State v. Minkoff

N O . 01-065

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 29

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ALLEN FRANCIS MINKOFF.

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Wendy Holton (argued), Attorney at Law, Helena, Montana

For Respondent:

Robert J. Wood (argued), City Prosecutor, Helena, Montana

Heard: November 27,200l
Submitted: December 5,200l
Decided: February 25,2002
Filed:
C‘hicfJusticc Karla M. Gray delivered the Opinion of the Court

111 A jury convicted Allen Francis Minkoff of driving under the influence of alcohol

(DUI) and the First Judicial District Court, Lewis and Clark County, sentenced him and

entered judgment accordingly. Minkoff appeals.

12 Minkoffs first issue on appeal is whether the District Court erred in failing to dismiss

the charge against him on grounds that his right to have an independent blood test was

frustrated when the arresting officer told him a blood test would result in a higher alcohol

reading than the breath test. Because we reverse on this issue, we do not reach the other

issues Minkoff raises.

BACKGROUND

ll3 A Helena, Montana, police officer stopped Minkoff on suspicion of DUI early on the

morning of January 3 1,1999. Based on his performance on field sobriety tests, Minkoffwas

arrested and taken to the Lewis and Clark County Detention Center. There, the ofticer read

him the implied consent form, which included a provision informing Minkoff of his right to

have a doctor or nurse administer an independent test for alcohol or drugs at his own

expense, and asked him to take a breath test.

14 After being read the implied consent form, Minkoff asked the officer whether he

should get an independent blood test. Initially, the officer replied that he could not advise

Minkoff and that an independent blood test would be given only at Minkoffs own expense.

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The following cxchangc, recorded on a videotape which is part ofthe record on appeal, then

took place:

MINKOFF: What should I do? . Is there any difference between the blood
test and the breath test?

OFFICER: Yeah, but the blood test comes out with the exact amount and it’s
going to be higher than what the breath test is.

MINKOFF: So, it’s going to be worse?

OFFICER: It’s going to be higher on the blood test, but the blood test isn’t
mine. The blood test, if you wanted it, would be . . it would be yours, it
would be at your expense.

MINKOFF: Well, thank you for that.

Minkoff then took the breath test, which measured his breath alcohol concentration at ,167.

He did not request an independent blood test.

ll5 After a jury convicted Minkoff of DUI, the District Court sentenced him and entered

judgment. Minkoff appeals.

DISCUSSION

W Did the District Court err in failing to dismiss the charge against Minkoff on grounds
that his right to have an independent blood test was frustrated when the arresting officer told
him a blood test would result in a higher alcohol reading than the breath test?

77 Minkoff moved the District Court to dismiss the charge against him on the basis that

he was denied due process of law. He contended he did not exercise his right to an

independent blood test because of the ofticer’s response to his inquiry about whether to get

the blood test. The District Court denied his motion and Minkoff asserts error.

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7s A district court’s grant or denial ofa motion to dismiss in a criminal cast presents a

question of law which we review cle MOVO. State v. Sidmore (1997), 256 Mont. 2 l&223,95 I

P.2d 558, 562 (citation omitted).

19 It is undisputed that a person accused of a criminal offense has a due process right to

obtain existing exculpatory evidence. See State v. Swanson (1986), 222 Mont. 357,360,722

P.2d 1155, 1157. It also is undisputed that, when the charged offense is DUI, the accused

has a right to obtain a test of the amount of alcohol in his or her blood independent of the test

offered by the arresting officer, without regard to whether the accused has taken or rejected

the offered test. Swnnson, 222 Mont. at 360-61,722 P.2d at 1157. Finally, it is undisputed

that, while a law enforcement officer has no duty to affirmatively assist a person accused of

DUI in obtaining an independent blood test, the officer cannot frustrate or impede the

person’s efforts to do so. See Swanson, 222 Mont. at 361,722 P.2d at 1157-58. Moreover,

we have held that the accused must be informed of his or her right to independent testing and

that failure to so advise is a due process violation. State v. Strand (1997), 286 Mont. 122,

127,951 P.2d 552,555.

110 In the present case, the District Court relied on Sidmore in denying Minkoffs motion

to dismiss. There, we clarified and, in fact, limited “the Swnnso~i rule” that a DUI accused

has a due process right to an independent blood test. We held that two criteria must be

established to support an allegation of denial of due process rights with regard to the right

to an independent test: (1) the accused must timely request the independent test, and (2) the

officer must unreasonably impede the right to the test. Siri~orc. 286 Mont. at 234-35, 951

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I’.Zd at 508-W. I-lcre. Minkoffdid not rcqucst the indcpcndcnt test and, thcrcfore. on the

face of it, the District Court did not err in concluding that the Sidmore criteria had not been

met.

711 This case, however, presents yet another factual twist in ourjurisprudence addressing

the right to an independent blood test. It is clear on this record that, having been properly

advised of his right to the test, Minkoff was considering that test. He asked the officer for

further advice regarding whether to obtain the independent test and the officer initially, and

properly, declined to provide such advice. Minkoff again asked for the officer’s advice on

getting the independent test and the officer twice stated--without equivocation--that the blood

test is “going to be higher” than the breath test. Minkoff ultimately did not request the test.

712 On these facts, and given the immediacy of the officer’s latter advice, we conclude that

the period within which Minkoff could “timely request” the test under the first Sidmore

criterion had not passed when the officer advised him that the independent blood test would

be “higher”--that is, that it would show more alcohol in Minkoff’s system than the breath test

offered by the officer and taken by Minkoff. To conclude otherwise would be to permit

frustration of a person’s due process right to an independent test in advance of the person’s

reasonable opportunity to request the test.

713 This brings us, then, to the question of whether the officer unreasonably impeded

Minkoffs right to obtain an independent test. Minkoff relies on Lnu v. Srnte (Alaska App.

1995) 896 P.2d 825, in urging that the officer frustrated and unreasonably impeded his right
to obtain exculpatory cvidcncc via an indepcndcnt blood test. The State of Montana

advances Stute V. Clznstain (Kan. 19981,960 P.2d 7.56, for the opposite result.

114 In Lau, a police officer with whom Lau was acquainted happened to be at the police

station when Lau was brought in on a charge of driving under the influence. On appeal from

his conviction, Lau argued that the state interfered with his right to an independent blood test

because the officer dissuaded him from taking a blood test--telling him the alcohol content

measure would be higher than in the breath test--after Lau had already told the arresting

officer he wanted the blood test performed. The appeals court reversed Lau’s conviction,

reasoning that, even if the officer were acting in good faith, “the fact remains that [he]

dissuaded Lau from exercising his rights.” Lau, 896 P.2d at 828. “[A] government officer

having custody of an arrested driver cannot attempt to dissuade the driver from exercising

the right to an independent blood test.” Lau, 896 P.2d at 828.

715 In the Kansas case, Chastain was charged with involuntary manslaughter after a motor

vehicle accident which resulted in another person’s death. A jury returned a verdict of guilty

of the lesser included offense of driving while under the influence of alcohol. Chastain

appealed, arguing that the arresting officer unreasonably prevented him from taking a blood

alcohol test he requested both before and after the breath test. The arresting officer had

informed Chastain that he could obtain an additional test and that the officer would transport

him to obtain one, but also advised that a blood test would register a higher concentration of

alcohol. The Kansas Supreme Court addressed Kansas statutes and cases, as well as cases

from other jurisdictions, and held that under the particular facts and circumstances of that

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cast, the officer’s statement that a blood test would register higher, without any ftlrthcr

evidence of unreasonable interference or coercion. did not establish a deprivation of

Chastain’s right to further testing. Chastuin, 960 P.2d at 76 1. Chnstuin does not include any

discussion of the constitutional ramifications relating to the right to obtain exculpatory

evidence.

116 We are persuaded that Lau better reflects the law in Montana than does Chastain. We

have held that, while police have no duty to assist an accused in obtaining independent

evidence of sobriety, “they cannot frustrate such an effort through either affirmative acts or

their rules andregulations.” Swanson, 222 Mont. at 361-62,722 P.2d at 1158 (see nlso ?j 61-

8-405(2), MCA, “The peace officer may not unreasonably impede the person’s right to obtain

an independent blood test”). Here, the officer’s repeated statements that the blood test would

show a higher blood alcohol level, albeit well-intentioned, were affirmative acts which would

frustrate, if not obliterate, the intention of any rational arrestee to obtain an independent

blood test. Rare, indeed, would be the person who would persist in asking for an

independent blood test after being advised--twice--that the amount of alcohol in the blood

test result would show as higher than the amount in the offered breath test. We conclude that

the officer’s advice frustrated and unreasonably impeded Minkoffs due process right to the

independent blood test.

1117 The final question before us is the appropriate remedy for the violation of Minkoffs

due process rights. In his opening brief, Minkoff requests a remedy of either dismissal ofthe
charge against him or suppression of the results of the breath test. During oral argument, hc

urged dismissal.

1118 In Swcmson, 222 Mont. at 359,722 P.2d at 1156, the defendant refused the breath test

offered by the state, and requested and obtained an independent blood test. The blood

sample was not analyzed because law enforcement failed to refrigerate it during Swanson’s

post-arrest incarceration and, as a result, no analysis was possible. The trial court denied

Swanson’s motion to dismiss, which was based on a denial of his due process rights. We held

on appeal that the state’s actions (or, more appropriately, inactions) frustrated Swanson’s

right to obtain exculpatory evidence and held, without further discussion, that “[dlismissal

of the case with prejudice is the appropriate remedy because the State’s action precluded a

fair trial by preventing Swanson from gathering exculpatory evidence.” Swanson, 222 Mont.

at 362, 722 P.2d at 1158.

719 In Strand, the defendant took the offered breath test and was not advised of his right

to an independent test because the police department’s policy was to read the implied consent

form containing information about the right to an independent test only if the defendant

agreed to submit to the breath test. As stated above, we held on appeal that law enforcement

officers have an affirmative duty to inform a person arrested for DUI of the right to an

independent blood test. Strand, 286 Mont. at 127, 951 P.2d at 555. We further held that

suppression of the breath test was the appropriate remedy on the basis that, if the state

frustrated the defendant’s right to obtain exculpatory scientific evidence of sobriety via a

blood test, it could not be allowed to use its own scientific evidence of intoxication--the

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breath test--against the dcfcndant. St~i~zrl, 286 Mont. at 127-28, 95 I P.2d at 55 j-56. We

distinguished the dismissal remedy afforded in Sn~~zso~~ on the grounds that, there, the state

did not obtain any scientific evidence from the defendant--that is, the defendant refused the

breath test--so there was no evidence to suppress. Strand, 286 Mont. at 129,95 1 P.2d at 556.

We concluded that where the state had its scientific evidence, but had frustrated the

defendant’s ability to obtain similar exculpatory evidence, suppression was appropriate.

Strand, 286 Mont. at 129,951 P.2d at 556.

120 On the face of it, the Strand suppression remedy appears to be applicable here. As in

Strand, the State in the present case obtained its scientific evidence via the breath test

Minkoff took. Minkoff did not obtain his scientific exculpatory evidence because his right

to do so was frustrated by the officer. We conclude, however, that the remedy afforded in

Strund is manifestly incorrect.

121 At the outset, it is appropriate to observe again that the dismissal remedy afforded in

Swanson was not based on a legal analysis. The defendant had moved for dismissal, the

district court had denied the motion, and the defendant appealed that denial. Nothing in

Swanson suggests that an issue regarding the appropriate remedy was raised there.

122 In Strand, the issue of dismissal, as urged by the defendant, versus suppression, as

argued by the state, was squarely before us. As discussed above, we opted for suppression

and, in doing so, distinguished Swunso~z on the facts regarding whether the state’s offered

breath test had been taken or refused. In discussing the appropriate remedy in Strand,

however, we made several statements on which we did not follow through. In that regard,

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while we rclicd on a Washington Supreme Court cast for the proposition that the state cannot

be permitted to use scientific evidence ofintoxication which the defendant is unable to rebut

because he was not apprised of his right to independent testing, we also stated that, while

independent blood test results have value as rebuttal-type evidence to the state’s evidence,

such results also “have independent value as compelling scientific evidence, regardless ofthe

evidence introduced by the State.” Strand, 286 Mont. at 128, 951 P.2d at 555 (citation

omitted). We discussed the possibility that a defendant might elect not to challenge

potentially intoxication-related observations by the officer or field sobriety test results, but

might produce--if given the opportunity--a scientific blood test conclusively showing a blood

alcohol concentration below the legal limit. Strand, 286 Mont. at 128, 95 1 P.2d at 555-56.

Had we followed through on these statements, rather than limiting our focus to the question

of “like evidence,” dismissal would have been the appropriate remedy.

123 Here, the State admitted Minkoff’s ,167 blood alcohol content as evidence during the

jury trial. It also presented the arresting officer’s testimony and videotape evidence on

Minkoff s performance on field sobriety tests: he did not successfully recite the alphabet

after the letter “T”; he swayed during the one-legged stand and put his hand on a door as a

brace; and, during the walk and turn test, he stepped off the line, nearly fell over, and took

more steps than he was instructed to take. Suppressing the State’s breath test and allowing

a new trial would leave Minkoff unable to rebut the field sobriety test evidence through an

independent blood test--the right to which he was effectively denied. We conclude

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suppression of the breath test results is insufficient to remedy the deprivation of that right

and, accordingly, we overrule the remedy set forth in Stmnd.

l/24 We hold, therefore, that the District Court erred in failing to dismiss the charge against

Minkoff on grounds that his right to have an independent blood test was frustrated when the

arresting officer told him a blood test would result in a higher alcohol reading than the breath

test.

125 R e v e r s e d .

We concur:
Justice Patricia 0. Cotter dissents

7126 In Stute v. Sidmore (1997) 286 Mont. 2 l&95 1 P.2d 558, we specifically stated that

in order to support an allegation of a violation of a defendant’s due process rights, two

criteria must be met. First, the defendant must have timely claimed the right to an

independent blood test. Second, a law enforcement officer must have ” unreasonably

impeded the defendant’s right to obtain an independent blood test.” Sidmore, 286 Mont. at

234-35, ,951 P.2d at 568-69. In my judgment, neither of these criteria have been satisfied

here.

727 First, the Court admits that Minlcoff did not timely claim the right to an independent

blood test. The majority escapes the application of this criteria, however, by saying that the

time had not passed within which Minkoff could have timely requested the test under the

Sidmore criterion. To my mind, the time frame is irrelevant. The cases upon which Sidmore

is predicated clearly contemplate both that the defendant make a request for the right to have

a blood test, and that an officer then unreasonably impede that right. The officer in this case

did not impede an asserted right, because when Minkoff solicited the officer’s advice, he had

not yet decided whether he wanted to take a blood test or not. In other words, the officer

could not have impeded a right not yet asserted.

728 In Sidmore, we made it clear that the right must both be asserted and then impeded.

We said:

Accordingly, to clarify our rule in Swnrrson that one accused of a crime

12
 involving intoxication is entitled to obtain an independent blood test, we hold
that the rule applies only when (I) the defendant has timely claimed the right
to an independent blood test, and (2) a law enforcement officer has
unreasonably impeded the defendant’s right to obtain an independent blood
test. Both criteria must be satisfied in order to support an allegation of a
violation of a defendant’s due process rights. The Swanson rule will not apply
if the defendant either fails to timely request the independent blood test, or the
independent blood test is unavailable through no unreasonable acts of law
enforcement.

Sidmore, 286 Mont. 234-35,95 1 P.2d 568-69. If we were to properly follow the clear rule

announced in Sidmore, our inquiry would end once we determined that the defendant never

timely claimed the right to an independent blood test. We would never reach the second

criterion.

729 Moreover, I find it significant that the facts were starkly different in the Lau case,

upon which the majority relies for the ultimate conclusion it reaches here. Lau was given a

“notice of right to independent test” form following his arrest, and specifically indicated

thereon that he chose to have blood drawn for a test at his own expense. Lau followed this

written assertion of his right with a verbal assertion of the right, and in response, the State

arranged to summon a nurse to draw Lau’s blood. It was not until after the nurse was

summoned that Lau changed his mind, as a result of the informal conversations he had with

a police officer. So, the first criterion of our Sidmore test was unequivocally met in LOU,

whereas it was not met here.

730 Second, whatever Minkoff read into the police officer’s statements made to him, the

officer did not “unreasonably impede” Minkoff s right to obtain an independent blood test,

13
as the second criterion of SI’&0~e requires.

‘113 1 The Court here concedes that the Sidrnore Court clarified the “Swu~~son rule,”

established in the case of State v. Swrtnso/z (1986) 222 Mont. 357, 722 P.2d 1155. In

Swanson, we concluded that the State interfered with Swanson’s attempt to obtain and utilize

an independent blood test after he was charged with driving under the influence of alcohol.

We noted in Swanson that, after Swanson requested that a blood sample be taken, he was

transported to the hospital for those purposes. However, after he was returned to the sheriffs

office, the blood sample, clearly marked “keep refrigerated,” was left unrefrigerated for two

days, resulting in its questionable validity. As a result, the sample was never analyzed,

depriving Swanson of potential exculpatory evidence. We concluded that since the State’s

conduct precluded Swanson from gathering exculpatory evidence, dismissal of his case was

appropriate. In answering the question of whether the State had interfered with Swanson’s

attempt to obtain his independent test, we relied upon the California Supreme Court case, 1~2

R Martin (Cal. 1962), 374 P.2d 801. The California Supreme Court concluded in Martin

that duly constituted authorities could not hamper or interfere with a defendant’s efforts to

obtain a sampling of his own blood. The court said:

We are persuaded to such conclusion in any instance where the conduct of the
authorities, whether through affirmative action or by the imposition of their
rules and regulations, imposes any material obstacle in the path of the accused.

Martin, 374 P.2d at 803. In SWULYOJ~, we concluded that abdicating their responsibility to

put the blood sample in safe keeping was such an obstacle.

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1132 l-lere, the State took no aflirmative action. Nor did it impose any “material obstacle”

in Minkoff s path. The State did not deny Minkoff his right to take a blood test (Bate, Ciry

of‘Bozeman v. Peterson (1987) 227 Mont. 418,739 P.2d 958, overruled on othergrounds

by State v. Wuters, 1999 MT 229,296 Mont. 101,987 P.2d 1142); nor did the State advise

Minkoff he could take a blood test and then refuse to take him to the hospital (City of

Whitefish v. Pinson (1995), 271 Mont. 170, 895 P.2d 610); or invalidate the results of the

blood test by its carelessness (Swanson). Minkoff was specifically advised that he had the

right to have a doctor or nurse administer an independent test for alcohol at his own expense.

Upon hearing this, the colloquy set forth at 7 4 of the majority Opinion took place. The

officer initially declined to give his opinion on the advisability of taking a blood test until

after he was prodded to do so by Minkoff. The officer did not, however, take affirmative

action or impose a material obstacle to the taking of the test.

133 Construing the police officer’s solicited comment to Minkoff as an ‘unreasonable

impediment” to Minkoff s right to obtain an independent blood test completely eviscerates

the rule we announced in Swanson and subsequently implemented in Peterson, Pinson,

Sidmore, and other cases too numerous to mention. I believe that, without saying so, we have

effectively overruled State v. Sidmore and the substantial body of case law upon which

Sidmore relies. I would follow the letter and spit-t of Peterson, Swnrzsorz and Sidmove, and

conclude that the District Court did not err in refusing to dismiss the charges against

Minkoff. I would accordingly have reached the remaining issues raised by Minkoff in his

15
appeal.

Justice

Justice W. William Leaphart joins in the foregoing dissent.

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