No. 85-115 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICK RAY CHRISTOPHERSON, 

Defendant and Appellant. 

APPEAL PROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Cok & Wheat; Eula Compton, Bozeman, Montana 

For Respondent : 

Mike Greely, Attorney General, Helena, Montana 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana 

Submitted on Briefs: June 28, 1985 

Decided: August 30, 1935 

A I 3 - 7gq:: Filed: 

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

the Court. 

Christopherson appealed the Department of Motor Vehicle's suspension of his driver's license to the Eighteenth 

Judicial District Court in Gallatin County on the basis that 

the license should not have been suspended under 

S 61-8-402(3), MCA, since he did not refuse to submit to a 

chemical test of blood alcohol content. This is an appeal 

from the District Court's order denying his petition for 

reinstatement of his driver's license. 

Rick Christopherson is a 24-year-old Cut Bank rancher 

and part-time student at Montana State University. He was 

arrested, on December 21, 1984, for driving while under the 

influence of alcohol. Christopherson was taken to the 

Bozeman Detention Center. He was informed of the Montana 

Consent Law in a reading, by the arresting officer, of a 

Consent Law form used by the City of Bozeman. Christopherson 

asked that a blood test be given. He was informed that he 

did not have a choice and that a blood test would be given 

only if he first submitted to a breath test. Christopherson 

again asked and offered to pay for a blood test; he refused 

to take the breath test. His refusal was recorded as a 

refusal to submit to any test. His license was taken by the 

arresting officer and subsequently suspended, for ninety (90) 

days, by the Department of Motor Vehicles. Christopherson 

appeals the District Court's refusal to reinstate his driver's license presenting the following issue: 

Did the appellant's statement following his arrest for 

driving under the influence of alcohol that he would not 

submit to the designated breath test, but that he instead 

wanted a blood test, constitute a refusal under S 61-8-402, 

NCA? 
Montana's implied consent statute S 61-8-402(1)(3), MCA, 

states as follows: 

61-8-402. Chemical blood, breath, or urine tests. 

(1) Any person who operates a motor vehicle upon 

ways of this state open to the public shall be 

deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, 

breath, or urine for the purpose of determining the 

alcoholic content of his blood if arrested by a 

peace officer for driving or in actual physical. 

control of a motor vehicle while under the influence of alcohol. The test shall be administered at 

the direction of a peace officer having reasonable 

grounds to believe the person to have been driving 

or in actual physical control of a motor vehicle 

upon ways of this state open to the public while 

under the influence of a-lcohol . he arresting 

officer mav desianate which one of the aforesaid 

tests -- shall be administered. 

(3) If a resident driver under arrest refuses upon 

the request of a peace officer to submit to a 

chemica 1 test designated & the arresting officer 

as provided in subsection (1) of this section, none 

shall be given, but the officer shall, on behalf of 

the division, immediately seize his driver's license. The peace officer shall forward the license 

to the division, along with a sworn report that he 

had reasonable grounds to believe the arrested 

person had been driving or was in actual physical 

control of a motor vehicle upon ways of this state 

open to the public, while under the influence of 

alcohol and that the person had refused to submit 

to the test upon the request of the peace officer. 

Upon receipt of the report, the division shall 

suspend the license for the period provided in 

subsection (5) . [Emphasis added. 1 

Law enforcement officials have interpreted this statute 

to require police determination of the type of test to be 

given, either blood, breath, or urine. When the officer 

designates a test and the driver refuses that test but asks 

for another type of test, the officer takes that as a refusal 

to submit to a chemical test and seizes the driver's license 

pursuant to S 61-8-402(3), MCA. We agree. 

The purpose of S 61-8-402, MCA, is to encourage a person 

arrested for DUI to submit to a chemical test. The statute 

provides that the arresting officer is to designate which 

type of chemical test will be administered. The arrested 
person may take the designated test or refuse it, but if he 

will not take the test designated by the officer, his driver's license shall be suspended. The language of the statute 

makes it clear that it is the refusal to take the test designated 9 the arresting officer that triggers the suspension, 

not the refusal to take any test whatsoever. If the arrested 

person chooses to take a chemical test other than the test 

designated by the arresting officer and will not take the 

designated test, it is still a refusal for which his driver's 

license will be suspended. 

The appellant's driver's license was properly suspended 

and the District Court is affirmed. 

We concur: