No. 85-115 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,



### -vsRICK RAY CHRISTOPHERSON, Defendant and Appellant.

APPEAL PROM: DistrictCourt

### of the EighteenthJudicial District, In

### and for the County

### of Gallatin, The Honorable Joseph B. Gary, Judge presidinq.

COUNSEL OF RECORD:



### For Appellant: Cok & Wheat; EulaCompton, Bozeman, Montana

For Respondent: Mike Greely, AttorneyGeneral, Helena, Montana A. Michael Salvagni, CountyAttorney, 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 reinstatementof 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 formused 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 licensewas taken by the arresting officer and subsequently suspended, forninety (90) days, by the Department of Motor Vehicles. Christopherson appeals the District Court's refusal to reinstate his driver's licensepresenting 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, orurine 

### tests. (1) Any person who operates a motor vehicle upon ways of this state open to the public shall be deemed tohave given consent, subject totheprovisionsof 61-8-401, to

### a chemical test of hisblood, breath, orurine forthepurpose 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 shallbe administered at the direction of a peace officerhaving reasonable grounds tobelieve the person tohave 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 shallbe administered. 

## --
(3) If a resident driver under arrestrefuses upon the request of a peace officer to submit to a chemica1 

### test designated 

## & the arresting officer asprovided in subsection (1)

### of this section, none shallbe given, but the officer shall, on behalf of the division, immediately seize his driver's license. The peace officer shall forward the license tothe division, alongwith a sworn report thathe 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 tothe 

### test upon the request of thepeace 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 foranother type of 

### test, the officertakes that asa refusal to submit to a chemical 

### test and seizes the driver's license pursuant to

### S 61-8-402(3), 

### MCA. Weagree. The purpose of 

### S 61-8-402, MCA, 

### istoencourage 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 arrestedperson may take the designated 

### test or refuse 

### it, but ifhe 

### will not take the 

### test designated by the officer, his driv

### er's 

### license shallbe suspended. The language of the statute makes 

### it clearthat 

### it is the refusal totake the

### test designated

## 9 the arresting officerthat triggers the suspension, not therefusal totake 

### 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 

### stilla refusal forwhich hisdriver's license

### willbe suspended. The appellant's driver's license was properly suspended and theDistrictCourt 

### is affirmed.

Weconcur: