October 27 2009
DA 09-0128
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 356N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CLAY DAVID REDDING,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Treasure, Cause No. DC 06-01
Honorable Joe L. Hegel, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terry F. Schaplow, Attorney at Law, Bozeman, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Tammy Plubell,
Assistant Attorney General, Helena, Montana
Gary Ryder, Treasure County Attorney, Hysham, Montana
Submitted on Briefs: October 8, 2009
Decided: October 27, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Redding appeals from the order of the District Court of the Sixteenth Judicial
District denying his motion to dismiss and to suppress evidence. We affirm.
¶3 The following facts were found by the District Court, after an evidentiary hearing.
In the early morning of April 16, 2006, a citizen on his way to work near Hysham,
Montana, encountered a truck stopped in the middle of the road, in the wrong lane of
travel, flashing a turn signal. He stopped to offer assistance and found that the driver
(Redding) was locked in the truck, slumped over the steering wheel and unresponsive.
The truck transmission was in neutral and Redding’s foot was on the accelerator revving
the engine. The citizen called 911, and Sheriff Robinison and Deputy Paff from the
Treasure County Sheriff’s Department responded. They all tried to wake Redding by
pounding on the window, rocking the vehicle and shining a flashlight in his face. After
several minutes of this effort, Redding slowly came to consciousness and eventually got
out of the vehicle. There was an open can of beer on the driver’s side dash in plain view
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and an open box of beer on the floor of the passenger side. Redding later testified that he
had no recollection of how he got to the place where he was found.
¶4 Redding admitted that he had been drinking the evening before and the citizen and
officers all noted a strong odor of alcohol about him. His speech was slurred and difficult
to understand, his eyes were red and bloodshot, and he was unsteady on his feet. He
placed his hands behind his back as if to be handcuffed without being asked to do so.
The officers did not handcuff Redding, but transported him nearby to the Sheriff’s office
to take a breath sample. After some delay, partly occasioned by a confrontation between
Redding and his father, Paff read the “implied consent” form to Redding. Redding
signed with an “X” and then with his initials but declined to take the breath test.
¶5 The officers gave Redding notices to appear for DUI and for having an open
container in the vehicle and then gave him a ride to his grandmother’s house. Redding
was not jailed, fingerprinted or photographed and was not required to post bail. Redding
moved to suppress all evidence seized at the scene on the ground that there were
explanations for his conduct other than being intoxicated, and that the officer did not read
the implied consent form to him. The District Court denied the motions. Redding pled
guilty to DUI and was sentenced, reserving his right to appeal the pre-trial rulings. 1
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While Redding states only one issue in his brief on appeal, he makes a number of other
unusual and largely unsupported accusations in his brief. These include the contention
that he was “unconstitutionally profiled” by being charged with DUI; that the testimony
by the officers at the hearing was part of a “clear cover up;” and that the District Court
“never reviewed the briefs in detail.” These and other extraneous matters in his briefs
have no bearing on the issues on appeal and have done nothing to aid Redding’s cause.
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¶6 Redding contends that the District Court improperly denied his motion to dismiss
the charges against him on the ground that the officers lacked probable cause to make an
arrest. Paradoxically, Redding also contends that he was not arrested the night of the
incident. Whether or not Redding was ever under arrest, it is clear that the officers had
ample reason to respond and to investigate the situation. State v. Lovegren, 2002 Mont.
153, ¶ 25, 310 Mont. 358, 51 P.3d 471. It is also clear that under the facts as noted
above and found by the District Court, there was ample cause to detain Redding long
enough to determine whether he would provide a breath sample for blood alcohol testing.
Lovegren, ¶ 15.
¶7 Redding’s primary contention on appeal is that he had alternative explanations for
the condition he was in when he was found parked on the road. He contends that his
condition was fully explained by his having “fallen into a deep sleep while driving.” The
District Court fully considered Redding’s arguments and evidence below, holding two
full days of evidentiary hearings. The District Court heard the testimony, observed the
witnesses and made detailed and reasoned findings as to the evidence and the credibility
of the witnesses when their testimony conflicted. It is the responsibility of the District
Court to assess the demeanor and credibility of witnesses and to resolve conflicts in the
testimony. State v. Whiteman, 2005 MT 15, ¶ 15, 325 Mont. 358, 106 P.3d 543. The
District Court as the trier of fact was not bound by opinions of experts offered by
Redding. Bone v. State, 284 Mont. 293, 305, 944 P.2d 734, 741 (1997), overruled on
other grounds, Whitlow v. State, 2008 MT 140, ¶ 12, 343 Mont. 90, 183 P.3d 861.
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¶8 Based upon the facts observed by the officers there was ample cause to charge
Redding. Probable cause to charge an offense is based upon what the officer saw at the
time, even though the defendant subsequently provides alternative explanations for the
situation. In re Cybulski, 2008 MT 128, ¶ 18, 343 Mont. 56, 183 P.3d 39. The facts of
this case, as the District Court found, are materially different from Bush v. Department of
Justice, 1998 MT 270, 291 Mont. 359, 968 P.2d 716. Therefore Bush does not require
reversal of the District Court’s decisions despite Redding’s arguments to the contrary.
¶9 Redding makes much of the fact that the officers did not administer field sobriety
tests. While those tests can usually provide an officer with the necessary cause to make
an arrest or to bring charges, they are not required before bringing a charge of DUI.
Cybulski, ¶ 29. The District Court explained it well:
The Court determines that although it may have been the better practice to
perform field sobriety tests somewhere during the processing, the failure to
do so simply provides less evidence to the prosecution and does not
constitute either a due process violation or violation of statute.
The failure to perform the sobriety tests and Redding’s many alternative explanations for
his condition when the officers found him were matters of defense, which he could have
presented at trial. State v. Ditton, 2006 MT 235, ¶ 55, 333 Mont. 483, 144 P.3d 783. We
find no reason to disturb the District Court’s decisions on these matters.
¶10 Redding also argues that the District Court should have suppressed evidence
consisting of photographs of an open beer can that was sitting on the driver-side dash of
his truck and of the open box of beer that was sitting on the floor of the passenger side.
However, Redding presents no cogent argument why photographs of items that were
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concededly in plain and open view could not be seized as evidence. Redding only argues
that the officers could have acted differently, such as by having the vehicle towed and
impounded and then seeking a search warrant. This does not diminish the fact that the
disputed items were in plain view and subject to seizure as evidence. State v. Romero,
224 Mont. 431, 436, 730 P.2d 1157, 1160 (1986). Redding does not present any cogent
argument that the evidence in plain view could not be lawfully seized.
¶11 Redding argues that evidence that he refused to take a breath test should have been
suppressed because the officers did not read the implied consent form to him. See State
v. Kintli, 2004 MT 373, ¶¶ 18, 20, 325 Mont. 53, 103 P.3d 1056. While Redding contends
that the officers read only a portion of the form to him, the District Court specifically
found that the officers read the complete form. Redding’s refusal to take the test was
admissible. Section 61-8-404(2), MCA.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. The issues are clearly controlled by settled Montana law. There
clearly is sufficient evidence to support the District Court’s findings of fact and
conclusions of law.
¶13 Affirmed.
/S/ MIKE McGRATH
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We concur:
/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
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