State v. Clark, 88-95
| Decision Date | 07 October 1988 |
| Docket Number | No. 88-95,88-95 |
| Citation | 234 Mont. 222,762 P.2d 853 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Ronald Allen CLARK, Defendant and Appellant. |
| Court | Montana Supreme Court |
McKinley Anderson, Bozeman, for defendant and appellant.
Mike Greely, Atty. Gen., Mark J. Murphy, Asst. Atty. Gen., Helena, A. Michael Salvagni, County Atty., Jennifer Bordy, Deputy County Atty., Bozeman, for plaintiff and respondent.
This is an appeal from the Eighteenth Judicial District Court, Gallatin County. Defendant/appellant, Ronald Allen Clark, was found guilty by the District Court, after a jury trial, of Driving Under the Influence of Alcohol, a misdemeanor, in violation of Sec. 61-8-401, MCA. From this judgment, Clark appeals.
We affirm.
Clark 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 overruling the defendant's objections to the use of the Horizontal Gaze Nystagmus test as evidence at trial.
On July 15, 1986, at approximately 1:30 a.m., Deputy Sheriff Roy Irby of the Gallatin County Sheriff's Office observed Clark's vehicle traveling north on 7th Avenue. Deputy Irby saw Clark's vehicle begin to turn north into the southbound lane, nearly hitting the median, but quickly jerk into the proper lane of traffic. Deputy Irby followed defendant for approximately one and one-quarter miles, observing Clark swerving from lane to lane and straddling the divider line. One-quarter mile from Clark's home, Deputy Irby attempted to stop defendant by flashing his emergency lights. Clark did not respond, but instead drove to his home, where Clark exited his vehicle. Deputy Irby approached Clark and attempted to administer various field sobriety tests, including the Horizontal Gaze Nystagmus test (HGN). Clark performed the HGN test, the result of which indicated alcohol consumption. Clark refused to perform any other sobriety tests. Based on Clark's erratic driving, results of the HGN test, smell of alcohol on Clark's breath, and his uncooperative, unruly behavior, Deputy Irby arrested Clark.
Deputy Irby brought Clark to the Gallatin County Detention Center. During a booking search, Detention Officer Lee Kersey discovered five Valium tablets on defendant's person.
During a reading of the State of Montana Implied Consent Law Advisory Form, Clark interrupted, asking for a physician's care. When Deputy Irby did not respond, Clark asked if he was being denied a physician's care, and Deputy Irby replied, "at this time." Continuing a reading of the implied consent form, Clark stated he wanted "a physician and registered nurse at this moment to take a sample of my blood." Deputy Irby replied, "just a minute." When Deputy Irby finished reading the implied consent form, Clark refused the breath test.
Deputy Irby placed Clark in the custody of Deputy Kersey for placement in a holding cell. Deputy Kersey testified that Clark was unruly, uncooperative and used profane language. Because of his behavior, Deputy Kersey made phone calls for Clark. Detention Officers made five calls for the defendant, including three to his physician, Dr. Kurtz. One such call was made immediately after Clark was placed in the holding cell and had requested care for a foot injury. During none of these calls did Clark request the physician to perform a blood test. Clark was held for a period of fourteen hours, at which time he was released on bond.
The first issue is whether Clark was denied due process by being deprived of an opportunity to obtain exculpatory evidence. Clark argues his two requests to Deputy Irby during the reading of the implied consent form, and the Deputy's reply, placed the officer on notice he was requesting an independent blood sample. The State contends phone calls were made on Clark's behalf, three to his physician, and during none of these calls did he request a blood test. These calls, the State argues, gave Clark sufficient opportunity to obtain an independent blood test.
Section 61-8-405(2), MCA, allows for additional tests to determine blood alcohol, providing:
[T]he 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 ...
As this Court has recognized, a criminal accused has a constitutional right to attempt to obtain exculpatory evidence. State v. Swanson (Mont.1986), 722 P.2d 1155, 43 St.Rep. 1329; State v. Peterson (Mont.1987), 739 P.2d 958, 44 St.Rep. 1268; State, City of Bozeman v. Heth (Mont.1988), 750 P.2d 103, 45 St.Rep. 194. When the crime involves intoxication, the accused has a right to obtain a sobriety test independent of that offered by the arresting officer. Further, this right may not be abridged solely because the accused refused to submit to the sobriety test chosen by the arresting officer.
While these rights may seem absolute, they are not without limitation. Our decisions do not mandate police officers to affirmatively act to obtain exculpatory evidence, but instead, to avoid interference with efforts on the part of the accused to obtain a sampling of his blood.
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.
Swanson, 722 P.2d at 1158. Clearly, the Swanson rule only applies when (1) the defendant has timely claimed the right to a blood test, and (2) the officer or officers do not unreasonably impede the defendant's right to obtain a blood test. "If a blood test of the defendant is unavailable through no unreasonable acts of an officer or officers, the Swanson rule does not apply." Peterson, 739 P.2d at 961.
No such unreasonable impediments exist in the present case. Rather, Clark was given an opportunity to obtain an independent sampling. The detention officer testified to phone calls made on Clark's behalf, including a call to Dr. Kurtz immediately after being placed in the holding cell. Clark requested physician attention for a foot problem. At no time did Clark request Dr. Kurtz to administer a blood test.
We recognize Clark twice requested a physician's care during the reading of the implied consent form. However, these requests in no way diminish the effect of the later phone call to Clark's doctor. We reemphasize our holding in Swanson to the effect that police officers have no affirmative duty to assist in the gathering of exculpatory evidence, nor may they frustrate such efforts on the part of the accused.
Next, Clark asserts the admission of evidence regarding the results of the HGN test was in error as lacking proper foundation. We find this argument unpersuasive.
Horizontal Gaze Nystagmus is the...
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