came upon a Ford pickup, driven by Larry Turbiville, which he observed crossing
over the center line. Officer Harrison turned his vehicle around and began following the
pickup. In the course of several miles, Harrison observed the pickup again cross over the
center and fog lines. He also noticed that the vehicle was operating with expired registration
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tags. Officer Harrison activated his overhead lights and the pickup came to a stop on the
side of the road.
¶5 As Officer Harrison approached the vehicle, he smelled what he believed to be
alcohol coming from Turbiville. Harrison ordered Turbiville out of the vehicle and into the
patrol car where he asked him if he had been drinking. When Turbiville responded that he
had had “one or two,” Officer Harrison noticed that Turbiville’s speech was slurred. After
completing a citation for expired registration, Officer Harrison administered a Horizontal
Gaze Nystagmus test (HGN test) to Turbiville. He then read a Preliminary Alcohol
Screening Test Advisory, stating in relevant part:
Under Montana law, I have the right to ask you to take a preliminary breath
test to estimate your alcohol concentration level.
You may refuse to take this test. However, if you do, your driver’s license
will be suspended for six months. If you have refused to take a similar test in
the past 5 years, your driver’s license will be revoked for one year.
....
Will you take a preliminary breath test?
¶6 Turbiville, a North Dakota resident and holder of a North Dakota driver’s license, was
provided no additional information concerning his rights regarding the preliminary breath
test (PBT). In particular, Officer Harrison did not advise Turbiville that he could refuse to
take the test and challenge the seizure of his license in district court.
¶7 After hearing the advisory, Turbiville submitted to the PBT, which estimated a body
alcohol content in excess of the legal limit. As a result, Turbiville was placed under arrest
for driving under the influence of alcohol (DUI) and transported to the Fallon County
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Sheriff’s Office. Upon arriving at the Sheriff’s Office, Turbiville was asked to submit to a
test on the Intoxilyzer 5000, a non-portable device designed to measure the body’s blood
alcohol content, and read the Montana Department of Justice Implied Consent Advisory,
which states in pertinent part:
If you refuse this test, your driver’s license will be seized and suspended for
six months.
If you have refused similar testing within the past five years and you refuse
again today, your driver’s license will be seized and revoked for one year.
....
If you refuse testing, you may contest the action taken against your license by
filing a petition in district court. The action will not be overturned unless you
prove that your arrest or investigatory stop was unlawful or that you did not
refuse testing. You may ask the court to restore your driving privileges until
the court rules on your petition.
¶8 After hearing this advisory, Turbiville consented to a breath test on the Intoxilyzer
5000. He also signed a written copy of the advisory, acknowledging that it had been read
to him. Turbiville then took the test on the Intoxilyzer 5000, which reported a blood alcohol
content of .194.
¶9 On August 24, 1998, Turbiville appeared before the Justice Court of Fallon County,
pleading not guilty to his second offense of driving under the influence of alcohol, in
violation of § 61-8-401, MCA. Following a bench trial in Justice Court, Turbiville was
found guilty of DUI. He subsequently appealed his conviction to the Sixteenth Judicial
District Court of Fallon County for a trial de novo. Prior to trial, Turbiville moved the court
to suppress the results of the breath tests performed the evening of his arrest on the grounds
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that his due process rights were violated by Montana’s Implied Consent Advisory, which,
he argued, was inaccurate when applied to nonresidents. The District Court rejected
Turbiville’s contentions and denied his motion. Thereafter, Turbiville entered a plea bargain
agreement with the State agreeing to plead guilty to DUI, and reserving his right to appeal
the District Court’s denial of his motion to suppress the evidence resulting from his breath
tests. Turbiville now appeals.
STANDARD OF REVIEW
¶10 A district court’s denial of a criminal defendant’s motion to suppress is reviewed on
appeal to determine whether the court’s “findings of fact are clearly erroneous, and whether
those findings were correctly applied as a matter of law.” State v. Vonbergen, 2003 MT 265,
¶ 7, 317 Mont. 445, ¶ 7, 77 P.3d 537, ¶ 7 (citations omitted). Because the issue of whether
a defendant’s due process rights were violated is a question of law, we review the district
court’s conclusion to determine whether its interpretation of the law was correct. State v.
Strand (1997), 286 Mont. 122, 124, 951 P.2d 552, 553 (overruled on other grounds by State
v. Minkoff, 2002 MT 29, ¶ 23, 308 Mont. 248, ¶ 23, 42 P.3d 223, ¶ 23).
DISCUSSION
¶11 Did the District Court err in denying Turbiville’s motion to suppress the results
of his breath tests, which was premised on the basis that he was provided misleading
information about the ramifications of his failure to take the test?
¶12 Turbiville claims that the results of the PBT and the later administered Intoxilyzer
breath test should have been suppressed because the advisories given to him were inadequate
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and misleading, and thereby amounted to a violation of his due process rights. First,
Turbiville contends the PBT advisory was inadequate because it failed to advise him of his
right to judicial review of the license suspension should he refuse to take the test. In support
of his argument, Turbiville relies on Pickens v. Shelton-Thompson, 2000 MT 131, ¶ 18, 300
Mont. 16, ¶ 18, 3 P.3d 603, ¶ 18, for the proposition that “notice which is confusing,
misleading, or inaccurate is insufficient to meet procedural due process requirements under
the United States Constitution because such notice does not adequately safeguard a person’s
concomitant due process right of an opportunity to be heard.” The State counters that
Turbiville had no concomitant due process right to a hearing when he was presented with the
opportunity to refuse the preliminary breath test, and thus, his reliance on Pickens is
misplaced.
¶13 Factually, Pickens differs significantly from this case. In Pickens, child support
obligor Pickens timely filed a petition for judicial review of a CSED order and mailed
copies of the petition to the obligee and to CSED. Pickens, ¶ 4. CSED moved to dismiss
for lack of jurisdiction because Pickens had failed to properly serve the parties as required
by § 40-5-253, MCA. Pickens, ¶ 4. The District Court granted the motion to dismiss, and
Pickens appealed. Pickens, ¶ 6.
¶14 On appeal, we observed that the notice provisions contained in the CSED order
informed Pickens of his right to petition for judicial review under the provisions of MAPA
(Title 2, Chapter 4, Part 7, MCA) which did not require issuance and service of a summons
in conjunction with the petition, but failed to inform him of the more stringent service
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requirements of § 40-5-253, MCA, which required personal service with a summons.
Pickens, ¶¶ 3, 10. By omitting any reference to the different procedural requirements for
CSED actions contained in § 40-5-253, MCA, the notice implied that judicial review was
governed exclusively by MAPA, causing Pickens to improperly serve his petition for judicial
review, and, ultimately, lose the opportunity to meaningfully exercise that right. Pickens,
¶¶ 4, 17. We accordingly reversed the district court’s order of dismissal and remanded for
further proceedings on Pickens’ petition for judicial review. Pickens, ¶ 23.
¶15 Here, unlike the notice provided in Pickens, the PBT advisory did not provide
misleading or inaccurate information. The advisory accomplished its intended purpose of
informing Turbiville of his choices at the time of testing and of the potentially serious
consequences of refusing to submit to a blood or breath test. It did not mislead Turbiville
into forfeiting his right to a later hearing or otherwise disturb that right. If Turbiville would
have refused the test, and his license had been suspended, he would have nonetheless
retained his right to contest the suspension in the district court under § 61-8-403, MCA.
Thus, in contrast to Pickens, there was not a “concomitant due process right of an
opportunity to be heard” safeguarded by the advisory here. Pickens, ¶ 18.
¶16 Turbiville asserts that if he had been advised of his right to a hearing to challenge a
suspension of his license, he would have refused the PBT, and thus, the advisory was
insufficient, thereby violating his due process rights. To the contrary, the option to refuse
a breath or blood test is not a matter of due process, but a matter of grace bestowed by the
Legislature. See City of Helena v. Barrett (1990), 245 Mont. 35, 37, 798 P.2d 544, 545
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(citing South Dakota v. Neville (1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748).
Under Montana law, every person who operates or is in actual physical control of a motor
vehicle upon the ways of this state has impliedly consented to a test of the person’s blood or
breath for purposes of determining the presence of alcohol or drugs in the body. Section 61-
8-402(1), MCA. Because refusal to take the test is a matter of grace, the Legislature may
contour this favor in a manner it deems appropriate. Montana’s implied consent statutes do
not specifically require an officer to provide information to an arrested motorist as to the
ramifications of refusal to take the requested test. State v. Simmons, 2000 MT 329, ¶ 17, 303
Mont. 60, ¶ 17, 15 P.3d 408, ¶ 17. Indeed, we have recognized that a driver is not even
entitled to be informed that he or she may refuse the test. Simmons, ¶ 17. Therefore, we
conclude Turbiville’s right to due process was not implicated by the advisory’s failure to
notify him of the right to judicial review in the event he refused the preliminary breath test.
¶17 Turbiville next challenges the constitutionality of § 61-8-402(4) and (7), MCA, as
well as § 61-1-136(3), MCA, both on their face and as applied, arguing that the advisories
given to him for both the PBT and the Intoxilyzer tests violated his guarantee to due process
of law by failing to inform him, a nonresident, that only his Montana driving privileges
would be subject to suspension and any other action taken against his license would depend
upon proceedings in North Dakota, his home state. Accordingly, Turbiville argues, the
advisories were inaccurate and the results of his breath tests should have been suppressed.
¶18 When the constitutionality of a statute is challenged, the party making the challenge
bears the burden of proving, beyond a reasonable doubt, that the statute is unconstitutional,
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and any doubt must be resolved in favor of the statute. State v. Stanko, 1998 MT 321, ¶ 15,
292 Mont. 192, ¶ 15, 974 P.2d 1132, ¶ 15. A statute may be challenged as violative of the
right to due process for its vagueness on two different bases: (1) the statute is so vague that
it is void on its face; or (2) the statute is vague as applied in a particular situation. State v.
Britton, 2001 MT 141, ¶ 5, 306 Mont. 24, ¶ 5, 30 P.3d 337, ¶ 5. The void-for-vagueness
doctrine requires that a criminal statute define the offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement. Britton, ¶ 6.
¶19 Here, the essence of Turbiville’s constitutional challenge is that Montana’s implied
consent advisory statutes provide misleading and inaccurate information to nonresident
drivers about the consequences of refusing to submit to a breath or blood test. Turbiville
contends that, as a North Dakota resident with a North Dakota driver’s license, the
advisories’ warning that Montana would suspend or revoke his driver’s license upon his
refusal to submit to a breath test was inaccurate and misleading because Montana has no
actual authority to suspend or revoke a driver’s license issued by another state. Thus,
Turbiville argues, he was left “to engage in a guessing game as to what was really meant by
the threat to suspend his ‘driver’s license’ . . . .”
¶20 However, this Court has twice considered and rejected Turbiville’s basic argument
that his due process rights were violated when he was provided information on the
consequences of a refusal to submit to a breath test. In Simmons, ¶ 18, and City of Missoula
v. Ferguson, 2001 MT 69, ¶ 11, 305 Mont. 36, ¶ 11, 22 P.3d 198, ¶ 11, both factually and
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legally similar to this case, we concluded that the implied consent advisory found at § 61-8-
402, MCA, informing a driver of the potentially serious consequences of refusing a blood
or breath test, was not inaccurate or misleading when applied to nonresident drivers. In
Simmons, we reasoned that because the statutory definition of “driver’s license” includes
“any nonresident’s driving privilege,” § 61-1-136(3), MCA, the advisory read to a
nonresident driver was technically correct in informing the driver that his or her “driver’s
license will be seized and suspended.” Simmons, ¶ 16.
¶21 Here, as in Simmons, § 61-1-136(3), MCA, clearly defines “driver’s license” as
including any “nonresident’s driving privilege.” When unambiguous, our duty in
interpreting statutes is to apply their plain meaning. State v. Lacasella, 2002 MT 326, ¶ 40,
313 Mont. 185, ¶ 40, 60 P.3d 975, ¶ 40 (Rice, J., dissenting). Here, § 61-1-136(3), MCA,
is neither vague on its face, nor has Turbiville shown it to be vague as applied to his
particular situation. Rather, the advisory accomplished its purpose of informing Turbiville,
an apparently intoxicated individual, of the potentially serious consequences of losing his
Montana driving privileges should he refuse to take a breath test. See Simmons, ¶ 17.
Consequently, Turbiville’s constitutional challenge for vagueness fails.
¶22 Turbiville additionally attacks § 61-8-402(4) and (7), MCA, as unconstitutional;
however, he advances no discernable arguments in support thereof. When “the challenged
statute is ‘reasonably clear in its application to the conduct of the person bringing the
challenge, it cannot be stricken for vagueness.’” State v. Dixon, 2000 MT 82, ¶ 20, 299
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Mont. 165, ¶ 20, 998 P.2d 544, ¶ 20. Thus, the holding in Simmons controls this case.
Accordingly, the District Court did not err in denying Turbiville’s motion to suppress.
¶23 Affirmed.
/S/ JIM RICE
We concur:
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
[end]
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