State v. Strand
| Citation | 951 P.2d 552,286 Mont. 122 |
| Decision Date | 16 December 1997 |
| Docket Number | No. 96-366,96-366 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Dennis STRAND, Defendant and Appellant. |
| Court | Montana Supreme Court |
Stephen J. Nardi (argued), Sherlock & Nardi, Kalispell, for Defendant and Appellant.
Joseph P. Mazurek, Attorney General, Tammy Plubell (argued), Assistant Attorney General, Helena, Glen Neier, Kalispell City Attorney, Kalispell, for Plaintiff and Respondent.
Appellant Dennis Strand (Strand) appeals from the final judgment and order of the Eleventh Judicial District Court, Flathead County. The District Court accepted Strand's conditional plea of guilty to the charge of driving under the influence of alcohol and sentenced him to 60 days in jail, all but one suspended, upon certain conditions, including his payment of a $350 fine. We reverse and remand.
Strand raises two issues on appeal. We determine that issue 1 is dispositive and, therefore, we need not address issue 2. Therefore, we address whether Strand's due process rights were violated when the arresting officers failed to inform him that he had the right to obtain an independent blood test.
In April 1995, Strand was stopped by two officers of the Kalispell Police Department on suspicion of driving under the influence of alcohol. The officers noted that Strand had slurred speech, bloodshot eyes, and smelled of alcohol. Strand had to lean against his vehicle for balance, could not recite the alphabet correctly, and had difficulty following instructions. The officers arrested Strand for driving under the influence of alcohol.
At the Kalispell Police Department, one of the officers said to Strand, "I need you to take a breath test." Strand consented and submitted to the BAC test. The results indicated that Strand had a BAC of .215. Pursuant to the express policy of the Kalispell Police Department, officers read the implied consent advisory form only when the arrested person first refuses to submit to a BAC test. Because Strand consented to the test, neither officer read Strand an implied consent advisory form before asking him to submit to the test or before administering the test. Thus, Strand was not advised that he could obtain an independent blood test for the purpose of determining his blood alcohol concentration.
Strand was charged in the Kalispell City Court with driving under the influence of alcohol, a misdemeanor. Subsequently, he filed a motion to dismiss, arguing that the State had violated his right to due process under the U.S. and Montana constitutions by failing to inform him that he had a right to obtain an independent blood test. The City Court held that Strand's due process rights were violated because he was not advised of his right to obtain an independent blood test and he did not knowingly and voluntarily agree to take a BAC test. The City appealed to the District Court. Strand again filed a motion to dismiss; however, the District Court denied the motion and accepted Strand's conditional plea of guilty to the charge of driving under the influence of alcohol.
The issue of whether Strand's due process rights were violated is a question of law. This Court's standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. State v. Miller (1996), 278 Mont. 231, 233, 924 P.2d 690, 691; Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
Every person who operates a motor vehicle in the state of Montana has impliedly consented to submit to a blood or breath test for the purpose of determining the presence or amount of alcohol or drugs in the body. Section 61-8-402(1), MCA. If a person refuses to submit to the test designated by the arresting officer, "a test may not be given, but the officer shall, on behalf of the department, immediately seize the person's driver's license." Section 61-8-402(4), MCA (1993). In addition to the test administered at the direction of the officer, a person may obtain an independent test for determining any measured amount or detected presence of alcohol in the person's system. Section 61-8-405(2), MCA. The right to obtain an independent blood test is both statutory and required by due process. See § 61-8-405(2), MCA; State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155.
The Kalispell Police Department uses an implied consent advisory form to explain the substance of Montana's implied consent statutes to the accused. However, the express policy of the department requires that officers not read the form unless or until the accused refuses to submit to the test designated by the officer. If the accused agrees to submit to the test, the officers do not read the consent form, and the accused is never informed of his or her right to obtain an independent blood test. In this case, the arresting officer told Strand that he "needed" him to take a BAC test, and Strand immediately agreed. Thus, at no time was Strand read an implied consent advisory form or otherwise made aware of the implied consent laws of Montana.
Strand argues that the State violated his right to due process of law. He contends that by adopting a procedure by which he was not informed of his right to obtain an independent blood test unless he refused the officer's test, the Kalispell Police Department, through its rules and regulations, denied him his right to obtain exculpatory evidence in direct contravention of this Court's holding in State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155. The State argues that Swanson did not create an affirmative duty to inform a defendant of his statutorily-created right to obtain an independent test and that the officers' failure to do so did not amount to a violation of due process.
In Swanson, the defendant refused to submit to a breath test, as requested by the arresting officer, but asked to be taken to the hospital for a blood test. Swanson, 722 P.2d at 1156. After blood was drawn, the officer gave the sample to the defendant, informed him that it was his responsibility to have the sample analyzed, and took the defendant to the police station. Swanson, 722 P.2d at 1156. During booking, the sample was taken from the defendant with the rest of his personal belongings and left on a counter in the booking room for two days. Since the blood sample was not properly refrigerated, it could not be analyzed, and the defendant's BAC was never determined. Swanson, 722 P.2d at 1156.
On appeal, the defendant argued that he was denied due process because the State had deprived him of a reasonable opportunity to gather exculpatory evidence. Swanson, 722 P.2d at 1157. This Court held that an accused has a constitutional due process right to obtain exculpatory evidence. Swanson, 722 P.2d at 1157. Further, we held that when a crime involves intoxication, the right to gather exculpatory evidence includes "a right to obtain a sobriety test independent of that offered by the arresting officer," regardless of whether the accused agrees to submit to the officer's test. Swanson, 722 P.2d at 1157. We determined that the defendant's blood sample was taken from him as part of a routine inventory search and held that "[w]hile 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.
We agree with the State that this Court's holding in Swanson did not go so far as to create an affirmative duty to inform an accused of his right to an independent blood test. Rather, this Court recognized that an accused has a constitutional due process right to obtain exculpatory evidence and held that the State cannot act in a manner or adopt any procedure that frustrates this effort. We now take the next step and hold that due process requires that the arresting officer inform the accused of his or her right to obtain an independent blood test, regardless of whether the accused consents to the test designated by the officer.
While some citizens of Montana may be aware of the obligation they undertake by driving--to consent to a blood or breath alcohol test or forfeit their licenses--most are not aware of their corresponding right to obtain an independent blood test. Because of the evanescent character of blood alcohol evidence, the decision to obtain an independent test must be made in a timely fashion. Montano v. Superior Court (1986), 149 Ariz. 385, 719 P.2d 271, 275. Therefore, unless the defendant is apprised of this right while the blood can still be analyzed, the right is rendered meaningless.
The accused must be informed of the right to obtain an independent blood test at the time of the arrest. A person accused of driving under the influence of alcohol does not have a right to counsel before submitting to a BAC test and, therefore, is foreclosed from conferring with counsel about his or he rights and duties under Montana's implied consent laws until after consent to the test has been given or withheld. State v. Armfield (1984), 214 Mont. 229, 693 P.2d 1226. Therefore, the arresting officer is the only person in a position to inform the defendant of this right, and we now hold that the officer has an affirmative duty to do so.
The current policy of the Kalispell Police Department is to read an implied consent advisory form to an accused only if he or she has refused to submit to a BAC test. Although the substance of the implied consent advisory form is not before us, the State concedes that had Strand been read this form, he would have been advised of his right to obtain an independent blood alcohol test. The State admits that:
it would have been preferable for the officer to read Strand the contents of the implied consent statutes even though Strand...
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