State v. Turbiville
| Decision Date | 15 December 2003 |
| Docket Number | No. 02-037.,02-037. |
| Citation | 2003 MT 340,81 P.3d 475,318 Mont. 451 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Larry TURBIVILLE, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Gary R. Thomas, Thomas Law Office, Red Lodge, Montana.
For Respondent: Mike McGrath, Attorney General; Brenda Nordlund, Assistant Attorney General, Helena, Montana.
Albert R. Batterman, County Attorney, Baker, Montana.
¶ 1 Larry Turbiville (Turbiville), the holder of a North Dakota driver's license, was convicted in Fallon County Justice Court for driving a motor vehicle while under the influence of alcohol in violation of § 61-8-401, MCA (1997). Turbiville appealed his conviction to the Sixteenth Judicial District Court of Fallon County for a trial de novo and moved to suppress the evidence obtained from his breath tests. Following the court's denial of his motion, Turbiville pled guilty to driving while under the influence of alcohol, reserving his right to appeal the District Court's denial of his motion to suppress. Turbiville now appeals the denial of his motion to this Court. We affirm.
¶ 2 We rephrase Turbiville's issues on appeal as follows:
¶ 3 Did the District Court err in denying Turbiville's motion to suppress the results of his breath tests, which was premised on the basis that he was provided misleading information about the ramifications of his failure to take the test?
¶ 4 On the evening of August 20, 1998, Officer Pat Harrison of the Montana Highway Patrol (Officer Harrison) was patrolling north on Montana Highway 7 in Fallon County when he came upon a Ford pickup, driven by Larry Turbiville, which he observed crossing over the center line. Officer Harrison turned his vehicle around and began following the pickup.
In the course of several miles, Harrison observed the pickup again cross over the center and fog lines. He also noticed that the vehicle was operating with expired registration tags. Officer Harrison activated his overhead lights and the pickup came to a stop on the side of the road.
¶ 5 As Officer Harrison approached the vehicle, he smelled what he believed to be alcohol coming from Turbiville. Harrison ordered Turbiville out of the vehicle and into the patrol car where he asked him if he had been drinking. When Turbiville responded that he had had "one or two," Officer Harrison noticed that Turbiville's speech was slurred. After completing a citation for expired registration, Officer Harrison administered a Horizontal Gaze Nystagmus test (HGN test) to Turbiville. He then read a Preliminary Alcohol Screening Test Advisory, stating in relevant part:
¶ 6 Turbiville, a North Dakota resident and holder of a North Dakota driver's license, was provided no additional information concerning his rights regarding the preliminary breath test (PBT). In particular, Officer Harrison did not advise Turbiville that he could refuse to take the test and challenge the seizure of his license in district court.
¶ 7 After hearing the advisory, Turbiville submitted to the PBT, which estimated a body alcohol content in excess of the legal limit. As a result, Turbiville was placed under arrest for driving under the influence of alcohol (DUI) and transported to the Fallon County Sheriff's Office. Upon arriving at the Sheriff's Office, Turbiville was asked to submit to a test on the Intoxilyzer 5000, a non-portable device designed to measure the body's blood alcohol content, and read the Montana Department of Justice Implied Consent Advisory, which states in pertinent part:
¶ 8 After hearing this advisory, Turbiville consented to a breath test on the Intoxilyzer 5000. He also signed a written copy of the advisory, acknowledging that it had been read to him. Turbiville then took the test on the Intoxilyzer 5000, which reported a blood alcohol content of .194.
¶ 9 On August 24, 1998, Turbiville appeared before the Justice Court of Fallon County, pleading not guilty to his second offense of driving under the influence of alcohol, in violation of § 61-8-401, MCA. Following a bench trial in Justice Court, Turbiville was found guilty of DUI. He subsequently appealed his conviction to the Sixteenth Judicial District Court of Fallon County for a trial de novo. Prior to trial, Turbiville moved the court to suppress the results of the breath tests performed the evening of his arrest on the grounds that his due process rights were violated by Montana's Implied Consent Advisory, which, he argued, was inaccurate when applied to nonresidents. The District Court rejected Turbiville's contentions and denied his motion. Thereafter, Turbiville entered a plea bargain agreement with the State agreeing to plead guilty to DUI, and reserving his right to appeal the District Court's denial of his motion to suppress the evidence resulting from his breath tests. Turbiville now appeals.
¶ 10 A district court's denial of a criminal defendant's motion to suppress is reviewed on appeal to determine whether the court's "findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law." State v. VonBergen, 2003 MT 265, ¶ 7, 317 Mont. 445, ¶ 7, 77 P.3d 537, ¶ 7 (citations omitted). Because the issue of whether a defendant's due process rights were violated is a question of law, we review the district court's conclusion to determine whether its interpretation of the law was correct. State v. Strand (1997), 286 Mont. 122, 124, 951 P.2d 552, 553 (overruled on other grounds by State v. Minkoff, 2002 MT 29, ¶ 23, 308 Mont. 248,
¶ 23, 42 P.3d 223, ¶ 23).
¶ 11 Did the District Court err in denying Turbiville's motion to suppress the results of his breath tests, which was premised on the basis that he was provided misleading information about the ramifications of his failure to take the test?
¶ 12 Turbiville claims that the results of the PBT and the later administered Intoxilyzer breath test should have been suppressed because the advisories given to him were inadequate and misleading, and thereby amounted to a violation of his due process rights. First, Turbiville contends the PBT advisory was inadequate because it failed to advise him of his right to judicial review of the license suspension should he refuse to take the test. In support of his argument, Turbiville relies on Pickens v. Shelton-Thompson, 2000 MT 131, ¶ 18, 300 Mont. 16, ¶ 18, 3 P.3d 603, ¶ 18, for the proposition that "notice which is confusing, misleading, or inaccurate is insufficient to meet procedural due process requirements under the United States Constitution because such notice does not adequately safeguard a person's concomitant due process right of an opportunity to be heard." The State counters that Turbiville had no concomitant due process right to a hearing when he was presented with the opportunity to refuse the preliminary breath test, and thus, his reliance on Pickens is misplaced.
¶ 13 Factually, Pickens differs significantly from this case. In Pickens, child support obligor Pickens timely filed a petition for judicial review of a CSED order and mailed copies of the petition to the obligee and to CSED. Pickens, ¶ 4. CSED moved to dismiss for lack of jurisdiction because Pickens had failed to properly serve the parties as required by § 40-5-253, MCA. Pickens, ¶ 4. The District Court granted the motion to dismiss, and Pickens appealed. Pickens, ¶ 6.
¶ 14 On appeal, we observed that the notice provisions contained in the CSED order informed Pickens of his right to petition for judicial review under the provisions of MAPA (Title 2, Chapter 4, Part 7, MCA) which did not require issuance and service of a summons in conjunction with the petition, but failed to inform him of the more stringent service requirements of § 40-5-253, MCA, which required personal service with a summons. Pickens, ¶¶ 3, 10. By omitting any reference to the different procedural requirements for CSED actions contained in § 40-5-253, MCA, the notice implied that judicial review was governed exclusively by MAPA, causing Pickens to improperly serve his petition for judicial review, and, ultimately, lose the opportunity to meaningfully exercise that right. Pickens, ¶¶ 4, 17. We accordingly reversed the district court's order of dismissal and remanded for further proceedings on Pickens' petition for judicial review. Pickens, ¶ 23.
¶ 15 Here, unlike the notice provided in Pickens, the PBT advisory did not provide misleading or inaccurate information. The advisory accomplished its intended purpose of informing Turbiville of his choices at the time of testing and of the potentially serious consequences of refusing to submit to a blood or breath test. It did not mislead Turbiville into forfeiting his right to a later hearing or otherwise disturb that right. If Turbiville would have refused the test, and...
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