No. 96-081 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Appellant, 

v. 

GREGORY S. STUECK, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Joseph P. Mazurek, Attorney General, 

Barbara C. Harris, Ass't Attorney General, 

Helena, Montana 

Mike Salvagni, Gallatin County Attorney, 

Jane Mersen, Deputy County Attorney, 

Bozeman, Montana 

For Respondent: 

Karl P. Seel, Attorney at Law, Bozeman, Montana 

Filed: 

Submitted on Briefs: July 18, 1996 

Decided: December 9, 1996 
Justice 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. 

The dispositive issue on appeal is whether the District Court 

erred in concluding that Montana's implied consent statute applies 

to a negligent vehicular assault prosecution so as to preclude the 

admissibility of blood sample evidence forcibly drawn after Greg 

refused to submit to a blood alcohol test. 

Shortly before midnight on January 19, 1995, Montana Highway 

Patrol Officer Joseph Campbell (Campbell) was traveling east on 

Interstate 90 near Belgrade, Montana. He observed what appeared to 

be a large cloud of either smoke or steam developing approximately 

three-quarters of a mile ahead of him in the westbound lanes of 

traffic. As he approached the scene, Campbell saw a vehicle emerge 

from the cloud; the vehicle itself was trailing a huge cloud of 

steam and traveling west toward the Belgrade interchange. It 

appeared to Campbell that an accident had just occurred. 

As Campbell approached the accident site, he saw a pickup 

truck in the median, a man staggering near the pickup and debris 

from the accident littering the median and the highway. The dazed 

man, Eric W. Troth (Troth), was the driver of the disabled pickup 

in the median; he had sustained a substantial bump on the back of 

his head. Campbell theorized that the vehicle he had seen emerge 

2 
from 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 and Troth followed the fluid trail until it led them 

off the highway and down several local roads; it then tapered off 

to a point where Campbell was unable 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 was to return with Troth to the accident scene. He did so 

and immediately began clearing the highway and investigating the 

accident. After a wrecker arrived and lifted Troth's pickup, 

Campbell detected a powder blue paint transfer on Troth'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 began following the fluid trail down and off the highway 

and, eventually, to Amsterdam Road. DeLaittre could see where 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 was in the wrong lane and ultimately 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 a baby blue paint transfer had been 

found on Troth's pickup. 

3 
DeLaittre continued down Thorpe Road. When the road surface 

changed to gravel, he followed a single set of tire tracks visible 

in the early morning frost to where a vehicle 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 damage on the driver's side" in the driveway, and radioed 

Campbell that he had located 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 a registration check on the pickup. Dispatch 

called the registered owner, Don Stueck, who reported that his son 

Greg had been using the pickup; he also provided Greg's telephone 

number. 

The sheriff's office telephoned Greg's home in the early 

morning hours of January 20, 1995, and reached Greg's wife, Kristy 

Stueck (Kristy) She was asked to go outside to talk to two 

officers who were parked in her yard. Kristy complied and Campbell 

and DeLaittre left their patrol cars and met her 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 and if Greg had been drinking. When she answered that Greg 

had been driving the truck, they asked her to have Greg come to the 

door. Kristy responded that he was sleeping and she was unable to 

wake him. The officers returned to their patrol cars and, after 

Kristy's second attempt to awaken him, Greg came to the door. 

4 
According to Campbell, Greg motioned the officers to the house and 

eventually called them inside. 

Campbell could smell the strong odor of alcohol on Greg at the 

outset of the interview and observed that Greg started "fumbling 

and trying to pull his boots on which took quite a bit of effort 

and concentration . . .'I Greg initially told Campbell and 

DeLaittre that his friend "Bill" had been driving the pickup that 

night, but that he did not know Bill's last name. Greg then left 

the house abruptly and walked outside to the truck to find his 

registration and proof of insurance; the officers followed. After 

further questioning, Greg admitted that he had been driving the 

truck and had fallen asleep at the wheel. When he felt the impact 

of the accident, Greg panicked and drove away from the scene. 

Greg was arrested for three misdemeanor traffic violations, 

including negligent vehicular assault, and transported to Bozeman 

Deaconess Hospital. The officers did not advise Greg of the terms 

of the implied consent statute, but did request a blood sample to 

determine his blood alcohol content. When Greg refused to give a 

blood sample, it was taken from him forcibly. 

The State charged Greg in Gallatin County Justice Court with 

negligent vehicular assault, failure to stop at the scene of an 

injury accident and failure to give immediate notice of an injury 

accident. Greg moved to suppress the evidence seized from his Ford 

pickup and his residence, as well as 'I [‘cl he blood sample forcibly 

withdrawn . . at Bozeman Deaconess Hospital," and to dismiss the 

charges. Following a hearing, the Justice Court suppressed the 

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

motion to dismiss. The State appealed, and Greg cross-appealed, to 

the District Court. 

The District Court granted Greg's motion to suppress the blood 

sample evidence and denied the rest of his motions. The State 

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 so as to preclude the admissibility 

of blood sample evidence forcibly drawn after Greg 

refused to submit to a blood 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), 207 Mont. 433, 674 P.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. 

Where a district court grants a motion to suppress based on legal 

conclusions, we review those conclusions to determine whether they 

are correct. State v. Williams (1995), 273 Mont. 459, 462, 904 

P.2d 1019, 1021 (citation omitted). 

We begin 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) 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, 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 bv a 

peace officer for drivins or for beinq in actual ohvsical 

control of a vehicle while under the influence of 

alcohol, drugs, or a combination of the two. . 

. 

(3) If a driver under arrest refuses upon the 

request of a peace officer to submit to a test or tests 

designated by the arresting officer as provided in 

subsection (l), a test may not be siven, but the officer 

shall, on behalf of the department, immediately seize the 

person's driver's license. . . . [Emphasis added.] 

In interpreting a statute, we look first to the language used 

therein by the legislature. State v. Gould (1995), 273 Mont. 207, 

219, 902 P.2d 532, 540. "Where the language is plain, unambiguous, 

direct, and certain, the statute speaks for itself . .'I Gould, 

902 P.2d at 540 (citation omitted). 

According to the plain and unambiguous language used, § 61-8- 

402(l), MCA, applies when the defendant has been arrested for 

committing the DUI offense set forth in § 61-g-401, MCA. In such 

an event, a defendant's refusal to submit to a blood alcohol test 

mandates that the test "may not be given." Section 61-8-402(3), 

MCA. Moreover, blood samples drawn in violation of the implied 

consent statute are inadmissible as evidence in prosecutions for 

DUI. Thompson, 674 P.2d at 1095 (citing State v. Mangels (1975), 

166 Mont. 190, 531 P.2d 1313). 

Here, Greg was not arrested for violating § 61-8-401, MCA, the 

statute defining the offense of DUI. He was arrested, however, for 

7 
committing the misdemeanor offense of negligent vehicular assault 

in violation of § 45-5-205, MCA. A person commits that offense if 

he or she (1) operates a vehicle in a negligent manner; and (2) is 

driving while under the influence of alcohol or drugs, "as provided 

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 a specific element of--and 

subsumed in--the negligent vehicular assault offense. As a result, 

it is clear that, in the language of § 61-8-402(l), MCA, Greg was 

"arrested by a peace officer for driving or for being in actual 

physical control of a vehicle 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. 

The State correctly points out that, in Thomuson, we held § 

61-8-402, MCA, inapplicable to a negligent homicide prosecution. 

It contends, therefore, that Thompson renders § 61-E-402, MCA, 

inapplicable to the negligent vehicular assault charge at issue 

here and does 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 as negligently causing the 

death of another human being. Section 45-5-104, MCA. He did not 

8 
consent to the taking of a blood sample for purposes of determining 

the alcohol content in his blood; nonetheless, the sample was 

taken. The defendant moved for suppression of the blood sample on 

the basis that it had been drawn against his will in violation of 

5 61-8-402, MCA, and, therefore, was inadmissible. The district 

court refused to suppress the evidence, it was admitted at trial 

and the defendant was convicted of negligent homicide. Thomoson, 

674 P.2d at 1095. The issue before us on appeal was whether 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 in violation of 

the statute was inadmissible and should have been suppressed. 

Thomoson, 674 P.2d at 1095. 

We ultimately concluded, based on three 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 on the legislative intent as reflected in the language of 

the statute. Highlighting the "if arrested by a peace officer for 

DUI" language, we concluded that the protections afforded by the § 

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 and determined that "the better reasoned cases 

hold that the statute does not apply to negligent homicide cases." 

Thompson, 674 P.2d at 1096-97 (citations omitted). Finally, we 

9 
addressed the gravity of the charged offense and opined that, where 

a death had been caused by a drinking driver, a driver's license 

suspension was an insufficient penalty for refusing to submit to a 

chemical analysis. Thomuson, 674 P.2d at 1097. 

Applying the three Thomuson considerations to this case 

involving an arrest for negligent vehicular assault, rather than 

negligent homicide, mandates a different result and clearly 

indicates that Thompson is distinguishable. There, we began 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 as negligently causing the death of 

another human being. See § 45-5-104, MCA. Nothin~g in that 

definition relates in any way to operating a vehicle while under 

the influence of alcohol. Accordingly, we properly concluded in 

Thomoson that the legislature did not intend the protections 

afforded by § 61-8-402, MCA, to apply to an arrest for negligent 

homicide because the statutory language was inapplicable "until 

there is an arrest for driving under the influence." Thompson, 674 

P.2d at 1096. Here, as discussed above, the negligent vehicular 

assault charge includes, as a specific element, driving while under 

the influence of alcohol as set forth in 5 61-a-401, MCA. See§ 

45-5-205(l), MCA. Thus here, unlike in Thomuson, there has been an 

arrest for DUI and the protections afforded by 5 61-8-402, MCA, are 

engaged. 

Having concluded, under the statutory interpretation 

10 
consideration which necessarily was our primary concern in 

Thomoson, that § 61-8-402, MCA, applies to an arrest for negligent 

vehicular assault, the remaining Thomoson criteria are of limited 

significance. With regard to the "other jurisdictions" 

consideration from Thompson, the State cites to State V. Woolery 

(Idaho 1989), 775 P.2d 1210, and State v. Armenta (Or.App. 1985), 

702 P.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 us and, therefore, 

they do not support the State's position here. 

In Woolerv, the Idaho Supreme Court's primary focus was not 

whether the statute applied to the offense charged. Rather, the 

Idaho court focused on the absence of any statutory language 

prohibiting a nonconsensual blood test in the event a requested 

test was refused. Woolerv, 775 P.2d at 1214. The court ultimately 

determined that no statutory right to refuse had been created 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 has no application here where § 61-8-402(3), MCA, expressly 

provides that a test may not be given if it has been refused and, 

as a result, our cases hold that a nonconsensual drawing of blood 

following a 5 61-8-402, MCA, refusal to submit to the test renders 

the blood test evidence inadmissible. See, e.q., Thomuson, 674 

P.2d at 1095. 

11 
In Armenta, the defendant was charged with DUI and assault II 

following an accident which resulted in injuries. Armenta, 702 

P.2d at 1113. The trial court suppressed blood test evidence in 

connection with both charges as a consequence of an invalid consent 

under the implied consent statute, and the state appealed only the 

inadmissibility of the evidence vis-a-vis the assault charge. 

Annenta, 702 P.2d at 1114. The Oregon Court of Appeals 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 as a specific element, and 

which, therefore, constitutes an arrest for DUI pursuant to § 61-8- 

402(l), MCA. 

The final Thomuson consideration was the gravity of the 

charged offense and we observed, in that regard, that the negligent 

homicide offense at issue involved the death of a human being. 

Thompson, 674 P.2d at 1097. Indeed, negligent homicide is a felony 

offense punishable by imprisonment in the state prison for up to 

ten years and a fine of up to $50,000, or both. & §§ 45-2- 

lOl(22) and 455-104(3), MCA. In the case presently before us, 

however, negligent vehicular assault is a misdemeanor offense with 

12 
maximum punishments of one year imprisonment in the county jail and 

a fine of $1,000, or both. & §§ 45-2-lOl(41) and 45-5-205(2), 

MCA. Thus, while we agree 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 Thomuson and weighs in favor 

of our conclusion that 5 61-E-402, MCA, applies to an arrest for 

negligent vehicular assault. 

We hold that the District Court did not err in concluding that 

§ 61-S-402, MCA, applies to a negligent vehicular assault 

prosecution so as to preclude the admissibility of blood sample 

evidence drawn in violation of the statute and also did not err in 

suppressing that evidence. 

Affirmed. 

We concur: 

Chief Justice 

Justices 

13 
Justice Karla M. Gray, specially concurring. 

While the Court's opinion adequately addresses the matters 

raised in Justice Erdmann's dissenting opinion, I write separately 

to add additional comments about several of the arguments contained 

therein. 

First, the dissent states that the Court cites no cases 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 a straightforward analysis of Montana statutes and case 

law such as the Court has conducted here. 

Next, the dissent quotes from Zielke, a Wisconsin case relied 

on by the State in addition to the Armenta and Woolerv cases 

discussed in the Court's opinion. The Wisconsin 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 5 61-8-402(3), MCA, expressly 

provides that a test "may not be given" once it has been refused by 

the arrestee. As discussed in the Court's opinion, it is this 

specific portion of Montana's implied consent statute which renders 

inadmissible evidence resulting from a nonconsensual drawing of 

blood following a 5 61-8-402, 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 

14 
would reach in this case. 

Finally, while I do not disagree that the Court's resolution 

of this case may appear to allow defendants in alcohol or drugrelated accidents to use the implied consent statute as a "shield," 

I disagree with the dissent's view that this Court can simply 

ignore the statutory language in order to produce a politically 

expedient result. The State's "remedy" lies with the legislature, 

which is free to amend the implied consent statute as other state 

legislatures have done, not with this Court. ,-~, 

15 
Justice Charles E. Erdmann dissenting. 

I respectfully 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 be used as a shield 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 by the majority, I would 

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 by finding that State v. Thompson (1984), 207 Mont. 

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, and then employed a three-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.6 
is 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 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 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 a combination 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 an arrest 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 and we will not resort 

to legislative history. Clarke v.Massey (1995), 1271 Mont. 

4121, 897 P.Zd 1085, 1088. Where the language is plain, 

unambiguous, direct, and certain, the statute speaks for 

itself and there is no need to resort to extrinsic means 

of interpretation. Christensen, 877 P.2d at 469 (citation 

omitted). In addition, 

[i]n the construction of a statute, the office of 

the judge is simply to ascertain and declare 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 

17 
applicable 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 and negligent 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 and statutory 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 

18 
based 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." Gist v. Segna 

(Mont. 1981), 622 P.Zd 1028 at 1029, 38 St.Rep. 150 at 

152, citing Dunphy v. AnacondaCo. (1968), 151 Mont. 76, 438 

P.2d 660. The language of the statute and an examination 

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 who operates a motor vehicle upon 

the public highways of this state shall be 

deemed to have given consent, subjectto theprovisions 

of 61-8-401, to a chemical test of his blood, 

breath, or urine for the purpose of 

determining the alcohol content of his blood if 

awesled by a peace ofJicer for driving OY in actual physical control of 

n motor vehicle while under the infruence of alcohol. 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 

State v. Campbell (Mont. 1980) , 615 P.2d 190, 37 St.Rep. 1337, 

where we held that an arrest is not always a prerequisite 

to administration of a blood alcohol test.) Not only is 

the section specifically premised on such an arrest, 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 a statute. 

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 on the 

courts deciding the cases cited immediately above; 

suspension of the driver's license is simply an 

insufficient penalty for refusing to submit to a chemical 

19 
analysis 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 a felony, while negligent vehicular 

20 
assault is merely a misdemeanor. While conceding that this 

criteria is of very limited significance, the majority relies on it 

for further support of its conclusion that 5 61-8-402, MCA, applies 

to an arrest for negligent vehicular assault. The Thomuson case 

did not make any distinction between felonies and misdemeanors and 

that is a troublesome distinction to create. Further, it cannot 

be disputed that negligent vehicular assault is a serious crime for 

which the mere sanction of having a license 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 a judicially created distinction 

is not warranted and places an unreasonable burden on law 

enforcement officers who investigate 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 be able to use the implied 

consent law as a shield to prevent evidence of chemical impairment 

21 
to 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 common sense allows this court to 

countenance its use as a shield 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, I would conclude that the 

seizure of blood in this case was a reasonable seizure and did not 

violate Greg's privacy interests. By the 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. The means and procedures employed in taking the 

blood were reasonable. Schmerber v. California (1966), 384 U.S. 

757. 

While this Court has recognized that Montana has a broad 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), 180 Mont. 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 

22 
and 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 

23 
Chief 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 a vehicle upon the ways of this state open to 

the public; 

i3i '"Under the influence" means that as a result of 

taking into the body alcohol, drugs, or any combination 

thereof, a person'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 was at that time an alcohol concentration of 0.05 or less, it may be inferred that the person 

was not under the influence of alcohol. 

(b) If there was at 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 was at that time an alcohol concentration of 0.10 or more, it may be 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 a combination of the two. 

24 
61-8-402. (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, 

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 bv 

peace officer for drivinq a vehicle while under 

the influence of alcohol[.] [Emphasis added.] 

45-5-205. (1) If a person operates a motor vehicle 

in a negligent 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 a peace 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 a person's 

body as set forth in 5 61-8-401, MCA, are rebuttable inferences 

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

concentration is not the only method by which a conviction for 

operating a motor vehicle while under the influence of alcohol can 

be obtained. Any other competent evidence bearing on that issue 

may be introduced and may result in a conviction. 

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 a homicide cannot 

be legally distinguished from the facts in this case. Stueck's 

driving may well have resulted in a homicide instead of a bodily 

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 

26