No. 92-347 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

MICHAEL KLINKHAMMER, 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr., Cqnnon & Sheehy, 

Helena, Montana 

For Respondent: 

Honorable Marc Racicot, Attorney General, 

Cregg W. Coughlin, Assistant Attorney General, 

Helena, Montana; Robert L. Deschamps 111, Missoula 

County Attorney, Gary L. Henricks, Deputy 

County Attorney, Missoula, Montana 

Filed: 

Submitted on Briefs: October 14, 1992 

Decided: February 3, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Defendant and appellant, Michael Klinkhammer, appeals fromthe 

decision of the District Court of the Fourth Judicial District, 

Missoula County. Defendant was charged with driving under the 

influence of alcohol, second offense. Defendant s mot ion to 

dismiss the charge was denied by the District Court. Following the 

court's denial of his motion to dismiss, defendant entered a 

conditional plea of guilty to the charge. Defendant's motion to 

dismiss the charge was based on his contention that his due process 

rights were violated in that he was not allowed to obtain an 

independent test to determine the amount of alcohol in his body. 

The State argued that he did not request such a test and that his 

due process rights were not violated. The District Court agreed 

wit-h the State and denied defendant s motion to dismiss. Defendant 

appeals. We affirm. 

The only issue raised on appeal is whether the District Court 

was clearly erroneous in determining that defendant's due process 

rights were not violated in relation to obtaining an independent 

test to determine the amount of alcohol concentration in his body. 

In the early morning hours of June 23, 1991, defendant was 

stopped and arrested by a Missoula County Deputy sheriff for 

driving under the influence of alcohol. Defendant was taken to the 

Missoula County Sheriff's Office for processing. These proceedings 

were recorded by videotape. 

Upon arriving at the sheriff's office, the arresting officer 

explained to defendant Montana's implied consent statute found at 
tj 61-8-402, MCA. The officer explained that if defendant refused 

to submit to a test at that time to determine the concentration of 

alcohol in his body, the officer would be required to seize his 

driver's license. Additionally, the arresting officer informed 

defendant that in addition to the test being offered at that time, 

defendant could obtain an independent test at his own expense. 

Defendant was reluctant to take the offered test and requested 

instead that a test be administered by his doctor. As the 

videotape recording of these proceedings indicates, defendant 

apparently misunderstood the implied consent law as it was 

explained to him and believed that he could refuse the test being 

offered by the officer, but still keep his license by obtaining an 

independent test on his own. The officer explained several times 

to defendant that the independent test could be obtained in 

addition to the offered test, but that refusal of the offered test 

would result in the immediate seizure of his driver's license, 

regardless of any independent test defendant might later take. Once 

defendant understood that his refusal to take the offered test 

would result in the immediate seizure of his driver's license, he 

consented to take the offered test. 

Following the administration of the breath test by the 

officer, the videotape recording indicates that defendant did not 

request an independent test in addition to the administered test. 

There is no allegation that defendant requested an independent test 

at any time subsequent to the conclusion of the videotape 

recording. Defendant was released from jail on bond between 
5 and 6 a.m., approximately two to three hours after taking the 

intoxilyzer test. 

Defendant, representing himself, was found guilty by a jury in 

Justice Court of the offense charged. Defendant appealed to the 

District Court. In District Court, defendant, as he had done in 

Justice Court, moved to dismiss the driving under the influence 

charge. The basis for this motion was defendant's contention that 

his due process rights had been violated when he was not given an 

independent test to determine the alcohol level in his body at the 

time of the arrest. The issue was briefed by the parties and it 

was stipulated that the District Court would decide the motion 

based on the briefs and the videotape recording. The District 

Court denied the defendant Is motion on the basis that defendant had 

not made a timely request for an independent test. Defendant then 

entered a conditional plea of guilty to the offense charged, 

pursuant to 5 46-12-204(3), MCA. Thereafter, defendant filed his 

notice of appeal with this Court. 

Was the District Court clearly erroneous in determining that 

defendant's due process rights were not violated in relation to 

obtaining an independent test to determine the amount of alcohol 

concentration in his body? 

Defendant's due process argument rests on his allegation that 

during his processing by the arresting officer he requested, but 

was not allowed to obtain, an independent test. The District Court 

found that defendant did not request an independent test, and 

therefore, his due process rights were not violated. Our standard 
of review of factual findings in nonjury criminal cases as to the 

elements of the crime charged is "whether, after reviewing the 

evidence in a light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt." State v. Bower (Mont. 1992), 833 P.2d 

1106, 1110, 49 St. Rep. 586, 588. However, a district court's 

factual findings on other issues in criminal proceedings will be 

reviewed using the clearly erroneous standard. State v. Cope 

(1991), 250 Mont. 387, 819 P.2d 1280. The clearly erroneous 

standard is the appropriate standard of review in this case. 

Defendant alleges that he requested an independent test at the 

time of his processing on the driving under the influence charge. 

Defendant further contends that upon his release, several hours 

after the test administered by the officer, it was too late for him 

to obtain an independent test on his own. Section 61-8-405(2), 

MCA, provides that in addition to the test offered to a defendant 

by the law enforcement officer: 

The person may, at his own expense, have a physician 

or registered nurse of his own choosing administer a 

test, in addition to any administered at the direction of 

a peace officer, for the purpose of determining any 

measured amount or detected presence of alcohol in the 

person at the time alleged, as shown by analysis of his 

blood, breath, or urine. The failure or inability to 

obtain an additional test by a person does not preclude 

the admissibility in evidence of the test taken at the 

direction of the peace officer. 

This Court discussed the application of 5 61-8-405, MCA, in 

our recent decision in State v. Swanson (1986), 222 Mont. 357, 722 

P.2d 1155. We recognized that the right to attempt to obtain 
exculpatory evidence is constitutionally guaranteed to criminal 

defendants. Swanson, 722 P.2d at 1157. When a defendant is 

charged with the offense of driving under the influence, this right 

to obtain exculpatory evidence includes the right to obtain an 

independent test to establish sobriety, even if the defendant has 

refused the test offered by a peace officer. Swanson, 722 P.2d at 

1157. 

However, the mere fact that an independent test is not 

obtained is not a violation of a defendant's due process rights. 

The rule set out in Swanson was clarified in State v. Peterson 

(1987), 227 Mont. 418, 739 P.2d 958. In Peterson, we stated that 

the rule adopted in Swanson only applies when "(1) the defendant 

has timely claimed the right to a blood test, and (2) the officer 

or officers do not unreasonably impede the defendant's right to 

obtain a blood test.'' Peterson, 739 P.2d at 961. Both criteria 

must be satisfied in order to support an allegation of a violation 

of a defendant Is due process rights. The Swanson rule will not 

apply if the defendant either fails to timely request the test, or 

the test is unavailable through no unreasonable acts of law 

enforcement. 

The District Court Judge determined, after viewing the 

videotape recording, that the defendant did not timely request the 

right to an independent test. It is clear upon reviewing the 

videotape that defendant did request that a physician of his choice 

administer a test. However, defendant did not appear to be 

requesting an independent test as provided for in 5 61-8-405(2), 
MCA, but was instead requesting that his physician administer the 

test necessary under § 61-8-402, MCA, to avoid seizure of his 

driver's license. After several attempts, the officer was able to 

communicate to defendant that if the offered test was not taken, 

defendant's driver's license would be seized. Once defendant 

understood that he could not have a physician of his own choice 

administer the test under § 61-8-402, MCA, he consented to take the 

offered test and did not request an independent test of his own. 

On appeal, defendant refers in his reply brief to several 

statements made by the arresting officer which he argues 

demonstrate that a request had been made for an independent test. 

These statements indicate that the officer informed defendant that 

at his request he would be taken to the hospital for a test, or 

that he could phone a physician. These statements are merely a 

recitation of the law which the officer was required to explain to 

defendant. The statements only show that it was explained to 

defendant that an independent test would be available if he 

requested one. The statements do not show that defendant had in 

fact requested such a test. We hold that the District Court was 

not clearly erroneous in determining that defendant did not timely 

request a test, and therefore, his due process rights were not 

violated. 

Affirmed. 
we concur: 
Justice Terry N. Trieweiler dissenting. 

I respectfully dissent from the opinion of the majority. 

After reviewing the video tape of the conversation between the 

defendant and the officer who administered the breathalyzer, I 

conclude that the District Court was clearly erroneous when it 

found that the defendant did not timely request an independent test 

to determine whether or not he was intoxicated. That recording 

indicates that the following conversation took place: 

MR. KLINKWAMMER: You said that I could have a doctor or 

physician of my choice. 

OFFICER TILLMAN: Yeah, (inaudible). 

MR. KLINKHAMMER: (Inaudible) that -- I would like to 

have Dr. Hoell (inaudible). He is my psychiatrist. 

OFFICER TILLMAN: Okay. That Is fine. That is your test. 

You are allowed to have a test at your own expense like 

that. However, that is separate and above this one here. 

This is the one I'm offering you pursuant to Implied 

Consent. 

MFt. KLINKHAMMER: I thought that I had a right to any 

test according to that statement. 

OFFICER TILLMAN: [Reading from Implied Consent f om. ] 

"In addition to any test administered at the direction of 

a peace officer, you may, at your own expense, have a 

physician or nurse of your own choosing administer a test 

for the purpose of determining the amount of alcohol in 

your blood. 

The key words there are !Iin addition to any test 

administered at the direction of a peace officer." And 

pursuant to Implied Consent, to keep your driver's 

license, this is the test that I am offering you right 

now. 

MR. KLINKHAMMER: Okay. That means, though, in order -- 

in order to -- for the various tests to be valid, they 

must be done at the same time. Okay? 
OFFICER TILLMAN: You can be taken down to the hospital, 

and at your own expense we'll draw your blood after we 

get through here. So whatever you'd like. 

MR. KLINKHAMMER: At the same time I'd like to have Dr. 

Hoell there. 

OFFICER TILLMAN: Okay. (Inaudible) if you -- if you can 

call Dr. Hoell, that's fine, but right now we're not 

going to do -- talk about that part of it anymore. We'll 

take- care of that after mv part of it's over. That's 

your wart. [Emphasis added.] 

It is clear from this conversation that the defendant 

requested an independent evaluation by his own physician and that 

he was assured by the officer who interviewed him that such an 

evaluation would be taken care of after the breathalyzer was 

administered by the officer. However, the defendant remained in 

the custody of the Missoula Police for two more hours and no 

opportunity was afforded for the independent evaluation. He was 

not free to check into a hospital on his own, and needed the 

cooperation of the police department in order to exercise his right 

to an independent evaluation. He requested that assistance. He 

was promisedthat assistance, but it apparently was never provided. 

The facts in this case are not similar to those in State v. Clark 

(1988), 234 Mont. 222, 762 P.2d 853. In that case, the defendant 

was given an opportunity to, and did call his physician. However, 

during that conversation with his physician the defendant did not 

request an independent evaluation. In that case, the Court 

correctly concluded that the defendant waived the right to an 

independent evaluation by not requesting one at the time when it 

was most logical to do so. 
In State v. Swalzson (l986), 222 Mont. 357, 722 P.2d 1155, we 

recognized that the right provided for in 5 61-8-405(2), MCA, is 

the right to gather exculpatory evidence and is guaranteed by the 

due process clause of the Fifth Amendment to the United States 

Constitution. 

Any right that rises to the level of constitutional magnitude 

should not depend for its enforcement on a nuance so irrelevant as 

the frequency with which it is asserted, nor the order in which it 

is asserted. Yet, that is the result of the majority's decision. 

For these reasons, and pursuant to Swanson, I would reverse the 

District court. 
February 3, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Edmund F. Sheehy, Jr. 

CANNON & SHEEHY 

P.O. Box 5717 

Helena, MT 59604 

HON. MARC RACICOT, Attorney General 

Cregg Coughlin, Assistant 

Justice Bldg. 

Helena, MT 59620 

Robert L. Deschamps, 111, County Attorney 

Gary L. Hendricks, Deputy 

200 W. Broadway 

Missoula. MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA