State v. Thompson

No. 83-134
IN THE SUPREME COURT OF THE STATE OF MOEJTANA
1984

STATE OF MONTANA,
Plaintiff and Respondent,

STEVEN T. THOMPSON,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Goldman & Goldman; Bernard J. Goldman argued,
Missoula, Montana

For Respondent:

Mike Greely, Attorney General, Helena, Montana
Chris Tweeten aruged, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney, Missoula
Montana

Submitted: October 24, 1983
Decided: January 12, 1984

Filed: JA/l1X 1984

Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.

Appellant was convicted of negligent homicide after a
jury trial held before the Honorable Jack L. Green. From
this verdict, appeal is taken.
On March 6, 1982, appellant was driving west on
interstate 90 near East Missoula, Montana, when he was
involved in a collision. Appellant's vehicle struck the
rear end of a vehicle driven by Noah Hatton in which his
wife, Sylvia Hatton, was the passenger. At the scene of the
accident, appellant was placed under arrest for driving
under the influence of alcohol in violation of Section
61-8-401, MCA. He was then transported to Missoula
Community Hospital for treatment of minor injuries suffered
in the accident.
While appellant was receiving treatment, a Montana
Highway Patrol officer solicited and received permission
from the attending physician to talk with appellant. The
officer informed appellant of his Miranda rights and his
rights under Montana's "imp1 ied consent" law, Section
51-8-402, MCA. The officer then requested appellant to
allow the medical staff to draw a blood sample, and
appellant refused. Section 61-8-402(3), MCA, provides that,
"If a resident driver under arrest,
refuses upon the request of a peace
officer to submit to a chemical test
designated by the arresting officer as
wrovided in subsection (1) of this
Gection, none shall be given, but the
officer shall, on behalf of the division,
immediately seize his driver's license."
(emphasis supplied)
The officer did not seize appellant's driver's license.
 Confronted with this refusal, the officer instead
contacted the o f f i c e of t h e Missoula County A t t o r n e y for
advice. He was i n f o r m e d t h a t S y l v i a H a t t o n , who had b e e n
t a k e n t o a n o t h e r h o s p i t a l , had d i e d a s a r e s u l t o f i n j u r i e s
received in the collision. He was advised that since
appellant now was a suspect i n a n e g l i g e n t homicide, the

i m p l i e d c o n s e n t l a w was i n a p p l i c a b l e . The o f f i c e r r e t u r n e d

to appellant's room and i n f o r m e d him t h a t Mrs. H a t t o n had
died, that since he was now a suspect in a negligent

homicide, t h e i m p l i e d c o n s e n t law d i d n o t a p p l y and t h a t a
blood s a m p l e was n e e d e d . Though a p p e l l a n t apparently did

not "consent," a blood sample was drawn and analyzed.
A p p e l l a n t ' s b l o o d a l c o h o l l e v e l was . 1 2 % .
On S e p t e m b e r 1 0 , 1982, a p p e l l a n t moved the District
Court to suppress the results of the blood test on the
grounds that t h e blood s a m p l e h a d b e e n drawn a g a i n s t h i s
will i n v i o l a t i o n of t h e i m p l i e d c o n s e n t law. B r i e f s were

submitted and the motion was argued orally before the
H o n o r a b l e J a c k L. G r e e n . The c o u r t f o u n d t h a t o n t h e f a c t s

o u t l i n e d above t h e implied c o n s e n t law d i d n o t a p p l y because
a p p e l l a n t was a s u s p e c t i n a n e g l i g e n t h o m i c i d e . The c o u r t

f u r t h e r f o u n d t h a t t h e b l o o d s a m p l e was t a k e n i n c o m p l i a n c e
with the Fourth and Fourteenth Amendments of the United
States Constitution, and Article 11, section 11 o f the

Montana Constitution. Since it was not an unreasonable

s e a r c h and s e i z u r e , t h e m o t i o n t o s u p p r e s s was d e n i e d .
A j u r y t r i a l was h e l d , d u r i n g which t h e r e s u l t s o f t h e
blood test were admitted into evidence. The jury found
appellant guilty of negligent homicide. This appeal
follows.
 The sole issue raised on appeal is whether the
prohibition against non consensual extractions of blood
samples in Section 61-8-402, MCA, applies to prosecutions
for negligent homicide, and this issue is dispositive.
Appellant has not challenged the action taken below on
constitutional grounds. We have previously held that blood
samples drawn in violation of the statute are inadmissable
in prosecutions for driving under the influence of
intoxicating liquor. State v. Mangels (1975), 166 Mont.
190, 531 P.2d 1313. Therefore if Section 61-8-402 applies
to negligent homicide prosecutions, the results of the blood
test should not have been admitted into evidence and the
motion to suppress should have been granted. The State has
graciously conceded this point. It is urged by appellant
that Section 61-8-402, MCA, be applied to persons arrested
for negligent homicide, despite the operative language of
the statute that engages its provisions, "[I]£ (the suspect
is) arrested by a peace officer for driving or in actual
physical control of a motor vehicle while under the
influence of alcohol." The District Court relied on this
language in holding that the statute did not apply here.
Appellant contends that this Court previously ruled
that the statute does apply to negligent homicide
prosecutions in State v. Morgan (Mont. 1982), 646 P.2d 1177,
39 St.Rep. 1072. In Morgan, the defendant was involved in
an automobile accident where two people died instantly.
When the investigating officer interviewed the defendant at
the hospital it was his opinion that the defendant was
incoherent and could not have communicated a wish that a
blood sample not be drawn. The officer concluded that since
the defendant was in such a state, pursuant to Section

61-8-402(2), i t was u n n e c e s s a r y t o o b t a i n c o n s e n t b e f o r e t h e

b l o o d was e x t r a c t e d . The q u e s t i o n p r e s e n t e d t o t h i s c o u r t

was w h e t h e r d e f e n d a n t was i n s u c h a n i n c o h e r e n t s t a t e a s t o

be u n a b l e t o r e s p o n d t o a r e q u e s t f o r a b l o o d s a m p l e , thus

engaging the provisions of subsection ( 2 ) of the implied

consent s t a t u t e . W e d i d not expressly r u l e t h a t t h e implied

c o n s e n t law a p p l i e d t h e r e a s t h a t q u e s t i o n w a s n o t r a i s e d by

defense counsel. W e d i d r u l e t h a t i t s p r o v i s i o n s had been

complied with.

In s p i t e of appellant's assertions t o the contrary,

t h e Morgan c a s e i s n o t d i s p o s i t i v e o f t h e c a s e a t b a r . The

i s s u e p r e s e n t e d t h e r e i s n o t t h e same a s i s p r e s e n t e d h e r e ,

even though t h i s C o u r t s e e m i n g l y presumed t h a t t h e s t a t u t e

applied. Morgan d e a l t s t r i c t l y w i t h t h e i n t e r n a l w o r k i n g s

of the statute, and d i d not deal with its applicability.

"What i s n o t i n i s s u e i s n o t d e c i d e d . " S u l l i v a n v. Anselmo

Mining Corp. e t . a l . ( 1 9 2 8 ) , 82 Mont. 5 4 3 a t 5 5 5 , 268 P. 4 9 5

a t 5 0 0 , c i t i n g Pue v. W h e e l e r ( 1 9 2 7 ) , 78 Mont. 516, 255 P.

1043. As the issue was not decided, the case is not

authority for appellant's position. Martien v. Porter

( 1 9 2 3 ) , 68 Mont. 4 5 8 , 219 P. 817.

We find that Section 61-8-402 does not apply to

n e g l i g e n t homicide p r o s e c u t i o n s . This conclusion is based

on t h r e e c o n s i d e r a t i o n s . F i r s t we consider the legislative

intent. "Legislative i n t e n t must f i r s t be determined from

t h e p l a i n meaning of t h e words u s e d ; and i f t h e l a n g u a g e is

plain, unambiguous, d i r e c t and c e r t a i n , t h e s t a t u t e speaks

for itself." C r i s t v. S e g n a (Mont. 1 9 8 1 ) , 622 P.2d 1028 a t

1 0 2 9 , 38 S t . R e p . 1 5 0 a t 1 5 2 , c i t i n g Dunphy v . Anaconda Co.
(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 61-8-402 reads,
"Any person who operates a motor vehicle
upon the public highways of this state
shall be deemed to have given consent,
subject to the provisions of 61-8-401, to
a chemical test of his blood, breath, or
urine for the purpose of determining the
alcoholic content of his blood if
arrested by a peace officer for driving
or in actual physical control of a motor
vehicle while under the influence of
......................... -
alcohol." (emphasis supplied)
The underlined 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.
Appellant has characterized this language as extra verbage
which this Court could ignore should it choose to apply the
statutory protections to appellant. However, "All
provisions of a statute shall be given effect, if possible."
Crist, supra, 622 P.2d at 1029 38 St.Rep. at 152, citing
Corwin v. Bieswanger (1952), 126 Mont. 337, 251 P.2d 252.
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 in other jurisdictions.
The implied consent laws of several jurisdictions expressly
state that they apply to persons arrested for "any offense"
arising out of operating a motor vehicle under the
influence, and their courts have applied the statute to
negligent homicide cases. See State v. Riggins (Fla.App.
1977), 348 So.2d 1209. However among the jurisdictions
which have interpreted implied consent laws with operative
language similar to Montana's, there has been a split of
opinion. Some jurisdictions hold that their statutes do
apply to negligent homicide prosecutions. See State v.
Hitchens (Iowa 1980), 294 N.W.2d 686; and State v. Annen
(1973), 12 0r.App. 1203, 504 P.2d 1400. However we feel the
better reasoned cases hold that the statute does not apply
to negligent homicide cases. See People v. Sanchez (1970),
173 Colo. 188, 476 P.2d 980; Van Order v. State (Wyo. 1979),
600 P.2d 1056; and State v. Robarge (1977), 35 Conn.Supp.
511, 391 A.2d 184. 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 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 this
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.
The District Court's judgment is

I

We concur:

3h-t ,p,
Chief Justice
&