March 1 2011
DA 10-0175
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 33
PENNY ANN NICHOLS,
Petitioner and Appellant,
v.
THE DEPARTMENT OF JUSTICE,
DRIVER’S LICENSE BUREAU,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 09-706
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Bryan Charles Tipp and Brett D. Schandelson, Tipp & Buley, P.C.,
Missoula, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Matthew T. Cochenour, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Susan E. Boylan, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: January 12, 2011
Decided: March 1, 2011
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Penny Nichols (Nichols) appeals from the order of the Fourth Judicial District Court,
Missoula County, denying her petition to set aside the Department of Justice’s (DOJ)
suspension of her driver’s license pursuant to § 61-2-402, MCA. We affirm.
¶2 We consider the following issue on appeal:
¶3 Does the DOJ’s suspension of Nichols’s driver’s license pursuant to § 61-2-402,
MCA, violate her right to be free from an unreasonable search and seizure?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Missoula County Sheriff deputies stopped Nichols for a traffic infraction on June 1,
2009. The deputies observed Nichols display signs of intoxication. Nichols performed the
standard field sobriety tests and provided a breath sample on a Preliminary Alcohol
Screening Test (PAST) device. Based on Nichols’s performance of the field sobriety tests
and the results of the PAST, the deputies arrested Nichols for DUI and transported her to the
Missoula County Detention Center (MCDC) for DUI processing. Nichols refused to provide
a breath sample on the Intoxilyzer 8000 at MCDC.
¶5 DOJ suspended Nichols’s driver’s license pursuant to § 61-8-402(4), MCA, because
of her refusal to provide a breath sample pursuant to § 61-8-402(1)-(2), MCA. On June 8,
2009, Nichols filed a “Petition to Set Aside Driver’s License Suspension, Pursuant to § 61-8-
403, MCA, or in the Alternative, For Declaratory Relief Setting Aside Driver’s License
Suspension.”
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¶6 For the purposes of this civil proceeding only, Nichols stipulated that the officers
validly had stopped her car for a traffic infraction, that the officers validly had arrested her
for DUI, and that she had refused the requested breath test at MCDC. Nichols argued during
the civil proceeding that the statutory requirements to provide multiple alcohol breath tests
violated her right to be free from unreasonable searches, her right to not be compelled to
incriminate herself, and her right to privacy.
¶7 The District Court rejected Nichols’s constitutional challenges. The court “stresse[d]
that this is not a criminal action charging the Petitioner with driving while under the
influence” and that Nichols’s constitutional arguments “should be raised in the criminal
action.” The court limited the issue “in this civil action to whether law enforcement can
seize the Petitioner’s driver’s license under the ‘implied consent’ statutes for refusing a
second breath test at the detention center.” The court “nevertheless” undertook a discussion
of Nichols’s constitutional challenges as they related to the civil proceeding, determined that
the challenges lacked merit, and denied her petition.
STANDARD OF REVIEW
¶8 We review a district court’s ruling on a petition to reinstate a driver’s license to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct. Brown v. State, 2009 MT 64, ¶ 8, 349 Mont. 408, 203 P.3d
842. We review for correctness a district court’s interpretation of constitutional law. State v.
Michaud, 2008 MT 88, ¶ 15, 342 Mont. 244, 180 P.3d 636.
DISCUSSION
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¶9 Does the DOJ’s suspension of Nichols’s driver’s license pursuant to § 61-2-402,
MCA, violate her right to be free from an unreasonable search and seizure?
¶10 Montana law permits law enforcement officers to administer two separate breath
alcohol tests during a criminal DUI investigation. Sections 61-8-402, -409, MCA. Section
61-8-409, MCA, provides that a driver is considered to have given consent to a preliminary
alcohol screening test requested by a police officer in a DUI investigation. Section 61-8-402,
MCA, similarly provides the so-called implied consent for “a test or tests of the person’s
blood or breath” when the police officer has reasonable grounds to believe the person has
been driving under the influence. Section 61-8-402(1)-(2), MCA.
¶11 The 1995 Montana Legislature enacted the additional implied consent law in § 61-8-
409, MCA, to provide for the use of pre-arrest PASTs to estimate the alcohol concentration
of persons suspected of driving under the influence. Smith v. State, 1998 MT 94, ¶ 8, 288
Mont. 383, 958 P.2d 677. Section 61-8-409(2), MCA, states that a person’s providing of a
PAST pursuant to § 61-8-409, MCA, does not satisfy the person’s obligation to submit to a
test under § 61-8-402, MCA. Section 61-8-409(2), MCA, “clearly differentiates between a
PAST and a test under MCA § 61-8-402.” Id. at ¶ 14. The two tests neither conflict with
each other nor suffer unconstitutional vagueness. Id. at ¶ 18.
¶12 If an arrested person refuses to submit to one or more tests requested by the officer,
the officer may not administer the test, but immediately must seize the person’s driver’s
license on behalf of the DOJ. Section 61-8-402(4), MCA. The DOJ then suspends the
person’s driver’s license for the applicable time period as set out in § 61-8-402(6), MCA. Id.
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¶13 The person has a limited right to appeal the driver’s license suspension under § 61-8-
403, MCA. The court hearing the appeal may consider only certain issues delineated in §
61-8-403(4)(a), MCA. These issues include whether the peace officer had reasonable
grounds for the stop and arrest and whether the person refused to submit to the test
designated by the officer. Section 61-8-403(4)(a)(i), (iv), MCA. Section 61-8-403(4)(b),
MCA, provides that “[b]ased on the issues in subsection (4)(a) and no others,” a district court
shall determine whether the petitioner’s license is subject to suspension or revocation.
¶14 Nichols has stipulated to all the issues that a district court may consider pursuant to
§ 61-8-403, MCA. Nichols’s petition does not rest on § 61-8-403, MCA, but can be
characterized only in its proposed alternative as a petition “For Declaratory Relief Setting
Aside Driver’s License Suspension.” Nichols seeks a declaratory judgment that the implied
consent provisions of §§ 61-8-402 and -409, MCA, forced an unconstitutional search or
seizure by threatening her with the suspension of her driver’s license.
¶15 Nichols argues that the Department’s seizure and suspension of her driver’s license,
pursuant to § 61-8-402(4), MCA, violated her constitutional rights under Article II, Sections
10 and 11 of the Montana Constitution. Nichols does not indicate clearly whether she
believes that the unconstitutional search occurred when the officer requested the second
breath test after explaining the consequences of refusal, when the officer seized her license,
or if the unconstitutionality existed when the legislature authorized implied consent
provisions in both §§ 61-8-402 and -409, MCA. We take these possibilities one at a time.
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¶16 First Nichols could not have suffered a search of her breath at MCDC because she
refused to provide a breath sample. Nichols also could not have suffered a seizure due to the
“threat” of driver’s license suspension. Nichols has not explained how the officer’s
explanation of the rights and consequences of her choices constituted either a “threat” or an
unconstitutional search or seizure. We note that Montana’s statutory right of refusal affords
arrested intoxicated drivers even greater protections from self-incrimination than required
either by the United States or Montana Constitution. South Dakota v. Neville, 459 U.S. 553,
565 (1983); State v. Turbiville, 2003 MT 340, ¶ 16, 318 Mont. 451, 81 P.3d 475.
¶17 We next address Nichols’s contention that the officers’ seizure of her driver’s license
pursuant to § 61-8-402, MCA, constituted an unconstitutional seizure. The state lawfully
may seize and suspend a person’s driving privileges for refusing to take a blood-alcohol test
pursuant to the state’s implied consent laws. Neville, 459 U.S. at 560. We have upheld the
constitutionality of the related consequence of refusing a breath test—the rebuttable
inference in § 61-8-404(2), MCA—over challenges based on due process, the right to
counsel, and the protection against self-incrimination. Michaud, ¶ 63. Driving in Montana
constitutes a privilege, not a right. Id. at ¶ 58 (citations omitted). If a person wishes to enjoy
the benefits of this privilege, the person must accept concomitant responsibilities, including
the implied consent provisions in §§ 61-8-402 and -409, MCA. Id. The seizure and
suspension of Nichols’s driver’s license constitutes a civil administrative penalty and has not
violated her protections against unreasonable searches and seizures.
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¶18 Finally, we address Nichols’s argument that the implied consent laws work an
unlawful infringement on her constitutional rights. Nichols asserts that the officers’ requests
for two breath tests constitute “multiple, invasive, warrantless” searches that require warrant
exceptions. Nichols argues that the Court must apply strict scrutiny and conclude that any
compelling interest based on exigency extinguished at the moment that the officers had
obtained the results from the PAST.
¶19 DOJ responds that Nichols has based her argument on the incorrect legal premise that
Montana’s statutory implied consent provisions constitute common law warrant exceptions
to the warrant requirement. DOJ further argues that Nichols’s exigent circumstances
argument is wholly irrelevant to the constitutionality of the implied consent condition to the
privilege to drive in Montana. DOJ contends that the implied consent provisions do not
infringe on a fundamental right, that driving is not a right at all, that the statutory right of
refusal actually provides greater protections than constitutionally required, and that the
implied consent provisions must only pass rational basis review. We agree.
¶20 Courts have recognized only a few “specifically established and well-delineated”
search warrant exceptions. State v. Loh, 275 Mont. 460, 468, 914 P.2d 592, 597 (1996).
Those few warrant exceptions are “jealously guarded and carefully drawn.” State v. Ellis,
2009 MT 192, ¶ 73, 351 Mont. 95, 210 P.3d 144. Nichols does not identify a single
authority for her proposition that implied consent statutes constitute a warrant exception. We
refuse to conflate warrant exceptions with implied consent provisions as Nichols proposes.
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The suspension of a driver’s license constitutes a civil penalty that results from the refusal to
provide a breath sample under the circumstances set forth in §§ 61-8-402 and -409, MCA.
¶21 The flaw in Nichols’s argument becomes readily apparent when one considers the
remedy that Nichols seeks. The exclusionary rule provides the standard remedy for
constitutional violations of illegal searches by excluding illegally obtained evidence from
subsequent prosecutions against the victim of the illegal search. Nichols does not request the
exclusion of breath test evidence. No such evidence exists. Nichols instead requests that
this Court declare the implied consent statutes unconstitutional as applied to these facts. We
reject Nichols’s unavailing invitation to declare the implied consent laws unconstitutional as
infringements on the right to be free from unreasonable searches and seizures.
¶22 Nichols has stipulated to the legality of the stop and her arrest for the purposes of this
civil proceeding. Nichols challenges the constitutionality of §§ 61-8-402 and -409, MCA.
We conclude that the administrative seizure and suspension of Nichols’s driver’s license
does not present a cognizable seizure subject to heightened scrutiny. The two implied
consent provisions have not worked an unreasonable search or seizure against Nichols.
¶23 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
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/S/ JIM RICE
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