May 11 2010
DA 09-0467
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 106
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSEPH STANCZAK,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 08-62
Honorable C.B. McNeil, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard, P.C., Attorney at Law; Great Falls, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General; Helena, Montana
Mitch Young, Lake County Attorney; J. Cory Allen, Deputy County
Attorney; Polson, Montana
Submitted on Briefs: March 31, 2010
Decided: May 11, 2010
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Joseph Stanczak (Stanczak) was tried and convicted in the District Court for the
Twentieth Judicial District, Lake County, of driving under the influence of alcohol in
violation of § 61-8-401(1)(a), MCA. He appeals and we affirm.
¶2 1. Did the District Court err by instructing the jury that Stanczak had no right
to consult with an attorney before performing a field sobriety test?
¶3 2. Did the District Court err by instructing the jury that it could infer Stanczak
was under the influence of alcohol because he refused to perform a field sobriety tests
before consulting with an attorney?
PROCEDURAL AND FACTUAL BACKGROUND
¶4 On the evening of March 31, 2008, Montana Highway Patrolman Chris Hoyt
(Trooper Hoyt) responded to a single vehicle crash. After a brief investigation,
Trooper Hoyt identified the driver as Joseph Stanczak, placed him under arrest for
suspicion of DUI and transported him to the Lake County Detention Center for further
DUI investigation. Upon arrival at the Detention Center, and throughout the DUI
processing, Stanczak repeatedly requested the presence of counsel before he would
engage in field sobriety tests. Nevertheless, Hoyt insisted that Stanczak perform the
“walk and turn” maneuver, which he did with mixed results, as well as the horizontal
gaze nystagmus test and the “one leg stand” (collectively “field sobriety tests”), both of
which Stanczak refused to perform without a lawyer present. Stanczak also refused to
submit a breath sample without consulting an attorney. Ultimately, Hoyt charged
Stanczak with DUI based on the report that Stanczak was driving erratically and Hoyt’s
observations that Stanczak was unsteady on his feet, emitted the odor of an alcoholic
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beverage, had glassy eyes, slurred speech, performed poorly on the “walk and turn” test,
and refused to submit a breath sample.
¶5 At trial, the State proposed five jury instructions, which were later given as Jury
Instructions Nos. 9-13. After Stanczak objected, the District Court amended Jury
Instruction No. 13 and provided it to the jury as follows:
You are instructed that if a person under arrest for the offense of driving
under the influence of alcohol refuses to submit to a test which detects the
presence of alcohol, proof of that refusal is admissible in a trial of that
offense. The jury may infer from the refusal that the person was under the
influence. That inference is rebuttable.
At the close of evidence, the State proposed an additional instruction, which was given as
Jury Instruction No. 14 and stated:
In Montana, a defendant has no right to speak with an attorney before a
sobriety test or to have an attorney present during a test. He must decide
whether to submit to a [blood alcohol test] BAC test before he has the right
to an attorney. A continual request to speak to an attorney before
submitting to a BAC test is deemed a refusal to take the test.
Stanczak objected to this instruction’s reference to a “sobriety test,” arguing that a
defendant has a right to consult with an attorney before submitting to a field sobriety test.
The District Court overruled Stanczak’s objection and the jury found him guilty of
driving under the influence of alcohol in violation of § 61-8-401(1)(a), MCA. Stanczak
appeals.
STANDARD OF REVIEW
¶6 This Court reviews jury instructions in a criminal case to determine whether, as a
whole, they fully and fairly instruct the jury on the law applicable to the case. State v.
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Michaud, 2008 MT 88, ¶ 16, 342 Mont. 244, 180 P.3d 636. Recognizing that the district
courts have broad discretion in instructing the jury, we review a district court’s decision
regarding jury instructions for an abuse of discretion. State v. Field, 2005 MT 181, ¶ 16,
328 Mont. 26, 116 P.3d 813.
DISCUSSION
¶7 1. Did the District Court err by instructing the jury that Stanczak had no right
to consult with an attorney before performing a field sobriety test?
¶8 Stanczak argues that Jury Instruction No. 14 did not, as a whole, correctly instruct
the jury on the applicable law. While conceding that he did not have the right to consult
with counsel prior to submitting a breath sample, Stanczak argues he had the right to
consult with counsel prior to performing the field sobriety tests.
¶9 A defendant’s right to counsel in a custodial interrogation derives from the
defendant’s right against compelled self-incrimination under the Fifth Amendment to the
United States Constitution and Article II, Section 25 of the Montana Constitution. State
v. Van Kirk, 2001 MT 184, ¶ 21, 306 Mont. 215, 32 P.3d 735. We noted in Van Kirk that
this right applies only to custodial interrogation and that “[a] mere request that the
suspect perform a series of sobriety tests, done without any interrogation of the suspect,
does not constitute a custodial interrogation.” Van Kirk, ¶ 22.
¶10 Trooper Hoyt merely requested that Stanczak perform field sobriety tests, without
conducting an interrogation. Therefore, as explained in Van Kirk, there was no custodial
interrogation and Stanczak had no constitutional right to obtain counsel before
completing the tests. Accordingly, the District Court’s instruction that “a defendant has
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no right to speak with an attorney before a sobriety test or to have an attorney present
during a test” fully and fairly instructed the jury on the applicable law.
¶11 2. Did the District Court err by instructing the jury that it could infer Stanczak
was under the influence of alcohol because he refused to perform a field sobriety test
before consulting with an attorney?
¶12 Stanczak argues that Instruction No. 14’s “erroneous recitation” of his rights,
coupled with Instruction No. 13’s directive that the jury may infer from a person’s refusal
“to submit to a test which detects the presence of alcohol” that the person was under the
influence of alcohol, was reversible error. The State counters that Stanczak’s attack on
Jury Instruction No. 13 should not be reviewed because he did not preserve an objection
to this instruction. Alternatively, the State argues that Stanczak’s challenge should be
rejected because Instruction No. 13 correctly instructed the jury that it could infer that a
person was under the influence based on that person’s refusal to submit to a test which
detects the presence of alcohol.
¶13 As a general rule, a party may raise on appeal only issues that were properly
preserved before the district court. State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244,
194 P.3d 683. Stanczak initially objected to Instruction No. 13 as proposed, but he
accepted the District Court’s amendment to the instruction by indicating that, as
amended, he had “no objection” to the instruction. However, as Stanczak points out in
his reply brief, he is not simply challenging Instruction No. 13. Rather, he contends that
based on the District Court’s decision to give Instruction No. 14, the jury likely inferred,
because of Instruction No. 13, that he was under the influence of alcohol based on his
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demand to speak with an attorney before agreeing to perform the sobriety tests. Thus, to
the extent Stanczak’s discussion of Instruction No. 13 is linked to his challenge to
Instruction No. 14, we conclude his argument is properly made on appeal.
¶14 As we have already explained, Instruction No. 14 was proper because, without
custodial interrogation, a defendant generally does not have a Fifth Amendment or
Article II, Section 25 constitutional right to consult with an attorney prior to performing
field sobriety tests. Thus, the remaining issue is whether the permissible inference
provisions of § 61-8-404(2), MCA, as set forth in Instruction No. 13, apply to persons
who refuse to perform field sobriety tests.
¶15 Stanczak contends that permitting the jury to infer that “he was under the
influence based upon his request to speak with an attorney prior to performing the [field
sobriety tests]” contravenes § 61-8-404(2), MCA, because the only “tests” enumerated in
the statute are tests of a person’s blood or breath—not field sobriety tests.
¶16 The statute provides, in pertinent part, that “a report of the facts and results of one
or more tests of a person’s blood or breath is admissible in evidence . . .,” as is “a report
of the facts and results of a physical, psychomotor or physiological assessment . . . .”
Section 61-8-404(1)(b)-(c), MCA (2007). The statute further provides that “[i]f the
person under arrest refused to submit to one or more tests as provided in this section,
proof of the refusal is admissible . . .” and “[t]he trier of fact may infer from the refusal
that the person was under the influence.” Section § 61-8-404(2), MCA (2007).
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¶17 Our purpose in construing a statute is to ascertain the Legislature’s intent and to
give effect to the legislative will. Section 1-2-102, MCA. In ascertaining legislative
intent, we look first to the plain meaning of the words used. Van Der Hule v. Mukasey,
2009 MT 20, ¶ 10, 349 Mont. 88, 217 P.3d 1019. The statute applies to a person who
“refuses to submit to one or more tests as provided in this section . . . .” Section 61-8-
404(2), MCA. Stanczak correctly notes that § 61-8-404(1)(a) and (b), MCA, refer only
to “blood or breath” tests, and that § 61-8-404(1)(c), MCA, refers to “a physical,
psychomotor, or physiological assessment . . . .” However, despite the fact that
Legislature used the term “assessment” rather than “test” in describing the physical,
psychomotor, or physiological methods of determining intoxication, we cannot
reasonably conclude that these “assessments” are not “tests” for purposes of § 61-8-
404(2), MCA. Clearly, the physical, psychomotor, and physiological assessments
referenced by the Legislature are the very field sobriety tests Stanczak refused to
perform.
¶18 In our discussion of § 61-8-404(2), MCA (2005), in State v. Miller, 2008 MT 106,
¶ 16, 342 Mont. 355, 181 P.3d 625, we mentioned that “the defendant’s refusal to submit
to a blood, breath, physical, psychomotor, or physiological test” is admissible in a DUI
trial under the statute. In State v. Hudson, 2005 MT 142, ¶ 21, 327 Mont. 286, 114 P.3d
210, we generally referenced field sobriety tests as falling within the meaning of § 61-8-
404(2), MCA.
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¶19 We conclude that the District Court’s instructions correctly instructed the jury on
the applicable law and did not raise an inappropriate inference.
¶20 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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