NO. 92-127 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JMES STANLEY TEN EYCK 

Petitioner and Appellant, 

STATE OF MONTANA, 

DEPARTMENT OF JUSTICE, 

Respondent and F.esponden.t. 

APPEAL FROM: Dis.trict Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECGRD: 

For Appellant : 

David M. Ort! ey, Attorney at TJaw, Kalispell, Montana 

For Resporl6ent: 

Hon. Marc Kacicot, Attorney General, Helena, 

Montana 

Kathy See1 ey , Assistant Attorney General, Helena, 

Montana 

Ted 0. Ly~apus, County Attorney, Kalispell, Montana 

Ed Corr j gan, D~puty County Attorney, Ka1.ispel I., 

Montana 

Submitted on Briefs: June 25, 1992 

AUGS - 1992 

$9 r: , Decided: August 6, 1992 

Filed : ~2' ,._'. ., 

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Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court of the Eleventh 

Judicial District of the State of Montana, in and for the County of 

Flathead. On January 14, 1992, the driver's license of appellant 

James Stanley Ten Eyck (Ten Eyck) was seized pursuant to 5 61-8- 

402 (3), MCA, due to his refusal to submit to a chemical test to 

measure or detect alcohol in his body. Ten Eyck appealed the 

suspension of his license to the District Court pursuant to 5 61-8- 

403, MCA, and following an evidentiary hearing, the District Court 

refused to reinstate the appellant's driver's license. Ten Eyck 

now appeals, we reverse. 

Two issues are presented on appeal: 

1. Should the District Court have rescinded the suspension of 

Ten Eyckls driver's license on the ground that the hearing on his 

petition was held more than ten days after written notice of the 

petition for judicial review was provided by defense counsel to the 

county attorney? 

2. Did the District Court err in holding that Ten Eyck was 

placed under arrest prior to his refusal to submit to a blood test 

to determine the presence or amount of alcohol in his body? 

On January 14, 1992, at approximately 9:30 p.m., Officer 

Clancy King of the Montana Highway Patrol received a report of a 

two-vehicle accident on Highway 93, north of Kalispell, Montana. 

When he arrived at the scene of the accident he found only a blue 

Ford pickup which was located in front of Ten Eyckls residence. 

The pickup had recently sustained extensive front-end damage. The 
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owner of the Ford pickup had abandoned the vehicle and left the 

scene of the accident. A witness reported to Officer King that he 

believed he saw another vehicle involved in the accident being 

parked in Ten Eyckls garage. Tire tracks leading from the scene 

through the snow supported the witness1 statement. 

Approximately ten minutes after Officer King arrived at the 

scene, Ten Eyck walked down his driveway to speak with Officer 

King. He admitted that he was one of the drivers involved in the 

accident. Officer King observed Ten Eyckls pickup parked in his 

garage and noted that it too had recently sustained damage 

including extensive damage to the bumper area, the tailgate and box 

area and the rear window had been broken out. Officer King asked 

Ten Eyck to have a seat in his patrol car to examine his driver's 

license; at that time the Officer became aware of an odor of 

alcohol coming from Ten Eyck. Officer King questioned Ten Eyck if 

he had been drinking and Ten Eyck informed the Officer that he, 

indeed, had consumed a couple of beers. 

Although Ten Eyck suffered minor injuries from the accident 

including an injury to his left arm and a bump on the head as a 

result of hitting his head on the rear window of the truck, he did 

not request medical assistance. Officer King testified that he did 

not notice any impairment of Ten Eyckls speech, noting that it was 

understandable but was marked with frequent hesitation or pauses. 

Further, Officer King did not notice any impairment in Ten Eyckss 

balance. Due to the head injury, Officer King decided that the 

"one-legged standg1 field sobriety test should not be given. 

Officer King did, however, perform a Horizontal Gaze Nystagmus 

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(HGN) test on Ten Eyck and testified that "there was a nystagmus at 

the maximum deviationv' indicating to the Officer that Ten Eyckts 

blood alcohol content was "[mlost likely, . . . over a .lo, which 

is blood alcohol concentrati~n.~~ However, Officer King went on to 

say that "[a] head injury will cause a nystagmus in some people." 

Due to the Officer's perception of the odor of alcohol, Ten 

Eyck's admission that he had been drinking, and the results of the 

HGN test, Officer King testified that he informed Ten Eyck that he 

was going to request a blood test. During direct examination, 

Officer King testified that Ten Eyck was under arrest for Driving 

under the Influence, DUI, but on cross-examination the Officer 

testified that after he had administered the HGN test, and 

discussed with Ten Eyck his injuries from the accident, he informed 

him that another officer would be coming shortly to transport him 

to the hospital, where they would request a blood test. Officer 

King conceded on cross-examination that while sitting in his patrol 

car he did not specifically tell Ten Eyck that he was under arrest; 

but said that later when he was reading the implied consent form to 

Ten Eyck in the hospital's emergency room, he told Ten Eyck that he 

was under arrest. On further cross-examination, Officer King 

admitted that he did not recall at any time at the hospital or 

throughout the incident specifically telling Ten Eyck: "You are 

under arrest." 

While Officer King and Ten Eyck were waiting for another 

officer to take Ten Eyck to the hospital, Ten Eyck's wife arrived 

home; she ultimately took Ten Eyck to the hospital, due in part to 

the additional officer's less than timely arrival. After being 
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examined at the hospital, Officer King had conversations with both 

Mr. and Mrs. Ten Eyck and ultimately Ten Eyck refused to give a 

blood sample. Officer King testified that Ten Eyck read the 

implied consent form before he refused the test. Ultimately Ten 

Eyck was allowed to return home with his wife. Ten Eyck's driver Is 

license was subsequently seized. 

Ten Eyck filed his petition for judicial review of the 

suspension of his driving privilege on January 23, 1992. Later, 

the District Court gave the county attorney and Ten Eyckls attorney 

written notice that the matter was set for a hearing ten days 

later, on February 10, 1992. 

In response to the issue of whether the District Court erred 

in denying the appellant's motion for a rescission of the 

suspension of his driver's license on the ground that the hearing 

on the appellant's petition was held more than ten days after a 

written notice was given to the county attorney, we note that the 

District Court had fully complied with this Court's interpretation 

of the requirements of 5 61-8-403, MCA, in the case of State v. 

Johnson (1979), 182 Mont. 24, 594 P.2d 333. In Johnson, the 

statute provided for thirty days' written notice of the hearing to 

the county attorney; it was amended in 1983 to be limited to a tenday time period. Here the notice requirements of § 61-8-403, MCA, 

have been fulfilled. In appellant's reply brief, he acknowledges 

that he was unaware of the decision in Johnson. Ten Eyck sets 

forth no support for his claim that he was denied due process. He 

received a District Court hearing within nineteen days after he 

filed his petition for judicial review of his driver's license 

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suspension. There is no evidence presented before the District 

Court as to whether the appellant was affected by the suspension or 

even whether he complied with the suspension of his license. He 

apparently had possession of his driver's license for at least part 

of the time between his refusal and the hearing. The law provides 

that Ten Eyck was entitled to a 72-hour driving permit following 

the seizure of his license and could have obtained a stay of 

suspension of his license pending his appeal. See Matter of 

Vinberg (1985), 216 Mont. 29, 699 P.2d 91. 

As to the second issue presented to us, whether the District 

Court erred in holding that Ten Eyck was placed under arrest prior 

to his refusal to submit to a blood test to determine the presence 

or amount of alcohol in his body, we find that the record does not 

support the District Court's holding. 

The record does not support a finding that the appellant was 

placed under arrest or ever physically restrained by Officer King. 

It is evident that on both direct and cross-examination there is 

considerable question whether Officer King directly indicated to 

Ten Eyck, either at the scene of the accident or throughout their 

discussions, that he was under arrest. Ten Eyck was allowed to go 

to his house while an investigation was made by the Officer; the 

Officer allowed Ten Eyck's wife to take her husband to the hospital 

and it was not until several hours after the accident and after he 

had been read the implied consent form, that Ten Eyck had any 

reason to believe he could not walk away free; after Ten Eyck 

refused to take the blood test, Officer King left the hospital and 

Ten Eyckts wife took Ten Eyck home; no citations were issued; no 
court dates were set; and Ten Eyck had no reason to believe that at 

any time during this period he was under arrest. 

On this record we conclude that Ten Eyck was not arrested and 

the subsequent suspension of his driver's license was unlawful and 

said suspension should be rescinded. We reverse the District Court 

in this matter and direct the court to reinstate James Stanley Ten 

Eyck's driver's license. Reversed and remanded. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: /