Gentry v. State, Dept. of Justice

96-315




                                                                           No. 96-345

                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                 1997



                                                                        JAMES GENTRY,

                                                             Petitioner and Appellant,

                                                                                   v.

                                                        STATE OF MONTANA, DEPARTMENT
                                                    OF JUSTICE, MOTOR VEHICLE DIVISION,

                                                            Respondent and Respondent.




                          APPEAL FROM:            District Court of the Seventh Judicial District,
                                                   In and for the County of Dawson,
                                               The Honorable Dale Cox, Judge presiding.


                                                                    COUNSEL OF RECORD:

                                                                        For Appellant:

                                              Kevin R. Peterson; Great Plains Law Firm,
                                                          Billings, Montana

                                                                       For Respondent:

                                             Hon. Joseph P. Mazurek, Attorney General,
                                           Brenda Nordlund, Assistant Attorney General,
                                                          Helena, Montana



                                                 Submitted on Briefs: February 20, 1997

                                                               Decided:           May 27, 1997
                                                                               Filed:


                                             __________________________________________
                                                               Clerk

                               Justice Karla M. Gray delivered the Opinion of the Court.


                   James Gentry appeals from the order of the Seventh Judicial District Court,

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   Dawson County, denying his petition to challenge the suspension of his driving privileges
      for refusing to submit to a breathalyzer test under Montana's implied consent law. We
                                                  affirm.
                                   We address the following issues on appeal:
                1. Did the District Court err in refusing to apply the "confusion doctrine?"
                 2. Did the District Court err in denying Gentry's petition where the record
        discloses that a notary public was not present when the arresting officer signed the
                              affidavit upon which the suspension was based?
                                                              BACKGROUND
                   James Gentry (Gentry) was stopped by Officer Richard Rowe (Rowe) of the
      Glendive Police Department for suspicion of speeding and careless driving. Rowe asked
        Gentry for his driver's license, registration and proof of insurance. As Gentry was
     getting his license, Rowe detected the odor of an alcoholic beverage coming from Gentry
      and noticed that Gentry's eyes were glassy and bloodshot. Rowe asked Gentry if he had
         been drinking, and Gentry replied that he had. Rowe administered a series of field
  sobriety tests, which Gentry failed. Rowe arrested Gentry for driving under the influence
                 of alcohol (DUI) and transported him to the Glendive Police Department.
              On the way to the police station, Gentry repeatedly asked Rowe to see the speed
        at which his vehicle had been clocked on Rowe's radar unit. Rowe had stopped Gentry
  without using his radar device and explained that, as a result, the speed was not recorded
 on the radar unit. After arriving at the police station, Gentry requested a drink of water
       and asked if he could call his attorney. According to Gentry, Rowe told him he could
    not have a drink because it would effect the breathalyzer test Rowe was going to ask him
                       to take, and that he "couldn't use the phone at that time."
               Rowe gave Gentry a copy of the implied consent advisory form, and read it aloud
       as Gentry read along. Rowe then requested Gentry to submit to a breathalyzer test to
   determine the alcohol concentration in his body. Gentry refused the test and insisted on
   a blood test. Rowe explained that taking a blood test was not an option, but that he had
 a right to get one, at his own expense, when he left the police station. Based on Gentry's
         refusal of the breathalyzer test, Rowe completed the State of Montana Alcohol/Drug
 Testing Refusal Affidavit (refusal affidavit), seized Gentry's driver's license, and issued
      him a notice of suspension or revocation and a citation for the DUI offense. A notary
                     public was not present when Rowe signed the refusal affidavit.
            Gentry subsequently filed a petition in the District Court, pursuant to      61-8-403,
    MCA, challenging the suspension of his driver's license; he also requested a stay of the
           license suspension. The District Court ordered the Department of Justice, Motor
    Vehicles Division (the Department), to reinstate Gentry's driving privileges pending the
                                 outcome of proceedings on his petition.
             The District Court conducted a hearing and ordered the parties to submit proposed
     findings of fact and conclusions of law. Although the issue at the hearing was whether
         Rowe had reasonable grounds to stop Gentry and probable cause to arrest him, Gentry
       raised two additional issues in his proposed findings of fact and conclusions of law.
      First, he sought application of the "confusion doctrine" to his case. He claimed that
    Rowe advised him of his rights to an attorney before reading him the advisory form, and
           that he was confused when Rowe told him he could not talk to an attorney before
   deciding whether to take the breathalyzer test. Gentry also stated he was confused about
  the information contained in the advisory form and the fact that he could not take a blood
     test instead of a breath test. Second, Gentry contended that the Department failed to
  establish that the refusal affidavit was properly notarized, thus violating         61-8-402(3),
                 MCA, which requires that a sworn report be forwarded to the Department.
           In its findings of fact, conclusions of law and order, the District Court determined
       that Rowe had reasonable grounds to believe that Gentry was operating a motor vehicle
  upon the ways of the state open to the public while under the influence of alcohol, drugs,
         or a combination of both; that Rowe arrested Gentry; and that Gentry refused, upon
request of a peace officer, to submit to a breathalyzer test. The court also concluded that
   Gentry did not plead the confusion doctrine and did not testify, offer other evidence or
   argue that he was confused at the time he declined the breathalyzer test. The court did
        not address the notarization issue. The District Court denied Gentry's petition and

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      ordered that his driving privileges were subject to suspension. Gentry appeals.
                                                  STANDARD OF REVIEW
          Gentry claims that the District Court's denial of his petition was premised on
 incorrect legal conclusions. We review a district court's conclusions of law to determine
    whether they are correct. Anderson v. State Dept. of Justice (1996), 275 Mont. 259,
                          262, 912 P.2d 212, 214 (citation omitted).
                                                        DISCUSSION
           1. Did the District Court err in refusing to apply the "confusion doctrine?"

             In a    61-8-403, MCA, action for reinstatement of a suspended or revoked driver's
         license, the burden is on the petitioning motorist to prove that the suspension or
     revocation of the license is invalid. See        26-1-401, MCA; Hunter v. State (1994), 264
          Mont. 84, 87, 869 P.2d 787, 789; Jess v. State, Dept. of Justice, MVD (1992), 255
        Mont. 254, 259-60, 841 P.2d 1137, 1140. Pursuant to       61-8-403(4), MCA, a district
       court's review is limited to three issues: (1) whether a peace officer had reasonable
    grounds to believe that the person had been driving or was in actual physical control of
  a vehicle upon ways of this state open to the public while under the influence of alcohol,
     drugs, or a combination of the two; (2) whether the person was placed under arrest; and
   (3) whether the person refused to submit to the test for the presence of alcohol or drugs
                                         in the person's body.
               Gentry argues on appeal that he was in a state of confusion when he refused the
      breathalyzer test and that his refusal should be excused, as a matter of law, under the
      "confusion doctrine." He contends that Rowe read him his Miranda rights, including his
   right to an attorney, after Rowe arrested him and placed him in the back of the patrol car
     to be transported to the police station. Gentry claims that Rowe did not explain to him
  why he could not contact his attorney prior to taking or refusing the breathalyzer test and
   that, as a result, he was confused concerning his right to counsel. Gentry also claims he
       did not understand the advisory form and why he could not take a blood test instead of
                                            the breathalyzer.
              At the outset, we address whether the confusion doctrine falls within one of the
 three issues properly before a district court in a proceeding challenging a driver's license
   suspension. It is clear from our brief recitation of Gentry's confusion doctrine argument
 that the doctrine relates to whether the person did or did not refuse the test; that is, the
     confusion doctrine--if adopted and applicable--serves to excuse what would otherwise be
    a refusal of the test. Thus, we conclude that the confusion doctrine is within the scope
       of     61-8-403(4)(iii), MCA, pursuant to which a district court must determine whether
  the person refused to submit to the requested breathalyzer test for the presence of alcohol
       in the person's body. Therefore, the doctrine need not be specifically pleaded. The
       burden, of course, remains on the petitioner to prove that the license suspension was
                        invalid. See    26-1-401, MCA; Hunter, 869 P.2d at 789.
              Under the confusion doctrine, when a police officer introduces the subject of a
          DUI arrestee's right to counsel by giving a Miranda warning prior to requesting a
chemical test, the arrestee's subsequent refusal to take the designated test until an attorney
     is consulted might not constitute a "refusal to submit" to a chemical test. Blomeyer v.
      State (1994), 264 Mont. 414, 418-19, 871 P.2d 1338, 1341(citation omitted). The basis
    of the doctrine is that a driver may be confused by being informed via his Miranda rights
    that he has a right to counsel and then being asked to take a breathalyzer test under the
        implied consent law, where no right to counsel exists; the confusion may mislead the
     driver to believe he has the right to an attorney before deciding whether to submit to a
                         test. Blomeyer, 871 P.2d at 1342 (citations omitted).
                A number of jurisdictions have adopted the confusion doctrine. Blomeyer, 871
       P.2d at 1341 (citing Rust v. Department of Motor Vehicles, Div. of Driver's Lic. (Cal.
           App.1968), 73 Cal.Rptr. 366; State Department of Highways v. Beckey (Minn.1971),
         192 N.W. 2d 441; and State v. Severino (Haw. 1975), 537 P.2d 1187). To date, while
     we have recognized the doctrine's existence, we have declined to decide whether to adopt
      it until presented with a case which would warrant its application. Blomeyer, 871 P.2d
      at 1342. We follow the Blomeyer approach here, determining first whether the facts and
            circumstances of this case would warrant application of the confusion doctrine.

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                   In Blomeyer, we stated that the confusion doctrine would apply only when
     Miranda rights are given prior to, or contemporaneously with, a driver being advised of
     his or her rights and obligations under the implied consent law. Blomeyer, 871 P.2d at
     1342. There, we determined that the confusion doctrine was not applicable, because the
      driver was Mirandized after the implied consent form was read and after he had refused
          to submit to a breathalyzer test. Blomeyer, 871 P.2d at 1342. Thus, there was no
          likelihood that he confused his right to counsel under Miranda with his rights and
                 obligations under the implied consent law. Blomeyer, 871 P.2d at 1342.
              In the present case, the District Court did not make a specific finding as to when
   Gentry was given his Miranda rights, and the record contains conflicting evidence on that
  question. Gentry testified that Rowe "read me my rights" at the time of arrest, prior to
being taken to the police station; he did not specifically testify that he was advised of his
         right to counsel at that time. Rowe was not asked when he Mirandized Gentry during
  either his direct, cross-, redirect or recross-examination. His offense report indicates,
        however, that Rowe read Gentry his Miranda rights at the police station after Gentry
         refused the breathalyzer test. This factual dispute need not be resolved, however,
        because we conclude that even assuming Gentry was Mirandized prior to his refusal of
 the breathalyzer test, he has not established the applicability of the confusion doctrine to
                                         the facts of this case.
                As we stated above, a petitioner challenging a driver's license suspension for
         refusing a test under the implied consent statute must prove that the suspension was
           invalid. See     26-1-401, MCA; Hunter, 869 P.2d at 789. In the context of claimed
   reliance on the confusion doctrine, "[w]hether a suspect is confused is a question of fact
        and must, therefore, be established by sufficient evidence." Ehrlich v. Backes (N.D.
                             1991), 477 N.W. 2d 211, 213 (citation omitted).
               Here, Gentry did not testify that he was confused by the sequence of the Miranda
    warning and the statement on the advisory form that he was not entitled to counsel before
          taking or refusing the test. Nor did he offer other evidence establishing--or even
         suggesting--any confusion on his part regarding a right to counsel prior to deciding
      whether to submit to the breathalyzer test. Gentry merely testified that he asked Rowe
      to repeat several of the statements on the advisory form so that "there could be a full
           understanding" of what was being asked and that he "wanted to be sure what Officer
         Rowe was reading" and "make double sure what I was going over." Based on the record
     before us, it is clear that Gentry did not establish facts and circumstances which would
                              warrant application of the confusion doctrine.
             Given the total absence of evidence supporting application of the confusion doctrine
       in this case, it is not necessary to further define the nature and extent of facts and
        evidence which would warrant application of the doctrine where a person is Mirandized
      prior to, or contemporaneously with, being requested to submit to a chemical test under
         Montana's implied consent statute. Suffice it to say that jurisdictions which have
   adopted and applied the confusion doctrine state the requirements in different terms. In
         Ehrlich, for example, the Supreme Court of North Dakota mentioned only "the need for
   the arrestee to testify that she was confused in order to raise the issue as one of fact."
      Ehrlich, 477 N.W.2d at 213 (citation omitted). In California, the driver must manifest
     confusion by asserting the alleged right to an attorney; after such a manifestation, the
          peace officer has a duty to explain that the right to counsel does not apply to the
          breathalyzer test. McDonnell v. Department of Motor Vehicles (Cal. App. 1975), 119
      Cal.Rptr. 804, 807-08. Only objective, officer-induced confusion supports relief from
  a driver's license suspension for refusing or failing to submit to chemical testing after a
     valid arrest. Monter v. Director of Motor Vehicles (Cal. App. 1990), 268 Cal.Rptr. 301,
           306. In Washington, drivers who advance the confusion doctrine have the burden of
       showing that they made their confusion apparent to the officer and were denied further
       clarification. Haas v. State, Dept. of Licensing (Wash. App. 1982), 641 P.2d 717, 719
        (citation omitted). As noted, further refinements to our perception of the confusion
      doctrine are unnecessary unless and until such time as we determine that application of
           the doctrine is warranted and formally adopt the doctrine as part of Montana law.
                 We hold that the District Court did not err in failing to apply the confusion
        doctrine. 2. Did the District Court err in denying Gentry's petition where the record

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          discloses that a notary public was not present when the arresting officer signed the
                             affidavit upon which the suspension was based?

              As noted above, the District Court did not rule on Gentry's contention that his
   driver's license suspension should be invalidated because Rowe's signature on the refusal
       affidavit was not notarized and, as a result, a sworn report was not submitted to the
   Department as required by law. Gentry contends it is undisputed that a notary public was
     not present when Rowe signed the refusal affidavit and, furthermore, that the Department
failed to establish at the hearing that the affidavit was ever notarized. Citing to authority
 from other jurisdictions, he argues that a sworn report is a jurisdictional prerequisite, or
   mandatory condition precedent, to the suspension of his driver's license. The Department
                contends that Gentry waived the issue by failing to timely raise it.
               We addressed a similar situation in Thompson v. Department of Justice (1994),
          264 Mont. 372, 871 P.2d 1333. There, Thompson was arrested for DUI and refused a
       breathalyzer test; the Department suspended his driver's license. Thompson, 871 P.2d
        at 1334. Thompson challenged the suspension in the district court, arguing that the
     Department had no authority to suspend his license because the refusal affidavit was not
        a sworn report as required by     61-8-402(3), MCA. Thompson, 871 P.2d at 1334. The
  court inquired whether Thompson had notified the county attorney's office that the alleged
      lack of the required sworn report was an issue in the case, and Thompson responded that
        he had not done so. Thompson, 871 P.2d at 1335. The court concluded that it should
    not consider the issue. We affirmed, emphasizing that no notice was given that the issue
  was being raised and, as a result, neither the county attorney's office nor the Department
        had the opportunity to present evidence to refute Thompson's contentions. Thompson,
      871 P.2d at 1335-36.    We concluded that the sworn report issue was not properly raised
           or presented and did not address it substantively. Thompson, 871 P.2d at 1336.
               Thompson is applicable here. Notwithstanding Thompson's holding that lack of
     notice of an issue outside the scope of those set forth in     61-8-403(4), MCA, prevents
   consideration of the issue, Gentry did not plead--and thereby give notice of--the absence
           of a sworn report to the Department. He merely inquired of Rowe at the hearing
  regarding the lack of notarization at the time Rowe signed the refusal affidavit. He then
        included his legal position regarding the lack of a sworn report in his post-hearing
       findings of fact and conclusions of law. As was the case in Thompson, the Department
     had no opportunity to present evidence to refute Gentry's allegations. Consideration of
  such a late-raised issue, where the issues before the court are ordinarily limited by       61-
        8-403(4), MCA, and the burden is on the petitioner rather than the Department, would
       be both unfair and prejudicial to the Department. Therefore, we conclude that Gentry
   waived the sworn report issue by not timely raising it and we decline to address the issue
                                            substantively.
                                                  Affirmed.

                                                                                                      /S/      KARLA M. GRAY

                                                                            We concur:

                                                                  /S/ J. A. TURNAGE
                                                                 /S/ JAMES C. NELSON
                                                               /S/ TERRY N. TRIEWEILER
                                                                   /S/ JIM REGNIER




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