No. 84-430 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN WILLIAM LOGAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

H. Charles Stahmer, Bozeman, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana; Marty Lambert, Deputy County Attorney, 

Bozeman, Montana 

Submitted on Briefs: June 28, 1985 

Decided: August 30, 1985 

-.- . ' 

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clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

John Logan filed a petition in the District Court of the 

Eighteenth Judicial District to have his driver's license 

reinstated. He appeals from the District Court order denying 

his motion to reinstate his driving privileges. 

On November 16, 1983, John Logan was arrested by Deputy 

Cashell of the Gallatin County Sheriff's Department for 

suspicion of driving while under the influence. Deputy 

Cashell advised John Logan of the Implied Consent Law of the 

State of Montana and informed him that he needed to take the 

breath test. Logan requested that he be allowed to take a 

blood test instead of the breath test. Deputy Cashell refused him the right to take the blood test, at his own expense. Deputy Cashell stated that Logan first must take the 

breath test in accordance with § 61-8-402, MCA. Logan's 

insistence on taking the blood test first was construed as a 

refusal to take the breath test, by Officer Cashell. Logan 

appeals the District Court refusal to reinstate his driver's 

license raising the following issue: 

Whether the requirement imposed by § 61-8-402 (3) , MCA, 

that all persons arrested for suspicion of driving while 

under the influence of alcohol be forced to take the breath 

test before the blood test, is a denial of our constitutional 

right to due process. 

Appellant argues that he was denied due process because 

he was not allowed to have a blood test. However, there is 

no evidence in the record that defendant was prejudiced in 

his ability to defend. In fact, defendant could have submitted to a blood test in order to refute the breath test if 

there was a difference. Defendant chose not to do so but 

rather chose to take no test because the officer insisted he 
take a breath test first. Under these circumstances defendant cannot be heard to complain. 

The issue of whether asking for a blood test and refusing a breath test constitutes a refusal under 5 61-8-402, 

MCA, is resolved in State v. Christopherson (Mont. 1985), 

P.2d -I - St.Rep. , decided this day. Suffice 

it to say that refusing the requested test constitutes a 

refusal for purposes of suspension. 

The State also raises the issue of whether this Court 

has jurisdiction to review this case because the notice of 

appeal did not specify that the appeal was taken from the 

motion to reinstate the driving privileges of the appellant. 

Apparently, the appellant argued the criminal matter, 

the charge of DUI, along with this civil matter at the District Court level. He then made a motion to dismiss the 

criminal case and a motion to reinstate his driving privilege 

(civil matter). The District Court issued an order that 

denied the appellant's motion to dismiss and denied his 

motion to reinstate his driving privileges. The appellant 

filed a notice of appeal that referred only to the motion to 

dismiss (the criminal matter). The State contends that a 

notice of appeal dealing with the civil case has not been 

filed with this Court and this Court does not have jurisdiction to consider the appeal. 

We find the appeal timely. Although appellant does not 

specify the part of the District Court order that he is 

appealing, he does state that he is appealing the District 

Court order dated August 16, 1984, which is the same order 

that denied appellant's motion to reinstate his driving 

privilege. That is sufficient notice of appeal of the civil 

issue. 
We affirm the District Court order denying appellant's 

motion to reinstate his driving privileges. 

We concur: .,-