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.
2
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.
3
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
4
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
6
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
8
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,
9
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
10
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.
14
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.
16