No. 85-491 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKEVIN JOSEPH SWANSON, 

Defendant and Appellant, 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Torger S. Oaas, Lewistown, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Craig R. Buehler, County Attorney, Lewistown, Montana 

James Stogsdill, Deputy County Attorney, Lewistown 

Submitted on Briefs: April 4, 1986 

Decided: July 25, 1986 

Filed: JUL Z 5 1986 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Swanson appeals from an order of the Fergus County 

District Court denying his motion to dismiss and finding him 

guilty of driving under the influence of alcohol. 

We reverse and remand. 

Swanson raises the following issues on appeal: 

1. Whether he was denied due process by being deprived 

of a reasonable opportunity to gather exculpatory evidence, 

and; 

2. Whether the District Court erred in denying his 

motion to dismiss and granting the State's motion to strike 

Swanson's motion? 

On January 9, 1985, at 1:30 a.m., Swanson was stopped by 

Officer McCoy of the Lewistown Police Department. Swanson 

was taken to the police station where his actions were video 

taped. He performed three field sobriety tests. After 

performing the tests, the officer placed him under arrest for 

driving under the influence of alcohol. The officer then 

read Swanson his Miranda rights and the implied consent law. 

The officer requested Swanson to submit to a breath test. 

Swanson refused to submit to the breath test, but said he 

would submit to a blood test. The officer informed Swanson 

that a blood test would be done at Swanson's expense. 

After talking to his parents by telephone, Swanson was 

taken to the hospital where a blood sample was drawn. The 

sample was placed in a glass vial with an address where it 

was to be sent for analysis, and with a label saying "Keep 

Refrigerated. " The sample was given to the officer who gave 

it to Swanson telling him it was Swanson's sample, that he 
was responsible for paying for it, and that he should send it 

in as soon as possible. 

From the hospital, Swanson was transferred to the 

Sheriff's office. the Sheriff's office, the officer again 

told Swanson that he should send the sample to the address on 

the container. During the booking process the sample was 

taken from Swanson and placed on the counter in the booking 

room. Swanson was placed in the Fergus County Jail. When 

the officer left the Sheriff's office, he saw the sample on 

the counter in the dispatch room. The officer next saw the 

sample one or two days later at the police station. He 

placed the sample in the refrigerator, then called Swanson's 

father and told him that someone needed to get the sample and 

send it in for analysis. Swanson's father picked up the 

sample on January 13, 1985. Swanson was released on his own 

recognizance on January 11, 1985. 

The sample was never analyzed. The parties entered into 

a stipulation regarding the decreased validity of the sample 

due to its not being refrigerated. The stipulation stated: 

In lieu of submitted formal proof in the form of 

testimony (sic) and exhibits, it is hereby 

stipulated as follows: 

1. That on January 9, 1985, in reference to the 

above entitled case a blood sample was taken from 

Kevin Swanson at the Central Montana Hospital. 

2. The blood sample was improperly preserved in 

that it was not refrigerated. Due to the length of 

time which elapsed between the drawing of said 

sample and the laboratory analysis thereof a valid 

determination of its blood alcohol content could 

not be made. 

3. Had this blood sample been properly preserved 

and timely sent to a laboratory for analysis it 

would have indicated Kevin Swanson's actual blood 

alcohol content at the time said sample was drawn. 

DATED this 5th day of June, 1985. 
Swanson filed a motion to dismiss on June 7, 1985. On 

June 14, 1985, the State filed a motion to strike Swanson's 

motion. Following a June 19, 1985 hearing, the court took 

the motions under advisement and decided to consider them at 

the time of trial. 

Following a nonjury trial held July 1, 1.985, the 

District Court filed an order denying Swanson's motion, 

granting the State's motion, and finding Swanson guilty. 

Swanson appeals from this order. 

The first issue is whether Swanson was denied due 

process by being deprived of a reasonable opportunity to 

gather exculpatory evidence? Swanson argues that his 

inability to have his blood sample analyzed was the fault of 

the State. The State counters that Swanson had no right to 

an independent test, that the arresting officer facilitated 

Swanson's having a blood sample drawn by taking him to the 

hospital, and that no further action was required. 

Section 61-8-402(3), MCA, states that if a driver 

refuses to submit to an alcohol test designated by the 

arresting officer, then none shall be given by that officer. 

The statute concerning additional tests is S 61-8-405(2), 

MCA, which states: 

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

physician or registered nurse of his own choosing 

administer a test, in addition to any administered 

at the direction of a peace officer, for the 

purpose of determining the amount of alcohol in his 

blood at the time alleged as shown by chemical 

analysis of his blood, breath, or urine. 

A criminal accused has a constitutional right to attempt 

to obtain exculpatory evidence. When the crime involves 

intoxication, the accused has a right to obtain a sobriety 

test independent of that offered by the arresting officer. 

The language of S 61-8-405(2), MCA, does not support the 
State's interpretation that the right to an independent test 

arises only after the accused takes a test designated by the 

arresting officer. The Arizona Appellate Court interpreted a 

statute identical to S 61-8-405(2), MCA, and held that the 

State's interpretation "would result in an unconstitutional 

restraint on the right of a criminal accused to attempt to 

obtain independent evidence of his innocence and operate to 

deprive the accused of due process of law." Smith v. Cada 

(AZ. App. 1977), 562 P.2d 390, 393. Other cases also hold 

that denying one charged with an offense involving 

intoxication the right to attempt to obtain at his own 

expense a blood or other test to establish sobriety amounts 

to a denial of due process. State v. Choate (Tenn. 1983), 

667 S.W.2d 111; McNutt v. Arizona (Ariz. 1982), 648 P.2d 122; 

State v. Snipes (Mo. 1972), 478 S.W.2d 299; ~esler v. 

Department of Motor Vehicles (Cal. 1969), 459 ~.2d 900; In re 

Martin (Cal. 1962), 374 P.2d 801. 

We agree with these cases and hold that one accused of a 

crime involving intoxication has a right to obtain an 

independent blood test to establish his sobriety regardless 

of whether he submits to a police designated test. The 

question becomes whether the State interfered with Swanson's 

attempt to obtain this independent test. As the California 

Supreme Court stated: 

[Plolice officers are not required to take the 

initiative or even to assist in procuring any 

evidence on behalf of a defendant which is deemed 

necessary to his defense (citations omitted). But 

in no event can duly constituted authority hamper 

or interfere with efforts on the part of an accused 

to obtain a sampling of his blood, without denying 

to him due process of law. We are persuaded to 

such conclusion in any instance where the conduct 

of the authorities, whether through affirmative 

action or by the imposition of their rules and 

regulations, imposes any material obstacle in the 

path of the accused. Nor are we impressed that an 
accused, as perhaps in the instant case, might have 

reached his goal by pursuing a different course. 

It is sufficient if, in seeking to establish the 

fact of the alcoholic content of his blood, the 

authorities, by their actions or regulations, 

frustrate his reasonable efforts designed to 

produced probative evidence. 

In re Martin (Cal. 1962), 374 P.2d 801, 803. 

In this case, the arresting officer transported Swanson 

to a hospital to enable him to have a blood sample drawn, and 

transported him back to the Sheriff's office. Swanson was 

then booked into the Fergus County Complex. His property, 

including the blood sample, was taken from him. Although the 

sample was clearly marked "Keep Refrigerated," the arresting 

officer testified that the sample was left on the counter in 

the dispatch room. The sample was not given to Swanson upon 

his release. One or two days later the officer found the 

sample on a counter at the police station. He then placed 

the sample in the refrigerator. 

While the police have no duty to assist an accused in 

obtaining independent evidence of sobriety, they cannot 

frustrate such an effort through either affirmative acts or 

their rules and regulations. The sample was taken from 

Swanson as part of a stand.ard inventory search. One of the 

purposes of inventory searches is the safekeeping of 

prisoners' property. As the United States Supreme Court 

stated in Illinois v. Lafayette (1983), 462 U.S. 640, 103 

A standardized procedure for making a list or 

inventory as soon as reasonable after reaching the 

stationhouse not only deters false claims but also 

inhibits theft or careless handlinq of articles 

taken -- from the arrested person. (~rnphaxis added. 1 

Lafayette, 462 U.S. at 646. 

Once the sample was taken from Swanson, the police had a 

duty to see to its safekeeping. The sample should have been 
refrigerated. Instead, it was left unrefrigerated for up to 

two days until the sample turned up in the police station and 

the arresting officer placed it in a refrigerator. This 

careless handling of the sample deprived Swanson of his due 

process right to gather possible exculpatory evidence. 

We do not agree with the State's argument that Swanson 

should have seen that the sample was properly cared for. Had 

he not been incarcerated and the sample taken from him we 

would find differently. However, he was deprived of the 

opportunity to care for the sample because of his 

incarceration. Once the authorities took control of the 

sample, shortly after it was drawn, they had a duty to 

properly care for it. This they did not do. Therefore, 

Swanson's motion to dismiss should have been granted. 

Dismissal of the case with prejudice is the appropriate 

remedy because the State's action precluded a fair trial by 

preventing Swanson from gathering exculpatory evidence. 

Swanson also argues that he should have been advised of 

his right to post bail in lieu of incarceration. The 

offenses for which Swanson was arrested were offenses where a 

peace officer could accept cash bail, yet Swanson was not 

advised that he could have posted bail that night. Since we 

have already found a dismissal of the charges is appropriate, 

we need not address this issue. 

We remand this case to the District Court with 

instructions to grant Swanson's motion to dismiss. 

We Concur: 
Chief Justice 

Justices 
Mr. Justice Fred J. Weber dissents as follows: 

I agree with the majority opinion when it holds that one 

accused of a crime involving intoxication has a right to 

obtain an independent blood test to establish his sobriety 

regardless of whether he submits to a police designated test. 

I do not agree with the balance of the opinion. 

If the the action of the State had established a clear 

interference with Mr. Swanson's attempt to obtain exculpatory 

evidence, then I would agree with the majority. However, I 

believe a consideration of all of the facts requires a different conclusion. 

I will review the pertinent facts, including portions 

which are mentioned in the majority opinion. On January 9, 

1985, at 1:30 a.m., the defendant was stopped by the police 

and taken to the station. His father came to the station 

before the blood test was taken and indicated his willingness 

to pay for the blood test. The defendant was taken to the 

hospital at his request where the blood sample was drawn. 

From the hospital the defendant was transferred to the sheriff's office. The arresting officer gave the blood sample to 

the defendant with the advice that it was the defendant's 

sample, that he should send it in as soon as possible. The 

label on the sample stated "Keep Refrigerated." During the 

booking process at the sheriff's office, the sample was 

placed on the counter in the booking room. We do not know if 

the sample was actually taken from the defendant, or was 

placed on the counter by the defendant. The only evidence 

establishes that when the officer left the booking room, he 

saw the sample on the counter. 

Approximately 5 hours after the booking, defendant was 

taken before the Justice of the Peace on the morning of 
January 9. At that time bail was set. There is no indication that defendant made any request at that time with regard 

to the blood sample. Specifically there is no indication 

that he requested of the police or the Justice of the Peace 

that the blood sample be sent in. The defendant was released 

on his own recognizance on January 11. Again, there is no 

indication that the defendant made any inquiry with regard to 

the blood sample. 

The arresting officer testified that he found the sample 

at the police station and put it in the refrigerator. He 

then called the defendant's father and told him that somebody 

needed to get the sample and send it in for analysis. The 

defendant's father testified that he received the call on 

January 12 and that the sample was picked up from the police 

station on January 13. 

I agree with the conclusion of the majority that the 

police cannot frustrate the effort of an accused to obtain 

independent evidence of sobriety. I question that the evidence in this case indicates any such conduct. While I agree 

that it would have been appropriate for the police to have 

placed the sample in the refrigerator on the morning of 

January 9, we must balance this against the indifference on 

the part of the defendant as to the treatment of the sample. 

He made no request for refrigeration or sending in of the 

sample at the time of booking, or at the time of appearance 

before the Justice of the Peace, or at the time that he was 

discharged on January 11. The defendant's disinterest suggests that he had concluded that he did not desire a test of 

his blood sample. The only reason that the matter came to 

the attention of anyone is that the officer was diligent when 

he observed the sample on January 12 at the police 
department. He then attended to the refrigeration and called 

the defendant's father. 

I agree with the conclusion that the police cannot 

interfere with the gathering of exculpatory evidence. In 

this case, the facts indicate a total lack of diligence or 

effort on the part of the defendant. I would not dismiss the 

case. 

Chief Justice J.A. Turnage and Justice L.C. Gulbrandson 

join in the foregoing dissent of Justice Fred J. Weber.