No. 96-081 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1996

STATEOFMONTANA,

Plaintiff andAppellant,

v. GREGORY

S. STUECK, Defendant andRespondent.

APPEALFROM: District Court of the Eighteenth Judicial District,

In andfor the County of Gallatin, TheHonorable ThomasA. Olson, Judge presiding.

COUNSELOFRECORD:

ForAppellant: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Ass't Attorney General, Helena, Montana Mike Salvagni, Gallatin County Attorney, JaneMersen, Deputy County Attorney, Bozeman, Montana For Respondent: Karl P. Seel, Attorney at Law, Bozeman, Montana

Filed: Submitted onBriefs: July 18, 1996 Decided: December 9, 1996Justice Karla M.Gray delivered the Opinion of the Court.

The State of Montana (State) appeals from the order of the Eighteenth Judicial District Court, Gallatin County, suppressing blood alcohol evidence obtained from Gregory S. Stueck (Greg). We affirm.Thedispositive issue onappeal is whether the District Court erred in concluding that Montana's implied consent statute applies to anegligent vehicular assault prosecution soasto preclude the admissibility of blood sample evidence forcibly drawn after Greg refused to submit to ablood alcohol test. Shortly before midnight onJanuary 19, 1995, Montana Highway Patrol Officer Joseph Campbell (Campbell) was traveling east on Interstate 90near Belgrade, Montana. Heobserved what appeared to bealarge cloud of either smokeor steamdeveloping approximately three-quarters of amile ahead of him in the westbound lanes of traffic. Asheapproached the scene, Campbell sawavehicle emerge from the cloud; the vehicle itself wastrailing ahuge cloud of steam and traveling west toward the Belgrade interchange. It appeared to Campbell that anaccident hadjust occurred. AsCampbell approached the accident site, he sawapickup truck in the median, amanstaggering near the pickup anddebris from the accident littering the median andthe highway. Thedazed man, Eric W.Troth (Troth), wasthe driver of the disabled pickup in the median; hehadsustained asubstantial bumponthe back of his head. Campbell theorized that the vehicle hehadseenemerge

2from the vaporous cloud was responsible for the accident.

Observing a "fluid trail" heading west on the highway from the point of impact, Campbell put Troth in his patrol car and they began following the fluid trail toward the Belgrade interchange. Campbell andTroth followed the fluid trail until it led them off the highway anddownseveral local roads; it then tapered off to apoint where Campbell wasunable to detect its direction. With

an injured man in his car and debris from the accident still littering the highway, Campbell decided that his best course of action wasto return with Troth to the accident scene. Hedid so and immediately began clearing the highway and investigating the accident. After awrecker arrived and lifted Troth's pickup, Campbell detected apowder blue paint transfer onTroth's darkcolored pickup which appeared to have been left by the vehicle responsible for the accident. Officer Dennis DeLaittre (DeLaittre) responded to the accident

scene five to ten minutes after Campbell and Troth's return. DeLaittre beganfollowing the fluid trail downandoff the highway and, eventually, to Amsterdam Road. DeLaittre could seewhere the vehicle leaving the fluid trail had made a right turn off of Amsterdam Road onto Thorpe Road. The fluid trail became more infrequent, often wasinthewrong lane andultimately consisted of

an accumulation of fluids deposited from the vehicle after it either hit a bump or braked for a corner. About that time, Campbell radioed DeLaittre that ababyblue paint transfer hadbeen found onTroth's pickup.

3DeLaittre continued downThorpe Road. Whenthe road surface

changed to gravel, hefollowed asingle set of tire tracks visible in the early morning frost to where avehicle appeared to have skidded on the roadway, backed up and pulled into a driveway. DeLaittre observed a "baby blue Ford pickup truck with extensive front-end damageonthe driver's side" in the driveway, andradioed Campbell that hehadlocated the vehicle. Campbell met DeLaittre at the driveway entrance to the residence on Thorpe Road where the baby blue Ford pickup was parked. Before approaching the house, the officers radioed the dispatch office for aregistration check onthe pickup. Dispatch called the registered owner, DonStueck, whoreported that his son Greg hadbeenusing the pickup; healso provided Greg's telephone number. The sheriff's office telephoned Greg's home in the early morning hours of January 20, 1995, andreached Greg's wife, Kristy Stueck (Kristy) Shewas asked to go outside to talk to two officers whowere parked in heryard. Kristy complied andCampbell andDeLaittre left their patrol cars andmether at the front door. After explaining to Kristy that an accident had occurred, the officers asked her if she had been driving or if Greg had been driving andif Greghadbeendrinking. Whensheanswered that Greg hadbeendriving the truck, they askedher to haveGregcometo the door. Kristy responded that hewassleeping andshewasunable to wakehim. Theofficers returned to their patrol cars and, after Kristy's second attempt to awaken him, Greg cameto the door.

4According to Campbell, Gregmotioned the officers to the houseand

eventually called them inside. Campbell could smell the strong odor of alcohol onGregat the outset of the interview andobserved that Greg started "fumbling andtrying to pull his boots onwhich took quite abit of effort and concentration

. . .'I Greg initially told Campbell and DeLaittre that his friend "Bill" hadbeendriving the pickup that night, but that hedid not knowBill's last name. Greg then left the house abruptly andwalked outside to the truck to find his registration andproof of insurance; the officers followed. After further questioning, Greg admitted that he had been driving the truck andhadfallen asleep at the wheel. Whenhefelt the impact of the accident, Greg panicked anddrove awayfrom the scene. Greg wasarrested for three misdemeanor traffic violations, including negligent vehicular assault, andtransported to Bozeman Deaconess Hospital. Theofficers did not advise Gregof the terms of the implied consent statute, but did request ablood sample to determine his blood alcohol content. WhenGreg refused to give a blood sample, it wastaken from himforcibly. TheState charged Greg in Gallatin County Justice Court with negligent vehicular assault, failure to stop at the scene of an injury accident andfailure to give immediate notice of aninjury accident. Gregmovedto suppress the evidence seized from his Ford pickup andhis residence, aswell as 'I[‘clheblood sample forcibly withdrawn

. .at BozemanDeaconess Hospital," andto dismiss the charges. Following ahearing, the Justice Court suppressed the

5evidence resulting from the forced blood drawing, but denied Greg's

motion to dismiss. TheState appealed, andGregcross-appealed, to the District Court. TheDistrict Court granted Greg's motion to suppress the blood sample evidence and denied the rest of his motions. TheState appeals from the District Court's suppression of the blood sample evidence. Did the District Court err in concluding that Montana's implied consent law applies to a negligent vehicular assault prosecution soasto preclude the admissibility of blood sample evidence forcibly drawn after Greg refused to submit to ablood alcohol test? In granting Greg's motion to suppress the blood sample evidence, the District Court rejected the State's contention that State v. Thompson (1984), 207Mont. 433, 674P.2d 1094, rendered §61-8-402, MCA, inapplicable to any offense other than driving under the influence of alcohol (DUI). The court distinguished Thomuson, concluding that § 61-8-402, MCA, Montana's implied consent statute, applies to the charge of negligent vehicular assault and, as a result, that the blood sample evidence is inadmissible because it was taken in violation of the statute. Whereadistrict court grants amotion to suppress based onlegal conclusions, wereview those conclusions to determine whether they

are correct. State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citation omitted). Webegin our analysis by focusing on § 61-8-402, MCA, Montana's implied consent statute. Section 61-8-402, MCA, provides, in pertinent part:

6(1) Aperson whooperates or is in actual physical

control of avehicle uponwaysof this state opento the public is considered to have given consent, subject to the provisions of 61-8-401, to atest or tests of the person's blood, breath, or urine for the purpose of determining anymeasured amount or detected presence of alcohol or drugs in the person's body if arrested bva peace officer for drivins orfor beinq in actual ohvsical control of a vehicle while under the influence of alcohol, drugs, or acombination of the two.

.

. (3) If a driver under arrest refuses upon the request of apeace officer to submit to atest or tests designated by the arresting officer as provided in subsection (l), atest maynot besiven, but the officer shall, onbehalf ofthe department, immediately seize the person's driver's license.

. . . [Emphasis added.] In interpreting a statute, we look first to the language used therein bythe legislature. State v. Gould (1995), 273Mont. 207, 219, 902P.2d 532, 540. "Wherethe language is plain, unambiguous, direct, andcertain, the statute speaks for itself

. .'I Gould, 902P.2d at 540 (citation omitted). According to the plain andunambiguous language used, §61-8- 402(l), MCA, applies when the defendant has been arrested for committing the DUIoffense set forth in §61-g-401, MCA. In such

anevent, adefendant's refusal to submit to ablood alcohol test mandates that the test "maynot begiven." Section 61-8-402(3), MCA. Moreover, blood samples drawn in violation of the implied consent statute are inadmissible asevidence in prosecutions for DUI. Thompson, 674P.2d at 1095 (citing State v. Mangels (1975), 166Mont. 190, 531P.2d 1313). Here, Gregwasnot arrested for violating §61-8-401, MCA,the statute defining the offense of DUI. Hewasarrested, however, for

7committing the misdemeanor offense of negligent vehicular assault

in violation of §45-5-205, MCA. Aperson commits that offense if heor she (1) operates avehicle in anegligent manner; and (2) is driving while under the influence of alcohol ordrugs, "asprovided for in 61-8-401(l) [;I" and (3) his or her conduct is the cause of bodily injury to another. Section 45-5-205(l), MCA. Thus, the DUI offense set forth in §61-L-401, MCA,is aspecific element of--and subsumedin--the negligent vehicular assault offense. Asaresult, it is clear that, in the language of §61-8-402(l), MCA,Greg was "arrested by apeace officer for driving or for being in actual physical control of avehicle while under the influence of alcohol

I,

. . Consequently, we conclude that § 61-8-402(3), MCA, prohibited the State from forcibly giving the blood test after Greg refused to submit to it and the blood sample evidence drawn in violation of the statute is inadmissible. Thomoson, 674 P.2d at 1095.TheState correctly points out that, in Thomuson, weheld § 61-8-402, MCA,inapplicable to anegligent homicide prosecution. It contends, therefore, that Thompson renders § 61-E-402, MCA, inapplicable to the negligent vehicular assault charge at issue here anddoes not preclude the admissibility of the blood sample taken without Greg's consent. The State reads Thomoson too broadly. In Thomuson, the defendant was charged with negligent homicide, which is statutorily defined asnegligently causing the death of another humanbeing. Section 45-5-104, MCA. Hedid not

8consent to the taking of ablood samplefor purposes of determining

the alcohol content in his blood; nonetheless, the sample was taken. Thedefendant movedfor suppression of the blood sample on the basis that it hadbeendrawn against his will in violation of 561-8-402, MCA,and, therefore, was inadmissible. Thedistrict court refused to suppress the evidence, it wasadmitted at trial andthe defendant wasconvicted of negligent homicide. Thomoson, 674P.2d at 1095. Theissue before usonappeal waswhether the prohibition against nonconsensual extractions of blood samples in §61-8-402, MCA,applied to prosecutions for negligent homicide. If the prohibition applied, the blood sample drawn inviolation of the statute was inadmissible and should have been suppressed. Thomoson, 674P.2d at 1095. Weultimately concluded, based onthree considerations, that §61-g-402, MCA,did not apply to negligent homicide convictions. Thornson, 674 P.2d at 1096. First, and most importantly, we focused onthe legislative intent asreflected in the language of the statute. Highlighting the "if arrested byapeaceofficer for DUI" language, weconcluded that the protections afforded bythe § 61-E-402, MCA,prohibition against nonconsensual blood drawings are "not engaged until there is an arrest for driving under the influence." Thomuson, 674 P.2d at 1096. Next, we reviewed decisions from other jurisdictions having implied consent laws similar to Montana's anddetermined that "the better reasoned cases hold that the statute doesnot apply to negligent homicide cases." Thompson, 674 P.2d at 1096-97 (citations omitted). Finally, we

9addressed the gravity of the charged offense andopined that, where

adeath hadbeen caused byadrinking driver, adriver's license suspension wasaninsufficient penalty for refusing to submit to a chemical analysis. Thomuson, 674P.2d at 1097. Applying the three Thomuson considerations to this case involving anarrest for negligent vehicular assault, rather than negligent homicide, mandates a different result and clearly indicates that Thompson is distinguishable. There, webegan by applying the plain meaning of the "arrest for DUI" language in 5 61-8-402, MCA, to the negligent homicide charge at issue. Thomoson, 674 P.2d at 1095-96. As noted above, the offense of negligent homicide is defined asnegligently causing the death of another human being. See § 45-5-104, MCA. Nothin~g in that definition relates in anywayto operating avehicle while under the influence of alcohol. Accordingly, weproperly concluded in Thomoson that the legislature did not intend the protections afforded by §61-8-402, MCA,to apply to anarrest for negligent homicide because the statutory language was inapplicable "until there is anarrest for driving under the influence." Thompson, 674 P.2d at 1096. Here, asdiscussed above, the negligent vehicular assault charge includes, asaspecific element, driving while under the influence of alcohol asset forth in 561-a-401, MCA. See§ 45-5-205(l), MCA. Thushere, unlike inThomuson, there hasbeenan arrest for DUIandthe protections afforded by561-8-402, MCA,are engaged. Having concluded, under the statutory interpretation

10consideration which necessarily was our primary concern in

Thomoson, that §61-8-402, MCA,applies to anarrest for negligent vehicular assault, the remaining Thomosoncriteria are of limited significance. With regard to the "other jurisdictions" consideration from Thompson, the State cites to State V. Woolery (Idaho 1989), 775P.2d 1210, andState v. Armenta (Or.App. 1985), 702P.2d 1113, in support of its position that §61-8-402, MCA,is not applicable to non-DUI offenses. Those cases are readily distinguishable from the case presently before usand, therefore, they donot support the State's position here. In Woolerv, the Idaho SupremeCourt's primary focus wasnot whether the statute applied to the offense charged. Rather, the Idaho court focused on the absence of any statutory language prohibiting anonconsensual blood test in the event a requested test wasrefused. Woolerv, 775P.2dat 1214. Thecourt ultimately determined that nostatutory right to refuse hadbeencreated and, therefore, compliance--or lack thereof--with the implied consent statute was irrelevant to the admissibility of the blood test evidence so long as the constitutional requisites for a lawful search and seizure were met. Woolerv, 775 P.2d at 1214-15. Woolery hasnoapplication here where§61-8-402(3), MCA,expressly provides that atest maynot begiven if it hasbeen refused and,

asaresult, our cases hold that anonconsensual drawing of blood following a561-8-402, MCA,refusal to submit to the test renders the blood test evidence inadmissible. See, e.q., Thomuson, 674 P.2d at 1095.

11InArmenta, the defendant wascharged with DUIandassault II

following anaccident which resulted in injuries. Armenta, 702 P.2d at 1113. Thetrial court suppressed blood test evidence in connection with both charges asaconsequence of aninvalid consent under the implied consent statute, andthe state appealed only the inadmissibility of the evidence vis-a-vis the assault charge. Annenta, 702P.2dat 1114. TheOregonCourt ofAppeals applied the statutory language specifically rendering the statute inapplicable to non-DUI offenses, and concluded that the blood test was admissible as to the assault charge assuming compliance with constitutional requirements. Armenta, 702 P.2d at 1114. Thus Armenta, like Thomoson, limited the applicability of the implied consent statute to a DUI charge. Like Thomuson, and for the

reasons set forth above, Armenta is distinguishable from the present case involving an arrest for the offense of negligent vehicular assault, which includes DUI asaspecific element, and which, therefore, constitutes anarrest for DUIpursuant to §61-8- 402(l), MCA. The final Thomuson consideration was the gravity of the charged offense andweobserved, inthat regard, that the negligent homicide offense at issue involved the death of ahumanbeing. Thompson, 674P.2d at 1097. Indeed, negligent homicide is afelony offense punishable by imprisonment in the state prison for upto ten years and a fine of up to $50,000, or both. & §§45-2- lOl(22) and455-104(3), MCA. In the case presently before us, however, negligent vehicular assault is amisdemeanor offense with

12maximumpunishments of oneyear imprisonment in the county jail and

afine of $1,000, or both. & §§45-2-lOl(41) and45-5-205(2), MCA. Thus, while weagree with the State that this consideration is of very limited significance in light of the paramount importance of statutory interpretation in this case, its application here further distinguishes Thomusonandweighs in favor of our conclusion that 561-E-402, MCA,applies to anarrest for negligent vehicular assault. Wehold that the District Court did not err in concluding that § 61-S-402, MCA, applies to a negligent vehicular assault prosecution soas to preclude the admissibility of blood sample evidence drawn inviolation of the statute andalso did not err in suppressing that evidence. Affirmed.

Weconcur:

Chief Justice

Justices

13Justice Karla M.Gray, specially concurring.

While the Court's opinion adequately addresses the matters raised in Justice Erdmann's dissenting opinion, Iwrite separately to addadditional commentsabout several of the arguments contained therein. First, the dissent states that the Court cites nocases which support its position. In this regard, I observe only that it is not necessary for this Court to cite "other jurisdiction" cases in support of astraightforward analysis of Montana statutes andcase law such asthe Court hasconducted here. Next, the dissent quotes from Zielke, aWisconsin case relied

on by the State in addition to the Armenta and Woolerv cases discussed in the Court's opinion. TheWisconsin implied consent statute at issue in Zielke, however--like the Idaho implied consent statute at issue in Woolerv--did not contain language prohibiting

a nonconsensual blood test in the event a requested test was refused. See Zielke, 403 N.W.2d at 429. Thus, like Woolerv, Zielke is not applicable here where 561-8-402(3), MCA,expressly provides that atest "maynot begiven" onceit hasbeenrefused by the arrestee. Asdiscussed in the Court's opinion, it is this specific portion of Montana's implied consent statute which renders inadmissible evidence resulting from anonconsensual drawing of blood following a561-8-402, MCA,refusal to submit to the test and which negates the propriety of addressing the issue of the constitutionality of the seizure of Greg's blood which the dissent

14would reach in this case.

Finally, while I donot disagree that the Court's resolution of this case mayappear to allow defendants in alcohol or drugrelated accidents to usethe implied consent statute asa"shield," I disagree with the dissent's view that this Court can simply ignore the statutory language in order to produce apolitically expedient result. TheState's "remedy" lies with the legislature, which is free to amendthe implied consent statute asother state legislatures have done, not with this Court. ,-~,

15Justice Charles E. Erdmann dissenting.

Irespectfully dissent from the majority's conclusion that the implied consent law, § 61-E-402, MCA, apples to a negligent vehicular assault prosecution. The majority's opinion allows the implied consent law to beused asashield by defendants in alcohol

Or drug-related accidents and allows them to prevent the introduction of otherwise admissible evidence of chemical impairment. Further, although not reached bythe majority, Iwould conclude that a warrantless search was appropriate under these circumstances and that the seizure of blood did not violate Greg Stueck's right of privacy. I would reverse the District Court on all three of these issues and remand the matter for trial. The District Court granted Greg's motion to suppress the blood sample evidence byfinding that State v. Thompson (1984), 207Mont. 433, 674 P.2d 1094, does not apply when a charge of negligent vehicular assault is brought. In Thompson, this Court held that the implied consent law did not apply to a negligent homicide charge. In reaching that conclusion, the Court first reviewed the language of the implied consent law, andthen employed athree-step analysis to determine whether that law should apply to charges other than DUI. Given the clear language of 5 61-E-402, MCA, it is questionable whether the analysis need go any further than a reading of the statute. This basic statutory construction analysis

I.6is the first of the Thomnson criteria. Section 61-E-402, MCA,

provides in pertinent part: (1) A person who operates or is in actual physical control of avehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person's blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body if arrested by a peace officer for driving or for beinq in actual physical control of a vehicle while under the influence of alcohol, drugs, or acombination of the two. (Emphasis added.) Section 61-e-401, MCA, referenced in the implied consent statute, is the statute that prohibits DUI. By the clear language of the statute itself, it is applicable only to cases involving anarrest for DUI. As this Court recently noted in State

v. Gould (1995), 273 Mont. 207, 902 P.2d 532:

In interpreting a statute, we first look to the plain meaning of its words. Christensen, 877 P.2d at 469 (citation omitted). If the legislative intent can be ascertained from the plain meaning of the words used, no further interpretation is required andwewill not resort to legislative history. Clarkev.Massey (1995), 1271Mont. 4121, 897 P.Zd 1085, 1088. Where the language is plain, unambiguous, direct, and certain, the statute speaks for itself and there is noneed to resort to extrinsic means of interpretation. Christensen, 877 P.2d at 469 (citation omitted). In addition, [i]n the construction of astatute, the office of the judge is simply to ascertain anddeclare what is in terms or in substance contained therein, not to insert what has been omitted

. Section l-2-101, MCA. Gould, 902 P.Zd at 540. As correctly recognized by the majority, the plain, unambiguous language of 5 61-E-402, MCA, makes the statute

17applicable only where there has been an arrest for DUI. As Greg

was not arrested for DUI, the only logical conclusion is that the implied consent statute does not apply. The majority, however, holds that § 61-E-402, MCA, applies to a charge of negligent vehicular assault, and in doing so, concludes that an arrest for negligent vehicular homicide constitutes an arrest for DUI. While the majority is correct in noting that driving under the influence of alcohol or drugs is one of the elements of the negligent homicide statute, that does not make an arrest for negligent vehicular assault an arrest for DUI. The Legislature could easily have extended the provisions of the implied consent statute to both vehicular homicide andnegligent vehicular assault, but has chosen not to do so. In concluding that an arrest for negligent vehicular assault constitutes an arrest for DUI, the majority has inserted provisions into §61-B-402, MCA, that were omitted by the Legislature. That is not the proper function of this Court. As noted, the first of the Thomuson criteria deals with legislative intent andstatutory interpretation, which is discussed above. As the plain language of the statute is clear, I do not believe that further analysis is necessary. However, even if the second and third Thompson criteria are utilized, the result is the

same.In Thompson, this Court stated:

We find that Section 61-E-402 does not apply to negligent homicide prosecutions. This conclusion is 18based on three considerations. First we consider the

legislative intent. "Legislative intent must first be determined from the plain meaning of the words used; and if the language is plain, unambiguous, direct, and certain, the statute speaks for itself." Gistv.Segna (Mont. 1981), 622 P.Zd 1028 at 1029, 38 St.Rep. 150 at 152, citing Dunphyv.AnacondaCo. (1968), 151 Mont. 76, 438 P.2d 660. The language of the statute and anexamination of the statutory scheme of Title 61, Chapter 8, part 4 plainly show that application of the implied consent law to negligent homicide cases was not within the legislature's contemplation. The operative language of Section 61-E-402 reads, "Any person whooperates amotor vehicle upon the public highways of this state shall be deemed to have given consent, subjecttotheprovisions 

### of61-8-401,to a chemical test of his blood, breath, or urine for the purpose of determining the alcohol content of his blood if awesledbyapeaceofJicer fordrivingOY

inactualphysicalcontrolof nmotorvehiclewhileundertheinfruenceofalcohol.II(emphasis supplied) The italicized passage above makes it clear that the protections afforded there are not engaged until there is an arrest for driving under the influence. (But, see Statev.Campbell (Mont. 1980) ,615 P.2d 190, 37St.Rep. 1337, where weheld that anarrest is not always aprerequisite to administration of ablood alcohol test.) Not only is the section specifically premised onsuch anarrest, but it is made subject to the section of the code which outlines the offense of driving under the influence of alcohol or drugs.

. . This Court does not have the power to remove or ignore language in astatute. The second consideration is how similar implied consent laws have been interpreted other jurisdictions.

. . [Wle feel the better reaszed cases hold that the statute does not apply to negligent homicide cases. Relying on the plain wording of the statute, these cases held that applying the implied consent laws to negligent homicide prosecutions was not what the legislature had intended. The third consideration also weighed heavily onthe courts deciding the cases cited immediately above; suspension of the driver's license is simply an insufficient penalty for refusing to submit to achemical 19analysis when there has been a death caused by the

drinking driver. The gravity of the crime heightens the importance of the blood sample, and it appears the legislature felt the administrative remedy was simply inappropriate. The decision to modify the scope of the implied consent law properly rests within the legislature's power. It is not within our power to read into a statute more than is found there, as appellant would have us do. Therefore, we hold that Section 61-8-402 does not apply to suspects in negligent homicide prosecutions. Thompson, 674 P.2d at 1096-97 (citations omitted). The Court's discussion of the first Thompson criteria provides additional support for the conclusion that the Legislature did not intend the implied consent law to apply to charges other than DUI. The protection afforded by the implied consent law simply is not triggered until there has been an arrest for DLJI. In this case, there was no arrest for DUI. After reaching its conclusion that the Legislature intended that an arrest for negligent vehicular assault constitutes an arrest for DUI, the majority then determines that the remaining two Thompson criteria are of limited significance. This is not surprising since, after attempting to distinguish the cases from other jurisdictions which support the State's position, the majority can cite no cases which support its position. State v. Woolery (Idaho 19891, 775 P.2d 1210; State v. Armenta (Or. Ct. App. 1985), 702 P.2d 1113; State v. Zielke (Wis. 1987), 403 N.W.2d 427. The third Thompson criteria addresses the gravity of the crime. The majority notes that vehicular homicide involves the death of an individual and is afelony, while negligent vehicular

20assault is merely a misdemeanor. While conceding that this

criteria is of very limited significance, the majority relies onit for further support of its conclusion that 561-8-402, MCA, applies to an arrest for negligent vehicular assault. The Thomuson case did not make any distinction between felonies and misdemeanors and that is atroublesome distinction to create. Further, it cannot bedisputed that negligent vehicular assault is aserious crime for which the mere sanction of having alicense temporarily suspended is an insufficient penalty. The negligent vehicular assault statute requires that a person: (1) operate a vehicle in a negligent~ manner; (2) while driving under the influence of alcohol or drugs; and that (3) his

or her conduct is the cause of bodily injury to another. Section 45-5-205, MCA. Under the majority's rationale, if the victim in this case would have died, the implied consent law would not have applied, but if the victim were only injured, seriously or otherwise, it would apply. Such ajudicially created distinction is not warranted and places an unreasonable burden on law enforcement officers whoinvestigate accidents involving alcohol or drugs.Whether applying the basic rules of statutory interpretation,

or utilizing the Thompson criteria, it is clear that the Legislature did not intend that an individual involved in an alcohol or drug-related traffic accident beable to use the implied consent law as ashield to prevent evidence of chemical impairment

21to be introduced at trial. As noted by the Wisconsin Court in

Zielke: The implied consent law is an important weapon in the battle against drunk driving in this State. Neither the law, its history or commonsense allows this court to countenance its use asashield by the defense to prevent constitutionally obtained evidence frombeing admitted at trial. Zielke, 403 N.W.Zd at 434. While not addressed by the majority, Iwould conclude that the seizure of blood in this case was areasonable seizure and did not violate Greg's privacy interests. Bythe time the officers reached Greg's residence, approximately one hour and twenty-five minutes had passed since the accident. The additional time in obtaining a search warrant in the middle of the night would have resulted in further dissipation of Greg's blood alcohol content and the loss of valuable evidence. Themeans andprocedures employed in taking the blood were reasonable. Schmerber v. California (1966), 384 U.S. 757. While this Court has recognized that Montana has abroad right of privacy in Article II, Section 10, of the Montana Constitution, the right of privacy contained in that provision is to be weighed against any applicable state interest. State v. Brown (1988), 232 Mont. 1, 755 P.2d 1364; State ex rel. Zander v. District Court (1979), 180Mont. 548, 591 P.2d 656. Here, the State's interest is to enforce the criminal and traffic laws which protect all citizens, and specifically in this case, to apprehend and appropriately punish the person who rear-ended the Troth vehicle
22and then left the scene of an injury accident. I would find these

interests to be compelling and outweigh Greg's right of privacy associated with his blood. For the foregoing reasons I would reverse the District Court and remand this matter for trial.

Justice

23Chief Justice J. A. Turnage, dissenting:

I concur with the dissenting opinion of Justice Erdmann. I write further and in addition thereto. The correct decision in this case requires an analysis of three separate statutes. The majority has failed to analyze correctly these operative statutes which are in their essential parts set forth as follows:

61-s-401. (1) It is unlawful and punishable as provided in 61-S-714 and 61-f-723 [penalty for driving under the influence of alcohol] for any person who is under the influence of: (a) alcohol to drive or be in actual physical control of avehicle upon the ways of this state open to the public; i3i '"Under the influence" means that asaresult of taking into the body alcohol, drugs, or any combination thereof, aperson's ability to safely operate a motor vehicle has been diminished. (4) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time alleged, as shown by analysis of the person's blood, urine, or breath, shall give rise to the following inferences: (a) If there wasat that time analcohol concentration of 0.05 or less, it may be inferred that the person was not under the influence of alcohol. (b) If there wasat that time an alcohol concentration in excess of 0.05 but less than 0.10, that fact shall not give rise to any inference that the person was or was not under the influence of alcohol but such fact may be considered with other competent evidence in determining the guilt or innocence of the person. (c) If there wasat that time analcohol concentration of 0.10 or more, it maybe inferred that the person was under the influence of alcohol. The inference is rebuttable. (5) The provisions of subsection (4) do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol, drugs, or acombination of the two.

2461-8-402. (1) Aperson whooperates or is in actual

physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to atest or tests of the person's blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body if arrested bv peace officer for drivinq avehicle while under the influence of alcohol[.] [Emphasis added.]

45-5-205. (1) If aperson operates amotor vehicle in anegligent manner and he is drivinq while under the influence of alcohol

. as provided for in 61-8- 401(I), and his conduct is the cause of bodily injury to another, he commits the offense of negligent vehicular assault. [Emphasis added.] I emphasize the fact that defendant Greg Stueck was not arrested for the offense of driving while under the influence of alcohol. The District Court erroneously concluded that, because the negligent vehicular assault statute requires that the accused must be operating a motor vehicle in a negligent manner and driving while under the influence of alcohol, the statute necessarily requires compliance with § 61-8-402, MCA, the so-called implied consent statute. The majority of this Court also engages in that

erroneous analysis. Both the District Court and the majority of this Court have engaged in faulty logic. Section 61-8-402, MCA, the implied consent statute, applies only if the accused is arrested by apeace officer for driving a vehicle while under the influence of alcohol. This is clearly not the fact in the present case. Stueck was not arrested for driving under the influence of alcohol. The inferences relating to alcohol concentration in aperson's body as set forth in 5 61-8-401, MCA, are rebuttable inferences

25only and, as in that section provided, proof of such alcohol

concentration is not the only method by which a conviction for operating amotor vehicle while under the influence of alcohol can be obtained. Any other competent evidence bearing on that issue maybe introduced and may result in aconviction. State v. Thompson (1984), 207 Mont. 433, 674 P.2d 1094, is clearly on point in this case, and the efforts of the majority to distinguish Thompson are misplaced. The operative facts in Thompson are virtually identical to the facts of this case. The fact that Thompson's drunken driving resulted in ahomicide cannot be legally distinguished from the facts in this case. Stueck's driving may well have resulted in ahomicide instead of abodily injury to Mr. Troth. The legal principles set forth in Thompson

are applicable here. I would reverse the decision of the District Court.



# /J<&

Chief Justice

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