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: DistrictCourtof theEighteenth

### Judicial District, 

### Inand for the Countyof Gallatin, The Honorable

### Joseph B. Gary, 

### Judge presiding.
COUNSEL OF RECORD:
For Appellant: H. CharlesStahmer, Bozeman, Montana
For Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana A. Michael 

### Salvagni, CountyAttorney, Bozeman, Montana; MartyLambert, Deputy CountyAttorney, Bozeman, Montana

Submitted

### on Briefs: 

### June 28, 1985 Decided: August 30, 1985



# -.-

.' 4' 

# k
clerkMr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court. John Logan filed a petition intheDistrict Court of the Eighteenth Judicial District to have his driver's license reinstated. He appeals from the

### DistrictCourt orderdenying hismotion toreinstatehisdriving 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 totake 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, athis own expense. Deputy Cashell stated that Logan firstmust take the breath 

### test in accordance with § 61-8-402, MCA. Logan's insistence on taking theblood 

### test firstwas construed asa refusal to take the breath 

### test, by Officer Cashell. Logan appeals the District Court refusal toreinstate 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 totake the breath 

### test before theblood 

### test, 

### isa denial of our constitutional right todue process. Appellant argues that he was denied due process because he was not allowed tohave a blood 

### test. However, there 

### is
no evidence in the record that defendant was prejudiced in hisabilitytodefend. 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 totake no 

### test because the officer insisted he

### take a breath 

### test first. Under these circumstances defendant cannot be heard tocomplain. 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 thisday. Suffice 

### it to say that refusing the requested 

### test constitutes a refusal forpurposes 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 toreinstate the drivingprivileges of the appellant. Apparently, the appellant argued the criminal matter, the charge of DUI, 

### along with this civilmatter atthe Dis

### trict Court level. He 

### then made a motion to dismiss the criminal case and a motion toreinstatehisdrivingprivilege (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 tothemotion to dismiss (the criminal matter). The State contends that a notice of appeal dealing with the civil case has not been filedwith this Court and this Court does not have jurisdiction toconsider 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: .,-