State v. Swanson

No. 85-491

I N THE SUPREME COURT OF THE STATE OF MONTANA

1986

STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-
KEVIN J O S E P H SWANSON,

D e f e n d a n t and A p p e l l a n t ,

APPEAL FROM: D i s t r i c t C o u r t of t h e T e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of F e r g u s ,
T h e H o n o r a b l e P e t e r L . R a p k o c h , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For Appellant:

T o r g e r S. O a a s , L e w i s t o w n , M o n t a n a

For R e s p o n d e n t :

Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
Barbara Claassen, Asst. Atty. General, Helena
C r a i g R. B u e h l e r , C o u n t y A t t o r n e y , L e w i s t o w n , M o n t a n a
James S t o g s d i l l , Deputy County Attorney, Lewistown

S u b m i t t e d on B r i e f s : A p r i l 4, 1986

Decided: J u l y 25, 1986

Filed:
JULZ 5 1986
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

Swanson appeals from an order of the Fergus County
District Court denying his motion to dismiss and finding him
guilty of driving under the influence of alcohol.
We reverse and remand.
Swanson raises the following issues on appeal:
1. Whether he was denied due process by being deprived
of a reasonable opportunity to gather exculpatory evidence,
and;
2. Whether the District Court erred in denying his
motion to dismiss and granting the State's motion to strike
Swanson's motion?
On January 9, 1985, at 1:30 a.m., Swanson was stopped by
Officer McCoy of the Lewistown Police Department. Swanson
was taken to the police station where his actions were video
taped. He performed three field sobriety tests. After
performing the tests, the officer placed him under arrest for
driving under the influence of alcohol. The officer then
read Swanson his Miranda rights and the implied consent law.
The officer requested Swanson to submit to a breath test.
Swanson refused to submit to the breath test, but said he
would submit to a blood test. The officer informed Swanson
that a blood test would be done at Swanson's expense.
After talking to his parents by telephone, Swanson was
taken to the hospital where a blood sample was drawn. The
sample was placed in a glass vial with an address where it
was to be sent for analysis, and with a label saying "Keep
Refrigerated. " The sample was given to the officer who gave
it to Swanson telling him it was Swanson's sample, that he
was responsible for paying for it, and that he should send it
in as soon as possible.
From the hospital, Swanson was transferred to the
Sheriff's office. the Sheriff's office, the officer again
told Swanson that he should send the sample to the address on
the container. During the booking process the sample was
taken from Swanson and placed on the counter in the booking
room. Swanson was placed in the Fergus County Jail. When
the officer left the Sheriff's office, he saw the sample on
the counter in the dispatch room. The officer next saw the
sample one or two days later at the police station. He
placed the sample in the refrigerator, then called Swanson's
father and told him that someone needed to get the sample and
send it in for analysis. Swanson's father picked up the
sample on January 13, 1985. Swanson was released on his own
recognizance on January 11, 1985.
The sample was never analyzed. The parties entered into
a stipulation regarding the decreased validity of the sample
due to its not being refrigerated. The stipulation stated:

In lieu of submitted formal proof in the form of
testimony (sic) and exhibits, it is hereby
stipulated as follows:
1. That on January 9, 1985, in reference to the
above entitled case a blood sample was taken from
Kevin Swanson at the Central Montana Hospital.
2. The blood sample was improperly preserved in
that it was not refrigerated. Due to the length of
time which elapsed between the drawing of said
sample and the laboratory analysis thereof a valid
determination of its blood alcohol content could
not be made.
3. Had this blood sample been properly preserved
and timely sent to a laboratory for analysis it
would have indicated Kevin Swanson's actual blood
alcohol content at the time said sample was drawn.
DATED this 5th day of June, 1985.
 Swanson filed a motion to dismiss on June 7, 1985. On
June 14, 1985, the State filed a motion to strike Swanson's
motion. Following a June 19, 1985 hearing, the court took
the motions under advisement and decided to consider them at
the time of trial.
Following a nonjury trial held July 1, 1.985, the
District Court filed an order denying Swanson's motion,
granting the State's motion, and finding Swanson guilty.
Swanson appeals from this order.
The first issue is whether Swanson was denied due
process by being deprived of a reasonable opportunity to
gather exculpatory evidence? Swanson argues that his
inability to have his blood sample analyzed was the fault of
the State. The State counters that Swanson had no right to
an independent test, that the arresting officer facilitated
Swanson's having a blood sample drawn by taking him to the
hospital, and that no further action was required.
Section 61-8-402(3), MCA, states that if a driver
refuses to submit to an alcohol test designated by the
arresting officer, then none shall be given by that officer.
The statute concerning additional tests is S 61-8-405(2),
MCA, which states:
The person tested may, at his own expense, have a
physician or registered nurse of his own choosing
administer a test, in addition to any administered
at the direction of a peace officer, for the
purpose of determining the amount of alcohol in his
blood at the time alleged as shown by chemical
analysis of his blood, breath, or urine.
A criminal accused has a constitutional right to attempt
to obtain exculpatory evidence. When the crime involves
intoxication, the accused has a right to obtain a sobriety
test independent of that offered by the arresting officer.
The language of S 61-8-405(2), MCA, does not support the
State's interpretation that the right to an independent test
arises only after the accused takes a test designated by the
arresting officer. The Arizona Appellate Court interpreted a
statute identical to S 61-8-405(2), MCA, and held that the
State's interpretation "would result in an unconstitutional
restraint on the right of a criminal accused to attempt to
obtain independent evidence of his innocence and operate to
deprive the accused of due process of law." Smith v. Cada
(AZ. App. 1977), 562 P.2d 390, 393. Other cases also hold
that denying one charged with an offense involving
intoxication the right to attempt to obtain at his own
expense a blood or other test to establish sobriety amounts
to a denial of due process. State v. Choate (Tenn. 1983),
667 S.W.2d 111; McNutt v. Arizona (Ariz. 1982), 648 P.2d 122;
State v. Snipes (Mo. 1972), 478 S.W.2d 299; ~ e s l e r v.
Department of Motor Vehicles (Cal. 1969), 459 ~ . 2 d900; In re
Martin (Cal. 1962), 374 P.2d 801.
We agree with these cases and hold that one accused of a
crime involving intoxication has a right to obtain an
independent blood test to establish his sobriety regardless
of whether he submits to a police designated test. The
question becomes whether the State interfered with Swanson's
attempt to obtain this independent test. As the California
Supreme Court stated:
[Plolice officers are not required to take the
initiative or even to assist in procuring any
evidence on behalf of a defendant which is deemed
necessary to his defense (citations omitted). But
in no event can duly constituted authority hamper
or interfere with efforts on the part of an accused
to obtain a sampling of his blood, without denying
to him due process of law. 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. Nor are we impressed that an
 accused, as perhaps in the instant case, might have
reached his goal by pursuing a different course.
It is sufficient if, in seeking to establish the
fact of the alcoholic content of his blood, the
authorities, by their actions or regulations,
frustrate his reasonable efforts designed to
produced probative evidence.
In re Martin (Cal. 1962), 374 P.2d 801, 803.
In this case, the arresting officer transported Swanson
to a hospital to enable him to have a blood sample drawn, and
transported him back to the Sheriff's office. Swanson was
then booked into the Fergus County Complex. His property,
including the blood sample, was taken from him. Although the
sample was clearly marked "Keep Refrigerated," the arresting
officer testified that the sample was left on the counter in
the dispatch room. The sample was not given to Swanson upon
his release. One or two days later the officer found the
sample on a counter at the police station. He then placed
the sample in the refrigerator.
While the 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 and regulations. The sample was taken from
Swanson as part of a stand.ard inventory search. One of the
purposes of inventory searches is the safekeeping of
prisoners' property. As the United States Supreme Court
stated in Illinois v. Lafayette (1983), 462 U.S. 640, 103

A standardized procedure for making a list or
inventory as soon as reasonable after reaching the
stationhouse not only deters false claims but also
inhibits theft or careless handlinq of articles
taken - - arrested person.
from the (~rnphaxisadded. 1
Lafayette, 462 U.S. at 646.
Once the sample was taken from Swanson, the police had a
duty to see to its safekeeping. The sample should have been
refrigerated. Instead, it was left unrefrigerated for up to
two days until the sample turned up in the police station and
the arresting officer placed it in a refrigerator. This
careless handling of the sample deprived Swanson of his due
process right to gather possible exculpatory evidence.
We do not agree with the State's argument that Swanson
should have seen that the sample was properly cared for. Had
he not been incarcerated and the sample taken from him we
would find differently. However, he was deprived of the
opportunity to care for the sample because of his
incarceration. Once the authorities took control of the
sample, shortly after it was drawn, they had a duty to
properly care for it. This they did not do. Therefore,
Swanson's motion to dismiss should have been granted.
Dismissal 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 also argues that he should have been advised of
his right to post bail in lieu of incarceration. The
offenses for which Swanson was arrested were offenses where a
peace officer could accept cash bail, yet Swanson was not
advised that he could have posted bail that night. Since we
have already found a dismissal of the charges is appropriate,
we need not address this issue.
We remand this case to the District Court with
instructions to grant Swanson's motion to dismiss.

We Concur:
Chief Justice

Justices
 Mr. J u s t i c e Fred J. Weber d i s s e n t s a s f o l l o w s :

I a g r e e w i t h t h e m a j o r i t y o p i n i o n when it h o l d s t h a t one

accused of a crime involving intoxication has a right to

o b t a i n an i n d e p e n d e n t b l o o d t e s t t o e s t a b l i s h h i s s o b r i e t y

r e g a r d l e s s o f whether he s u b m i t s t o a p o l i c e d e s i g n a t e d t e s t .

I do n o t a g r e e w i t h t h e b a l a n c e o f t h e o p i n i o n .

I f t h e t h e a c t i o n o f t h e S t a t e had e s t a b l i s h e d a c l e a r

interference with M r . Swanson's a t t e m p t t o o b t a i n e x c u l p a t o r y

evidence, t h e n I would a g r e e w i t h t h e m a j o r i t y . However, I

believe a consideration of a l l of t h e f a c t s r e q u i r e s a d i f -

f e r e n t conclusion.

I w i l l review t h e p e r t i n e n t facts, including portions

which a r e mentioned i n t h e m a j o r i t y o p i n i o n . O January 9 ,
n

1 9 8 5 , a t 1:30 a.m., t h e d e f e n d a n t was s t o p p e d by t h e p o l i c e

and t a k e n t o t h e s t a t i o n . His f a t h e r came t o t h e s t a t i o n

b e f o r e t h e blood t e s t was t a k e n and i n d i c a t e d h i s w i l l i n g n e s s

t o pay f o r t h e b l o o d t e s t . The d e f e n d a n t was t a k e n t o t h e

hospital a t his r e q u e s t where t h e blood sample was drawn.

From t h e h o s p i t a l t h e d e f e n d a n t was t r a n s f e r r e d t o t h e s h e r -

i f f ' s office. The a r r e s t i n g o f f i c e r gave t h e blood sample t o

the defendant with t h e advice t h a t it was t h e d e f e n d a n t ' s

sample, t h a t h e s h o u l d send it i n a s soon a s p o s s i b l e . The

l a b e l on t h e sample s t a t e d "Keep R e f r i g e r a t e d . " During t h e

booking process at the sheriff's office, the sample was

p l a c e d on t h e c o u n t e r i n t h e booking room. W e do n o t know i f

the sample was actually taken from t h e defendant, o r was

p l a c e d on t h e c o u n t e r by t h e d e f e n d a n t . The o n l y e v i d e n c e

e s t a b l i s h e s t h a t when t h e o f f i c e r l e f t t h e booking room, h e

saw t h e sample on t h e c o u n t e r .

Approximately 5 h o u r s a f t e r t h e booking, d e f e n d a n t was

taken before the Justice of the Peace on t h e morning of
January 9. At that time bail was set. There is no indica-
tion that defendant made any request at that time with regard
to the blood sample. Specifically there is no indication
that he requested of the police or the Justice of the Peace
that the blood sample be sent in. The defendant was released
on his own recognizance on January 11. Again, there is no
indication that the defendant made any inquiry with regard to
the blood sample.
The arresting officer testified that he found the sample
at the police station and put it in the refrigerator. He
then called the defendant's father and told him that somebody
needed to get the sample and send it in for analysis. The
defendant's father testified that he received the call on
January 12 and that the sample was picked up from the police
station on January 13.
I agree with the conclusion of the majority that the
police cannot frustrate the effort of an accused to obtain
independent evidence of sobriety. I question that the evi-
dence in this case indicates any such conduct. While I agree
that it would have been appropriate for the police to have
placed the sample in the refrigerator on the morning of
January 9, we must balance this against the indifference on
the part of the defendant as to the treatment of the sample.
He made no request for refrigeration or sending in of the
sample at the time of booking, or at the time of appearance
before the Justice of the Peace, or at the time that he was
discharged on January 11. The defendant's disinterest sug-
gests that he had concluded that he did not desire a test of
his blood sample. The only reason that the matter came to
the attention of anyone is that the officer was diligent when
he observed the sample on January 12 at the police
d e p a r t m e n t . H e t h e n a t t e n d e d t o t h e r e f r i g e r a t i o n and c a l l e d
t h e defendant's father.
I agree with the conclusion that the police cannot
i n t e r f e r e with t h e gathering of exculpatory evidence. In
t h i s case, t h e f a c t s indicate a t o t a l lack of diligence o r
e f f o r t on t h e p a r t o f t h e d e f e n d a n t . I would n o t d i s m i s s t h e

case.

Chief J u s t i c e J.A. Turnage and J u s t i c e L.C. Gulbrandson
j o i n i n t h e f o r e g o i n g d i s s e n t o f J u s t i c e F r e d J. Weber.