State v. Stueck

No. 96-081
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Appellant,
v.
GREGORYS. STUECK,
Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General,
Barbara C. Harris, Ass't Attorney General,
Helena, Montana
Mike Salvagni, Gallatin County Attorney,
Jane Mersen, Deputy County Attorney,
Bozeman, Montana
For Respondent:
Karl P. Seel, Attorney at Law, Bozeman, Montana

Submitted on Briefs: July 18, 1996
Decided: December 9, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

The State of Montana (State) appeals from the order of the
Eighteenth Judicial District Court, Gallatin County, suppressing
blood alcohol evidence obtained from Gregory S. Stueck (Greg). We
affirm.
The dispositive issue on appeal is whether the District Court
erred in concluding that Montana's implied consent statute applies
to a negligent vehicular assault prosecution so as to preclude the
admissibility of blood sample evidence forcibly drawn after Greg
refused to submit to a blood alcohol test.
Shortly before midnight on January 19, 1995, Montana Highway
Patrol Officer Joseph Campbell (Campbell) was traveling east on
Interstate 90 near Belgrade, Montana. He observed what appeared to
be a large cloud of either smoke or steam developing approximately
three-quarters of a mile ahead of him in the westbound lanes of
traffic. As he approached the scene, Campbell saw a vehicle emerge
from the cloud; the vehicle itself was trailing a huge cloud of
steam and traveling west toward the Belgrade interchange. It
appeared to Campbell that an accident had just occurred.
As Campbell approached the accident site, he saw a pickup
truck in the median, a man staggering near the pickup and debris
from the accident littering the median and the highway. The dazed
man, Eric W. Troth (Troth), was the driver of the disabled pickup
in the median; he had sustained a substantial bump on the back of
his head. Campbell theorized that the vehicle he had seen emerge

2
from the vaporous cloud was responsible for the accident.
Observing a "fluid trail" heading west on the highway from the
point of impact, Campbell put Troth in his patrol car and they
began following the fluid trail toward the Belgrade interchange.
Campbell and Troth followed the fluid trail until it led them
off the highway and down several local roads; it then tapered off
to a point where Campbell was unable to detect its direction. With
an injured man in his car and debris from the accident still
littering the highway, Campbell decided that his best course of
action was to return with Troth to the accident scene. He did so
and immediately began clearing the highway and investigating the
accident. After a wrecker arrived and lifted Troth's pickup,
Campbell detected a powder blue paint transfer on Troth's dark-
colored pickup which appeared to have been left by the vehicle
responsible for the accident.
Officer Dennis DeLaittre (DeLaittre) responded to the accident
scene five to ten minutes after Campbell and Troth's return.
DeLaittre began following the fluid trail down and off the highway
and, eventually, to Amsterdam Road. DeLaittre could see where the
vehicle leaving the fluid trail had made a right turn off of
Amsterdam Road onto Thorpe Road. The fluid trail became more
infrequent, often was in the wrong lane and ultimately consisted of
an accumulation of fluids deposited from the vehicle after it
either hit a bump or braked for a corner. About that time,
Campbell radioed DeLaittre that a baby blue paint transfer had been
found on Troth's pickup.

3
 DeLaittre continued down Thorpe Road. When the road surface
changed to gravel, he followed a single set of tire tracks visible
in the early morning frost to where a vehicle appeared to have
skidded on the roadway, backed up and pulled into a driveway.
DeLaittre observed a "baby blue Ford pickup truck with extensive
front-end damage on the driver's side" in the driveway, and radioed
Campbell that he had located the vehicle.
Campbell met DeLaittre at the driveway entrance to the
residence on Thorpe Road where the baby blue Ford pickup was
parked. Before approaching the house, the officers radioed the
dispatch office for a registration check on the pickup. Dispatch
called the registered owner, Don Stueck, who reported that his son
Greg had been using the pickup; he also provided Greg's telephone
number.
The sheriff's office telephoned Greg's home in the early
morning hours of January 20, 1995, and reached Greg's wife, Kristy
Stueck (Kristy) She was asked to go outside to talk to two
officers who were parked in her yard. Kristy complied and Campbell
and DeLaittre left their patrol cars and met her at the front door.
After explaining to Kristy that an accident had occurred, the
officers asked her if she had been driving or if Greg had been
driving and if Greg had been drinking. When she answered that Greg
had been driving the truck, they asked her to have Greg come to the
door. Kristy responded that he was sleeping and she was unable to
wake him. The officers returned to their patrol cars and, after
Kristy's second attempt to awaken him, Greg came to the door.

4
According to Campbell, Greg motioned the officers to the house and
eventually called them inside.
Campbell could smell the strong odor of alcohol on Greg at the
outset of the interview and observed that Greg started "fumbling
and trying to pull his boots on which took quite a bit of effort
and concentration . . .'I Greg initially told Campbell and
DeLaittre that his friend "Bill" had been driving the pickup that
night, but that he did not know Bill's last name. Greg then left
the house abruptly and walked outside to the truck to find his
registration and proof of insurance; the officers followed. After
further questioning, Greg admitted that he had been driving the
truck and had fallen asleep at the wheel. When he felt the impact
of the accident, Greg panicked and drove away from the scene.
Greg was arrested for three misdemeanor traffic violations,
including negligent vehicular assault, and transported to Bozeman
Deaconess Hospital. The officers did not advise Greg of the terms
of the implied consent statute, but did request a blood sample to
determine his blood alcohol content. When Greg refused to give a
blood sample, it was taken from him forcibly.
The State charged Greg in Gallatin County Justice Court with
negligent vehicular assault, failure to stop at the scene of an
injury accident and failure to give immediate notice of an injury
accident. Greg moved to suppress the evidence seized from his Ford
pickup and his residence, as well as 'I [‘cl he blood sample forcibly
withdrawn . . at Bozeman Deaconess Hospital," and to dismiss the
charges. Following a hearing, the Justice Court suppressed the

5
evidence resulting from the forced blood drawing, but denied Greg's
motion to dismiss. The State appealed, and Greg cross-appealed, to
the District Court.
The District Court granted Greg's motion to suppress the blood
sample evidence and denied the rest of his motions. The State
appeals from the District Court's suppression of the blood sample
evidence.
Did the District Court err in concluding that Montana's
implied consent law applies to a negligent vehicular
assault prosecution so as to preclude the admissibility
of blood sample evidence forcibly drawn after Greg
refused to submit to a blood alcohol test?
In granting Greg's motion to suppress the blood sample
evidence, the District Court rejected the State's contention that
State v. Thompson (1984), 207 Mont. 433, 674 P.2d 1094, rendered
§ 61-8-402, MCA, inapplicable to any offense other than driving
under the influence of alcohol (DUI). The court distinguished
Thomuson, concluding that § 61-8-402, MCA, Montana's implied
consent statute, applies to the charge of negligent vehicular
assault and, as a result, that the blood sample evidence is
inadmissible because it was taken in violation of the statute.
Where a district court grants a motion to suppress based on legal
conclusions, we review those conclusions to determine whether they
are correct. State v. Williams (1995), 273 Mont. 459, 462, 904
P.2d 1019, 1021 (citation omitted).
We begin our analysis by focusing on § 61-8-402, MCA,
Montana's implied consent statute. Section 61-8-402, MCA,
provides, in pertinent part:

6
 (1) A person who operates or is in actual physical
control of a vehicle upon ways of this state open to the
public is considered to have given consent, subject to
the provisions of 61-8-401, to a test or tests of the
person's blood, breath, or urine for the purpose of
determining any measured amount or detected presence of
alcohol or drugs in the person's body if arrested bv a
peace officer for drivins or for beinq in actual ohvsical
control of a vehicle while under the influence of
alcohol, drugs, or a combination of the two. .
.

(3) If a driver under arrest refuses upon the
request of a peace officer to submit to a test or tests
designated by the arresting officer as provided in
subsection (l), a test may not be siven, but the officer
shall, on behalf of the department, immediately seize the
person's driver's license. . . . [Emphasis added.]
In interpreting a statute, we look first to the language used
therein by the legislature. State v. Gould (1995), 273 Mont. 207,
219, 902 P.2d 532, 540. "Where the language is plain, unambiguous,
direct, and certain, the statute speaks for itself . .'I Gould,
902 P.2d at 540 (citation omitted).
According to the plain and unambiguous language used, § 61-8-
402(l), MCA, applies when the defendant has been arrested for
committing the DUI offense set forth in § 61-g-401, MCA. In such
an event, a defendant's refusal to submit to a blood alcohol test
mandates that the test "may not be given." Section 61-8-402(3),
MCA. Moreover, blood samples drawn in violation of the implied
consent statute are inadmissible as evidence in prosecutions for
DUI. Thompson, 674 P.2d at 1095 (citing State v. Mangels (1975),
166 Mont. 190, 531 P.2d 1313).
Here, Greg was not arrested for violating § 61-8-401, MCA, the
statute defining the offense of DUI. He was arrested, however, for

7
committing the misdemeanor offense of negligent vehicular assault
in violation of § 45-5-205, MCA. A person commits that offense if
he or she (1) operates a vehicle in a negligent manner; and (2) is
driving while under the influence of alcohol or drugs, "as provided
for in 61-8-401(l) [;I" and (3) his or her conduct is the cause of
bodily injury to another. Section 45-5-205(l), MCA. Thus, the DUI
offense set forth in § 61-L-401, MCA, is a specific element of--and
subsumed in--the negligent vehicular assault offense. As a result,
it is clear that, in the language of § 61-8-402(l), MCA, Greg was
"arrested by a peace officer for driving or for being in actual
physical control of a vehicle while under the influence of alcohol
. . I, Consequently, we conclude that § 61-8-402(3), MCA,
prohibited the State from forcibly giving the blood test after Greg
refused to submit to it and the blood sample evidence drawn in
violation of the statute is inadmissible. Thomoson, 674 P.2d at
1095.
The State correctly points out that, in Thomuson, we held §
61-8-402, MCA, inapplicable to a negligent homicide prosecution.
It contends, therefore, that Thompson renders § 61-E-402, MCA,
inapplicable to the negligent vehicular assault charge at issue
here and does not preclude the admissibility of the blood sample
taken without Greg's consent. The State reads Thomoson too
broadly.
In Thomuson, the defendant was charged with negligent
homicide, which is statutorily defined as negligently causing the
death of another human being. Section 45-5-104, MCA. He did not

8
consent to the taking of a blood sample for purposes of determining
the alcohol content in his blood; nonetheless, the sample was
taken. The defendant moved for suppression of the blood sample on
the basis that it had been drawn against his will in violation of
5 61-8-402, MCA, and, therefore, was inadmissible. The district
court refused to suppress the evidence, it was admitted at trial
and the defendant was convicted of negligent homicide. Thomoson,
674 P.2d at 1095. The issue before us on appeal was whether the
prohibition against nonconsensual extractions of blood samples in
§ 61-8-402, MCA, applied to prosecutions for negligent homicide.
If the prohibition applied, the blood sample drawn in violation of
the statute was inadmissible and should have been suppressed.
Thomoson, 674 P.2d at 1095.
We ultimately concluded, based on three considerations, that
§ 61-g-402, MCA, did not apply to negligent homicide convictions.
Thornson, 674 P.2d at 1096. First, and most importantly, we
focused on the legislative intent as reflected in the language of
the statute. Highlighting the "if arrested by a peace officer for
DUI" language, we concluded that the protections afforded by the §
61-E-402, MCA, prohibition against nonconsensual blood drawings are
"not engaged until there is an arrest for driving under the
influence." Thomuson, 674 P.2d at 1096. Next, we reviewed
decisions from other jurisdictions having implied consent laws
similar to Montana's and determined that "the better reasoned cases
hold that the statute does not apply to negligent homicide cases."
Thompson, 674 P.2d at 1096-97 (citations omitted). Finally, we

9
addressed the gravity of the charged offense and opined that, where
a death had been caused by a drinking driver, a driver's license
suspension was an insufficient penalty for refusing to submit to a
chemical analysis. Thomuson, 674 P.2d at 1097.
Applying the three Thomuson considerations to this case
involving an arrest for negligent vehicular assault, rather than
negligent homicide, mandates a different result and clearly
indicates that Thompson is distinguishable. There, we began by
applying the plain meaning of the "arrest for DUI" language in 5
61-8-402, MCA, to the negligent homicide charge at issue.
Thomoson, 674 P.2d at 1095-96. As noted above, the offense of
negligent homicide is defined as negligently causing the death of
another human being. See § 45-5-104, MCA. Nothin~g in that
definition relates in any way to operating a vehicle while under
the influence of alcohol. Accordingly, we properly concluded in
Thomoson that the legislature did not intend the protections
afforded by § 61-8-402, MCA, to apply to an arrest for negligent
homicide because the statutory language was inapplicable "until
there is an arrest for driving under the influence." Thompson, 674
P.2d at 1096. Here, as discussed above, the negligent vehicular
assault charge includes, as a specific element, driving while under
the influence of alcohol as set forth in 5 61-a-401, MCA. See§
45-5-205(l), MCA. Thus here, unlike in Thomuson, there has been an
arrest for DUI and the protections afforded by 5 61-8-402, MCA, are
engaged.
Having concluded, under the statutory interpretation

10
consideration which necessarily was our primary concern in
Thomoson, that § 61-8-402, MCA, applies to an arrest for negligent
vehicular assault, the remaining Thomoson criteria are of limited
significance. With regard to the "other jurisdictions"
consideration from Thompson, the State cites to State V. Woolery
(Idaho 1989), 775 P.2d 1210, and State v. Armenta (Or.App. 1985),
702 P.2d 1113, in support of its position that § 61-8-402, MCA, is
not applicable to non-DUI offenses. Those cases are readily
distinguishable from the case presently before us and, therefore,
they do not support the State's position here.
In Woolerv, the Idaho Supreme Court's primary focus was not
whether the statute applied to the offense charged. Rather, the
Idaho court focused on the absence of any statutory language
prohibiting a nonconsensual blood test in the event a requested
test was refused. Woolerv, 775 P.2d at 1214. The court ultimately
determined that no statutory right to refuse had been created and,
therefore, compliance--or lack thereof--with the implied consent
statute was irrelevant to the admissibility of the blood test
evidence so long as the constitutional requisites for a lawful
search and seizure were met. Woolerv, 775 P.2d at 1214-15.
Woolery has no application here where § 61-8-402(3), MCA, expressly
provides that a test may not be given if it has been refused and,
as a result, our cases hold that a nonconsensual drawing of blood
following a 5 61-8-402, MCA, refusal to submit to the test renders
the blood test evidence inadmissible. See, e.q., Thomuson, 674
P.2d at 1095.

11
 In Armenta, the defendant was charged with DUI and assault II

following an accident which resulted in injuries. Armenta, 702
P.2d at 1113. The trial court suppressed blood test evidence in
connection with both charges as a consequence of an invalid consent
under the implied consent statute, and the state appealed only the
inadmissibility of the evidence vis-a-vis the assault charge.
Annenta, 702 P.2d at 1114. The Oregon Court of Appeals applied the
statutory language specifically rendering the statute inapplicable
to non-DUI offenses, and concluded that the blood test was
admissible as to the assault charge assuming compliance with
constitutional requirements. Armenta, 702 P.2d at 1114. Thus
Armenta, like Thomoson, limited the applicability of the implied
consent statute to a DUI charge. Like Thomuson, and for the
reasons set forth above, Armenta is distinguishable from the
present case involving an arrest for the offense of negligent
vehicular assault, which includes DUI as a specific element, and
which, therefore, constitutes an arrest for DUI pursuant to § 61-8-
402(l), MCA.
The final Thomuson consideration was the gravity of the
charged offense and we observed, in that regard, that the negligent
homicide offense at issue involved the death of a human being.
Thompson, 674 P.2d at 1097. Indeed, negligent homicide is a felony
offense punishable by imprisonment in the state prison for up to
ten years and a fine of up to $50,000, or both. & §§ 45-2-
lOl(22) and 455-104(3), MCA. In the case presently before us,
however, negligent vehicular assault is a misdemeanor offense with

12
maximum punishments of one year imprisonment in the county jail and
a fine of $1,000, or both. & §§ 45-2-lOl(41) and 45-5-205(2),
MCA. Thus, while we agree with the State that this consideration
is of very limited significance in light of the paramount
importance of statutory interpretation in this case, its
application here further distinguishes Thomuson and weighs in favor
of our conclusion that 5 61-E-402, MCA, applies to an arrest for
negligent vehicular assault.
We hold that the District Court did not err in concluding that
§ 61-S-402, MCA, applies to a negligent vehicular assault
prosecution so as to preclude the admissibility of blood sample
evidence drawn in violation of the statute and also did not err in
suppressing that evidence.
Affirmed.

We concur:

Chief Justice

Justices

13
Justice Karla M. Gray, specially concurring.

While the Court's opinion adequately addresses the matters
raised in Justice Erdmann's dissenting opinion, I write separately
to add additional comments about several of the arguments contained
therein.
First, the dissent states that the Court cites no cases which
support its position. In this regard, I observe only that it is
not necessary for this Court to cite "other jurisdiction" cases in
support of a straightforward analysis of Montana statutes and case
law such as the Court has conducted here.
Next, the dissent quotes from Zielke, a Wisconsin case relied
on by the State in addition to the Armenta and Woolerv cases
discussed in the Court's opinion. The Wisconsin implied consent
statute at issue in Zielke, however--like the Idaho implied consent
statute at issue in Woolerv--did not contain language prohibiting
a nonconsensual blood test in the event a requested test was
refused. See Zielke, 403 N.W.2d at 429. Thus, like Woolerv,
Zielke is not applicable here where 5 61-8-402(3), MCA, expressly
provides that a test "may not be given" once it has been refused by
the arrestee. As discussed in the Court's opinion, it is this
specific portion of Montana's implied consent statute which renders
inadmissible evidence resulting from a nonconsensual drawing of
blood following a 5 61-8-402, MCA, refusal to submit to the test
and which negates the propriety of addressing the issue of the
constitutionality of the seizure of Greg's blood which the dissent

14
would reach in this case.
Finally, while I do not disagree that the Court's resolution
of this case may appear to allow defendants in alcohol or drug-
related accidents to use the implied consent statute as a "shield,"
I disagree with the dissent's view that this Court can simply
ignore the statutory language in order to produce a politically
expedient result. The State's "remedy" lies with the legislature,

which is free to amend the implied consent statute as other state
legislatures have done, not with this Court. ,-~,

15
Justice Charles E. Erdmann dissenting.

I respectfully dissent from the majority's conclusion that the

implied consent law, § 61-E-402, MCA, apples to a negligent
vehicular assault prosecution. The majority's opinion allows the

implied consent law to be used as a shield by defendants in alcohol

Or drug-related accidents and allows them to prevent the

introduction of otherwise admissible evidence of chemical

impairment. Further, although not reached by the majority, I would

conclude that a warrantless search was appropriate under these

circumstances and that the seizure of blood did not violate Greg

Stueck's right of privacy. I would reverse the District Court on

all three of these issues and remand the matter for trial.

The District Court granted Greg's motion to suppress the blood

sample evidence by finding that State v. Thompson (1984), 207 Mont.

433, 674 P.2d 1094, does not apply when a charge of negligent

vehicular assault is brought. In Thompson, this Court held that

the implied consent law did not apply to a negligent homicide

charge. In reaching that conclusion, the Court first reviewed the

language of the implied consent law, and then employed a three-step

analysis to determine whether that law should apply to charges

other than DUI.

Given the clear language of 5 61-E-402, MCA, it is

questionable whether the analysis need go any further than a

reading of the statute. This basic statutory construction analysis

I.6
is the first of the Thomnson criteria. Section 61-E-402, MCA,
provides in pertinent part:

(1) A person who operates or is in actual physical
control of a vehicle upon ways of this state open to the
public is considered to have given consent, subject to
the provisions of 61-8-401, to a test or tests of the
person's blood, breath, or urine for the purpose of
determining any measured amount or detected presence of
alcohol or drugs in the person's body if arrested by a
peace officer for driving or for beinq in actual physical
control of a vehicle while under the influence of
alcohol, drugs, or a combination of the two.

(Emphasis added.) Section 61-e-401, MCA, referenced in the implied
consent statute, is the statute that prohibits DUI. By the clear

language of the statute itself, it is applicable only to cases

involving an arrest for DUI. As this Court recently noted in State

v. Gould (1995), 273 Mont. 207, 902 P.2d 532:

In interpreting a statute, we first look to the
plain meaning of its words. Christensen, 877 P.2d at 469
(citation omitted). If the legislative intent can be
ascertained from the plain meaning of the words used, no
further interpretation is required and we will not resort
to legislative history. Clarke v.Massey (1995), 1271 Mont.
4121, 897 P.Zd 1085, 1088. Where the language is plain,
unambiguous, direct, and certain, the statute speaks for
itself and there is no need to resort to extrinsic means
of interpretation. Christensen, 877 P.2d at 469 (citation
omitted). In addition,

[i]n the construction of a statute, the office of
the judge is simply to ascertain and declare what is
in terms or in substance contained therein, not to
insert what has been omitted .

Section l-2-101, MCA.

Gould, 902 P.Zd at 540.

As correctly recognized by the majority, the plain,

unambiguous language of 5 61-E-402, MCA, makes the statute

17
applicable only where there has been an arrest for DUI. As Greg
was not arrested for DUI, the only logical conclusion is that the

implied consent statute does not apply. The majority, however,

holds that § 61-E-402, MCA, applies to a charge of negligent

vehicular assault, and in doing so, concludes that an arrest for
negligent vehicular homicide constitutes an arrest for DUI.

While the majority is correct in noting that driving under the

influence of alcohol or drugs is one of the elements of the

negligent homicide statute, that does not make an arrest for

negligent vehicular assault an arrest for DUI. The Legislature

could easily have extended the provisions of the implied consent

statute to both vehicular homicide and negligent vehicular assault,

but has chosen not to do so. In concluding that an arrest for

negligent vehicular assault constitutes an arrest for DUI, the
majority has inserted provisions into § 61-B-402, MCA, that were

omitted by the Legislature. That is not the proper function of

this Court.

As noted, the first of the Thomuson criteria deals with

legislative intent and statutory interpretation, which is discussed

above. As the plain language of the statute is clear, I do not

believe that further analysis is necessary. However, even if the

second and third Thompson criteria are utilized, the result is the

same.
In Thompson, this Court stated:

We find that Section 61-E-402 does not apply to
negligent homicide prosecutions. This conclusion is

18
based on three considerations. First we consider the
legislative intent. "Legislative intent must first be
determined from the plain meaning of the words used; and
if the language is plain, unambiguous, direct, and
certain, the statute speaks for itself." Gist v. Segna
(Mont. 1981), 622 P.Zd 1028 at 1029, 38 St.Rep. 150 at
152, citing Dunphy v. AnacondaCo. (1968), 151 Mont. 76, 438
P.2d 660. The language of the statute and an examination
of the statutory scheme of Title 61, Chapter 8, part 4
plainly show that application of the implied consent law
to negligent homicide cases was not within the
legislature's contemplation. The operative language of
Section 61-E-402 reads,

"Any person who operates a motor vehicle upon
the public highways of this state shall be
deemed to have given consent, subjectto theprovisions
of 61-8-401, to a chemical test of his blood,
breath, or urine for the purpose of
determining the alcohol content of his blood if
awesled by a peace ofJicerfor driving OYin actual physical control of
n motor vehicle while under the infruence of alcohol. II (emphasis
supplied)

The italicized passage above makes it clear that the
protections afforded there are not engaged until there is
an arrest for driving under the influence. (But, see
State v. Campbell (Mont. 1980) , 615 P.2d 190, 37 St.Rep. 1337,
where we held that an arrest is not always a prerequisite
to administration of a blood alcohol test.) Not only is
the section specifically premised on such an arrest, but
it is made subject to the section of the code which
outlines the offense of driving under the influence of
alcohol or drugs. . . This Court does not have the
power to remove or ignore language in a statute.

The second consideration is how similar implied
consent laws have been interpreted other
jurisdictions. . . [Wle feel the better reaszed cases
hold that the statute does not apply to negligent
homicide cases. Relying on the plain wording of the
statute, these cases held that applying the implied
consent laws to negligent homicide prosecutions was not
what the legislature had intended.

The third consideration also weighed heavily on the
courts deciding the cases cited immediately above;
suspension of the driver's license is simply an
insufficient penalty for refusing to submit to a chemical

19
 analysis when there has been a death caused by the
drinking driver. The gravity of the crime heightens the
importance of the blood sample, and it appears the
legislature felt the administrative remedy was simply
inappropriate. The decision to modify the scope of the
implied consent law properly rests within the
legislature's power. It is not within our power to read
into a statute more than is found there, as appellant
would have us do. Therefore, we hold that Section
61-8-402 does not apply to suspects in negligent homicide
prosecutions.

Thompson, 674 P.2d at 1096-97 (citations omitted).

The Court's discussion of the first Thompson criteria provides
additional support for the conclusion that the Legislature did not

intend the implied consent law to apply to charges other than DUI.

The protection afforded by the implied consent law simply is not

triggered until there has been an arrest for DLJI. In this case,
there was no arrest for DUI.

After reaching its conclusion that the Legislature intended

that an arrest for negligent vehicular assault constitutes an

arrest for DUI, the majority then determines that the remaining two

Thompson criteria are of limited significance. This is not

surprising since, after attempting to distinguish the cases from

other jurisdictions which support the State's position, the

majority can cite no cases which support its position. State v.

Woolery (Idaho 19891, 775 P.2d 1210; State v. Armenta (Or. Ct. App.

1985), 702 P.2d 1113; State v. Zielke (Wis. 1987), 403 N.W.2d 427.

The third Thompson criteria addresses the gravity of the

crime. The majority notes that vehicular homicide involves the

death of an individual and is a felony, while negligent vehicular

20
assault is merely a misdemeanor. While conceding that this
criteria is of very limited significance, the majority relies on it
for further support of its conclusion that 5 61-8-402, MCA, applies

to an arrest for negligent vehicular assault. The Thomuson case

did not make any distinction between felonies and misdemeanors and

that is a troublesome distinction to create. Further, it cannot
be disputed that negligent vehicular assault is a serious crime for

which the mere sanction of having a license temporarily suspended
is an insufficient penalty.

The negligent vehicular assault statute requires that a
person: (1) operate a vehicle in a negligent~ manner; (2) while

driving under the influence of alcohol or drugs; and that (3) his

or her conduct is the cause of bodily injury to another. Section

45-5-205, MCA. Under the majority's rationale, if the victim in

this case would have died, the implied consent law would not have

applied, but if the victim were only injured, seriously or

otherwise, it would apply. Such a judicially created distinction

is not warranted and places an unreasonable burden on law

enforcement officers who investigate accidents involving alcohol or

drugs.

Whether applying the basic rules of statutory interpretation,

or utilizing the Thompson criteria, it is clear that the

Legislature did not intend that an individual involved in an

alcohol or drug-related traffic accident be able to use the implied

consent law as a shield to prevent evidence of chemical impairment

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to be introduced at trial. As noted by the Wisconsin Court in
Zielke:

The implied consent law is an important weapon in
the battle against drunk driving in this State. Neither
the law, its history or common sense allows this court to
countenance its use as a shield by the defense to prevent
constitutionally obtained evidence frombeing admitted at
trial.

Zielke, 403 N.W.Zd at 434.

While not addressed by the majority, I would conclude that the
seizure of blood in this case was a reasonable seizure and did not

violate Greg's privacy interests. By the time the officers reached
Greg's residence, approximately one hour and twenty-five minutes

had passed since the accident. The additional time in obtaining a
search warrant in the middle of the night would have resulted in

further dissipation of Greg's blood alcohol content and the loss of

valuable evidence. The means and procedures employed in taking the

blood were reasonable. Schmerber v. California (1966), 384 U.S.

757.

While this Court has recognized that Montana has a broad right

of privacy in Article II, Section 10, of the Montana Constitution,

the right of privacy contained in that provision is to be weighed

against any applicable state interest. State v. Brown (1988), 232

Mont. 1, 755 P.2d 1364; State ex rel. Zander v. District Court

(1979), 180 Mont. 548, 591 P.2d 656. Here, the State's interest is

to enforce the criminal and traffic laws which protect all

citizens, and specifically in this case, to apprehend and

appropriately punish the person who rear-ended the Troth vehicle

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and then left the scene of an injury accident. I would find these
interests to be compelling and outweigh Greg's right of privacy

associated with his blood.

For the foregoing reasons I would reverse the District Court

and remand this matter for trial.

Justice

23
Chief Justice J. A. Turnage, dissenting:
I concur with the dissenting opinion of Justice Erdmann. I

write further and in addition thereto.

The correct decision in this case requires an analysis of

three separate statutes. The majority has failed to analyze

correctly these operative statutes which are in their essential

parts set forth as follows:

61-s-401. (1) It is unlawful and punishable as
provided in 61-S-714 and 61-f-723 [penalty for driving
under the influence of alcohol] for any person who is
under the influence of:
(a) alcohol to drive or be in actual physical
control of a vehicle upon the ways of this state open to
the public;

i3i '"Under the influence" means that as a result of
taking into the body alcohol, drugs, or any combination
thereof, a person's ability to safely operate a motor
vehicle has been diminished.
(4) Upon the trial of any civil or criminal action
or proceeding arising out of acts alleged to have been
committed by any person driving or in actual physical
control of a vehicle while under the influence of
alcohol, the concentration of alcohol in the person at
the time alleged, as shown by analysis of the person's
blood, urine, or breath, shall give rise to the following
inferences:
(a) If there was at that time an alcohol concentra-
tion of 0.05 or less, it may be inferred that the person
was not under the influence of alcohol.
(b) If there was at that time an alcohol concentra-
tion in excess of 0.05 but less than 0.10, that fact
shall not give rise to any inference that the person was
or was not under the influence of alcohol but such fact
may be considered with other competent evidence in
determining the guilt or innocence of the person.
(c) If there was at that time an alcohol concentra-
tion of 0.10 or more, it may be inferred that the person
was under the influence of alcohol. The inference is
rebuttable.
(5) The provisions of subsection (4) do not limit
the introduction of any other competent evidence bearing
upon the issue of whether the person was under the
influence of alcohol, drugs, or a combination of the two.

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 61-8-402. (1) A person who operates or is in actual
physical control of a vehicle upon ways of this state
open to the public is considered to have given consent,
subject to the provisions of 61-8-401, to a test or tests
of the person's blood, breath, or urine for the purpose
of determining any measured amount or detected presence
of alcohol or drugs in the person's body if arrested bv
peace officer for drivinq a vehicle while under
the influence of alcohol[.] [Emphasis added.]

45-5-205. (1) If a person operates a motor vehicle
in a negligent manner and he is drivinq while under the
influence of alcohol . as provided for in 61-8-
401(I), and his conduct is the cause of bodily injury to
another, he commits the offense of negligent vehicular
assault. [Emphasis added.]

I emphasize the fact that defendant Greg Stueck was not

arrested for the offense of driving while under the influence of

alcohol.
The District Court erroneously concluded that, because the

negligent vehicular assault statute requires that the accused must

be operating a motor vehicle in a negligent manner and driving

while under the influence of alcohol, the statute necessarily

requires compliance with § 61-8-402, MCA, the so-called implied

consent statute. The majority of this Court also engages in that

erroneous analysis. Both the District Court and the majority of

this Court have engaged in faulty logic.

Section 61-8-402, MCA, the implied consent statute, applies

only if the accused is arrested by a peace officer for driving a

vehicle while under the influence of alcohol. This is clearly not

the fact in the present case. Stueck was not arrested for driving
under the influence of alcohol.

The inferences relating to alcohol concentration in a person's
body as set forth in 5 61-8-401, MCA, are rebuttable inferences

25
only and, as in that section provided, proof of such alcohol

concentration is not the only method by which a conviction for
operating a motor vehicle while under the influence of alcohol can

be obtained. Any other competent evidence bearing on that issue

may be introduced and may result in a conviction.

State v. Thompson (1984), 207 Mont. 433, 674 P.2d 1094, is

clearly on point in this case, and the efforts of the majority to

distinguish Thompson are misplaced. The operative facts in

Thompson are virtually identical to the facts of this case. The

fact that Thompson's drunken driving resulted in a homicide cannot

be legally distinguished from the facts in this case. Stueck's

driving may well have resulted in a homicide instead of a bodily

injury to Mr. Troth. The legal principles set forth in Thompson

are applicable here.

I would reverse the decision of the District Court.

/J<& Chief Justice

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