No. 01-687 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 351 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

DALE BEANBLOSSOM, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and For the County of Musselshell, 

Honorable David Cybulski, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

Robert W. Snively, Attorney at Law, Roundup, Montana 

For Respondents: 

Honorable Mike McGrath, Attorney General; Brenda Nordlund, 

Assistant Attorney General, Helena, Montana 

Catherine Truman, County Attorney, Roundup, Montana 

Submitted on Briefs: April 25, 2002 

 Decided: December 30, 2002 

Filed: 

__________________________________________ 

Clerk 
2 

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 The defendant, Dale Beanblossom (Beanblossom), was charged 

with “Driving under the Influence of Alcohol, Fourth or Subsequent 

Offense” in violation of §§ 61-8-401 and -731, MCA. Beanblossom 

filed a motion to dismiss, alleging that the arresting officer 

failed to administer a breathalyzer test in violation of § 61-8-

402(2), MCA, and in violation of his constitutional right to due 

process. The District Court for the County of Musselshell denied 

Beanblossom’s motion, and a jury ultimately convicted him of the 

felony DUI charge. Beanblossom appeals the District Court’s 

denial of his motion to dismiss. We affirm. 

Background

¶2 On March 15, 2001, Musselshell County Deputy Sheriff Jon 

Goffena, responded to a domestic disturbance call from 

Beanblossom’s wife. On his way to the Beanblossom residence, 

Officer Goffena noticed Beanblossom pulling out of a gas station 

and onto the highway, heading in the direction of his residence. 

Goffena followed the vehicle for approximately 100 to 200 yards, 

during which time he observed the vehicle moving 10 to 15 miles an 

hour in a 25 mile per hour zone with its right-turn signal 

blinking. Officer Goffena decided to pull Beanblossom over before 

he reached home so that Goffena could investigate the domestic 

disturbance call and diffuse a potentially hazardous situation. 

When Goffena turned on his patrol lights, Beanblossom’s vehicle 

made a “big swerve” as it pulled over on the side of the highway. 
3 

¶3 As Officer Goffena approached the vehicle, he noticed that 

Beanblossom was “force-feeding himself corn nuts,” and that the 

distinct odor of alcohol was on his breath. He asked Beanblossom 

to get out of his vehicle and directed him to step behind the 

vehicle. The investigation beside the patrol car was videotaped. 

According to Officer Goffena, Beanblossom acted in a threatening 

manner. Several times during the investigation, Beanblossom 

referred to a fight that had occurred earlier in the day with a 

woman. In describing the fight, Beanblossom emphatically swung his 

arms and demonstrated how the woman allegedly grabbed him, then 

pulled back and crooked his arm, as if to throw a punch. Officer 

Goffena testified that he felt “pretty tense” while he was dealing 

with Beanblossom because of “[t]he screaming, the hollering, the 

look on his face, the actions that were going on” and because 

Beanblossom “kept crowding [his] space.” 

¶4 After the initial roadside investigation, Goffena took 

Beanblossom to the detention center where he read Beanblossom an 

implied consent advisory. This interview was also videotaped. In 

response to Goffena’s question, “Will you take a breath test?” 

Beanblossom responded, “Yeah.” However, by that point, the officer 

was “stressed,” “completely distracted,” not “paying attention to 

what [he] was reading” and did not administer the breath test even 

though Beanblossom had consented. Instead, Goffena marked the 

implied consent form to indicate that Beanblossom had refused the 

test. In fact, Officer Goffena testified that he did not realize 
4 

that Beanblossom had actually consented to the breath test until 

the county attorney told him that it was on the video tape. 

¶5 Ultimately, Beanblossom was charged with DUI, which if 

convicted of, would have constituted his fourth DUI offense, a 

felony. Beanblossom, through counsel, filed a motion to dismiss 

the charge based on the officer’s failure to administer the breath 

test, which Beanblossom contends would have been exculpating. 

After a hearing, the District Court denied the motion. 

Subsequently, a jury found Beanblossom guilty of DUI, and 

Beanblossom was sentenced to 13 months with the Department of 

Corrections and four years of probation. Beanblossom appeals the 

denial of his motion to dismiss. We affirm. 

¶6 Beanblossom presents the following issues on appeal: 

¶7 1. Whether the District Court erred in not granting 

Beanblossom’s motion to dismiss? 

¶8 2. Whether Beanblossom’s due process rights were violated 

when the arresting police officer failed to administer Beanblossom 

a breath test? 

Discussion

¶9 The grant or denial of a motion to dismiss in a criminal case 

is a question of law which is reviewed de novo on appeal. State v. 

Hardaway, 2001 MT 252, ¶ 64, 307 Mont. 139, ¶ 64, 36 P.3d 900, ¶ 

64. This Court’s standard of review is plenary, and we determine 

whether a district court’s conclusion is correct. Hardaway, ¶ 64. 

Issue 1
5 

¶10 Whether the District Court erred in not granting Beanblossom’s 

motion to dismiss? 

¶11 Appellant Beanblossom argues that the District Court erred in 

denying his motion to dismiss because Montana law, specifically § 

61-8-402(2), MCA, mandates breath tests in cases where an officer 

suspects a person of driving under the influence of alcohol. 

Therefore, Beanblossom maintains that Officer Goffena’s failure to 

administer a breath test violated the statutory mandate of § 61-8-

402, MCA. He further asserts that Goffena’s failure to administer 

him a breath test bars the State from prosecuting him for the DUI 

offense. Because the linchpin of Beanblossom’s argument is that § 

61-8-402(2), MCA, mandates breath tests in Montana, we first 

address whether this statute includes such a requirement. 

¶12 The resolution of this question involves Montana’s implied 

consent statute, § 61-8-402(1), MCA, which provides that “[a] 

person who operates or is in actual physical control of a vehicle 

upon the ways of this state open to the public is considered to 

have given consent to a test or tests of the person’s blood or 

breath for the purpose of determining any measured amount or 

detected presence of alcohol or drugs in the person’s body.” 

Therefore, a person driving on a Montana highway is presumed to 

have consented to taking a breath test if an officer has reasonable 

grounds to believe that the person was under the influence of 

alcohol. If the driver withdraws his or her consent by refusing to 

take a breath test, the driver is subject to the immediate seizure 
6 

of his or her driver’s license, as well as possible suspension and 

revocation of the license. See § 61-8-402, MCA. 

¶13 According to Beanblossom, subsection (2) of the implied 

consent statute mandates the administration of breath tests. This 

subsection provides as follows: 

[Breath] test or tests must be administered at the 

direction of a peace officer when: (i) the officer has 

reasonable grounds to believe that the person has been 

driving or has been in actual physical control of a 

vehicle upon ways of this state open to the public while 

under the influence of alcohol . . . . 

Section 61-8-402(2), MCA (emphasis added). 

¶14 Beanblossom maintains that the word “must” renders the statute 

mandatory and thus requires a peace officer to administer a breath 

test when he or she believes that a person has been driving while 

intoxicated. Therefore, Beanblossom asserts that Officer Goffena 

violated § 61-8-402(2), MCA, when he failed to give Beanblossom a 

breath test and that this violation in turn bars his prosecution of 

the DUI offense. 

¶15 The question of whether § 61-8-402(2), MCA, mandates breath 

tests is one of first impression for this Court. This issue, 

however, has been examined by courts outside of Montana, which have 

interpreted the mandatory language in similarly written statutes as 

identifying who may administer breath tests when, and if, a breath 

test is administered. In State v. Entzel (Wash. 1991), 805 P.2d 

228, the Washington State Supreme Court considered whether that 

state’s implied consent statute imposed a mandatory duty on police 

officers to offer breath tests to all persons accused of driving 

while under the influence. The Entzel court held that the statute 
7 

did not impose a mandatory duty on peace officers to offer and 

administer breath tests to every person accused of driving while 

intoxicated. See Entzel, 805 P.2d at 229-30. The court ruled that 

the statutory language merely designated who may administer the 

breath test. See Entzel, 805 P.2d at 231. Importantly, the Entzel

court noted that, “[n]ationally, case law holding that implied 

consent statutes do not impose a duty on law enforcement to offer 

breath or blood tests has been remarkably consistent over several 

decades.” Entzel, 805 P.2d at 230, n.3 (listing cases). 

¶16 We agree with the interpretation of the implied consent 

statute articulated in Entzel. The breath test is merely a means 

of determining the level of intoxication. The statute does not 

make a breath test the exclusive means of proving intoxication. It 

is not, as Beanblossom suggests, a precondition to prosecution for 

DUI. The officer can, in his or her discretion, rely on other 

indicia of intoxication. The “must” language of the statute refers 

to “who” administers the test if, in the officer’s discretion, a 

test is given. “Must” does not refer to “whether” the test has to 

be administered. 

¶17 Therefore, because § 61-8-402(2), MCA, merely mandates who may 

administer a breath test and does not require the administration of 

breath tests, we conclude that the District Court did not err in 

denying Beanblossom’s motion to dismiss. 

Issue 2
8 

¶18 Whether Beanblossom’s due process rights were violated when 

the arresting police officer failed to administer Beanblossom a 

breath test? 

¶19 Next, we turn to Beanblossom’s argument that his due process 

rights were violated by Officer Goffena’s failure to administer a 

breath test, which Beanblossom contends would have been 

exculpating. Beanblossom directs this Court to previous decisions 

where we have ruled that when the alleged crime involves 

intoxication, the accused has the right to obtain a sobriety test 

independent of that offered by the arresting officer. See § 61-8-

405(2), MCA; State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155. 

 Undoubtedly, Beanblossom had the right to request and receive an 

independent blood test. He did not, however, request a blood test. 

 A violation of due process rights arises only when an accused has 

requested, but then is denied, an independent sobriety blood test. 

 

¶20 For the reasons discussed above, we affirm the District 

Court’s denial of Beanblossom’s motion to dismiss. 

/S/ W. WILLIAM LEAPHART 

We concur: 

/S/ KARLA M. GRAY 

/S/ PATRICIA COTTER 

/S/ JIM REGNIER 

/S/ JAMES C. NELSON 

/S/ JIM RICE 
9 

Justice Terry N. Trieweiler dissenting. 

¶21 I dissent from the majority Opinion. 

¶22 The language of § 61-8-402, MCA, is both clear and mandatory. 

 It provides, in relevant part: 

(1) A person who operates or is in actual physical 

control of a vehicle upon ways of this state open to the 

public is considered to have given consent to a test or 

tests of the person's blood or breath for the purpose of 

determining any measured amount or detected presence of 

alcohol or drugs in the person's body. 

(2) (a) The test or tests must be administered at the 

direction of a peace officer when: 

(i) the officer has reasonable grounds to believe that 

the person has been driving or has been in actual 

physical control of a vehicle upon ways of this state 

open to the public while under the influence of alcohol, 

. . . . 

¶23 When construing a statute, this Court's role is to simply 

ascertain and declare what is in terms or in substance contained 

therein, not to put its own result-oriented spin on otherwise clear 

language. See § 1-2-101, MCA. Every child understands the meaning 

of "must," however, if there's any question, Webster's Ninth New 

Collegiate Dictionary defines it in part as "b: be required by law, 

custom, or moral conscience . . . to be obliged to . . . ." 

¶24 In the past, we have held that when the state violates other 

testing requirements related to drivers suspected of driving under 

the influence of alcohol, the appropriate remedy is dismissal of 

the charges against the defendant. See State v. Minkoff, 2002 MT 

29, ¶ 24, 308 Mont. 248, ¶ 24, 42 P.3d 223, ¶ 24. In that case, we 

concluded that the investigating officer frustrated a DUI suspect's 

right pursuant to 61-8-405(2), MCA, to gather an independent blood 
10 

sample by warning the suspect that the sample would demonstrate a 

higher blood alcohol level than did the breath test administered by 

the investigating officer. If discouraging someone, while not 

prohibiting that person, from obtaining an independent blood test 

requires dismissal even though breathalyzer test results are 

already available, then it makes no sense to me why ignoring the 

plain and mandatory language requiring a test to measure the amount 

of alcohol in a person's body would not compel the same result. 

¶25 Had the majority chosen to affirm the District Court's finding 

that Beanblossom frustrated the investigating officer's efforts to 

administer a breathalyzer or blood test, that would make some 

sense. However, the majority has ignored that issue. In the 

process, the majority has also chosen to ignore the plain language 

of the statute in favor of its own result-oriented approach and has 

demonstrated a propensity to selectively and randomly enforce those 

statutes which pertain to the administration of tests to those 

people who are suspected of driving under the influence of alcohol. 

 The majority does so based on case law from other jurisdictions. 

However, when a statutory mandate is as clear as the language in § 

61-8-402(2), MCA, case law from other jurisdictions is irrelevant 

and unnecessary. 

¶26 The majority suggests in ¶ 16 that, "[T]he 'must' language of 

the statute refers to 'who' administers the test if, in the 

officer's discretion, a test is given. 'Must' does not refer to 

'whether' the test has to be administered." The majority's 

strained interpretation deserves high marks for creativity but low 
11 

marks for consistency, adherence to basic rules of grammar, or a 

willingness to enforce plain statutory language when doing so leads 

to an unpleasant result. 

¶27 For these reasons, I dissent from the majority Opinion. I 

would reverse the judgment of the District Court and order that the 

charges against Beanblossom be dismissed for failure of the 

investigating officer to follow the plain language of § 61-8-

402(2), MCA. 

/S/ TERRY N. TRIEWEILER