No. 85-491 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiffand Respondent,

-vsKEVIN JOSEPH SWANSON, Defendantand Appellant,

APPEAL FROM: DistrictCourtof the TenthJudicialDistrict, Inand forthe Countyof Fergus, TheHonorablePeterL. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: Torger S. Oaas, Lewistown, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Barbara Claassen, Asst. Atty. General, Helena CraigR. Buehler, CountyAttorney, Lewistown, Montana James Stogsdill, DeputyCountyAttorney, Lewistown

Submittedon Briefs: April4, 1986 Decided: July 25, 1986

Filed: 

## JUL Z

## 51986Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Swanson appeals from an order of the Fergus County District Court denying hismotion to dismiss and finding him guilty ofdriving under the influenceof alcohol. We reverseand 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., Swansonwas stoppedby Officer McCoy of the Lewistown Police Department. Swanson was taken to the police stationwhere his actionswere video taped. He performed three field sobriety tests. After performing the tests, the officerplaced 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 ablood test would be done at Swanson's expense. After talking to his parents by telephone, Swansonwas 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 samplewas given to the officerwho gave it to Swanson telling him it was Swanson's sample, that hewas responsible forpaying for it,and thathe should send it in as soonaspossible. From the hospital, Swanson was transferred to the Sheriff'soffice. the Sheriff'soffice,the officer again told Swanson thathe 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 sampleand send it in for analysis. Swanson's father picked up the sample on January 13, 1985. Swansonwas released on his own recognizanceonJanuary 11, 1985. The samplewas 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 itwas 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 notbe 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 5thday 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. Swansonappeals 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 thatno furtheractionwas 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 ofdetermining the amountof alcohol in his blood at the time alleged as shown by chemical analysis ofhis blood,breath, orurine. A criminalaccused 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 theState's interpretation that the right to an independent test arises only after the accused takes a test designatedby the arrestingofficer. 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), 667S.W.2d 111;McNuttv. Arizona (Ariz. 1982), 648P.2d 122; State v. Snipes (Mo. 1972), 478 S.W.2d 299; ~eslerv. Department ofMotor 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 (citationsomitted). But in no event can duly constituted authority hamper or interferewith efforts on thepart of an accused to obtain a sampling ofhis 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 arewe impressed that anaccused,asperhaps 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 reMartin (Cal. 1962), 374 P.2d 801, 803. In this case, the arresting officer transported Swanson to a hospital to enablehim tohave ablood sampledrawn,and transported him back to the Sheriff's office. Swanson was then booked into the Fergus County Complex. His property, including theblood sample,was taken fromhim. Although the samplewas clearly marked "KeepRefrigerated," the arresting officer testified that the samplewas left on the counter in the dispatch room. The samplewas 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.ardinventory 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 claimsbut also inhibits theft or careless handlinq of articles taken 

### -- from the arrested person. (~rnphaxis added.1 Lafayette, 462U.S. at 646. Once the samplewas taken from Swanson,the police had a duty to see to its safekeeping. The sample should have beenrefrigerated. Instead, it was left unrefrigerated for up to twodays until the sample turned up in thepolice stationand the arresting officer placed it in a refrigerator. This careless handling of the sample deprived Swanson of his due process right to gatherpossible exculpatoryevidence. We do not agree with the State's argument that Swanson should have seen that the samplewasproperly 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 exculpatoryevidence. Swanson also argues that he should have been advised of his right to post bail in lieu of incarceration. The offenses for which Swansonwas arrestedwere offenseswhere a peace officer could accept cash bail, yet Swanson was not advised that he could have posted bail that night. Sincewe have already found a dismissalof the charges isappropriate,

we need not address this issue. We remand this case to the District Court with instructionsto grant Swanson'smotion todismiss.



### We Concur:Chief Justice

JusticesMr. JusticeFred J. Weber dissents as follows: I agreewith themajority opinionwhen it holds thatone accused of a crime involving intoxication has a right to obtain an independent blood test to establish his sobriety regardless of whether he submitstoa police designated test. I do not agreewith thebalance of theopinion. If the the action of the State had established a clear interferencewith Mr. Swanson's attempt toobtain exculpatory evidence, then I would agree with the majority. However, I believe a consideration of allof the facts requires a differentconclusion. 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 theblood testwas taken and indicatedhiswillingness topay 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 tothe sheriff'soffice. The arrestingofficergave theblood sample to the defendant with the advice that it was the defendant's sample, thathe 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 inthebooking room. Wedo 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 ofJanuary 9. At that time bail was set. There is no indication that defendant made any request at that timewith regard to the blood sample. Specifically there is no indication that he requested of the police or the Justice of the Peace that theblood samplebe sent in. Thedefendantwas released

on his own recognizance on January 11. Again, there is no indication that the defendantmade any inquirywith regard to the blood sample. The arresting officer testified thathe found the sample at the police station and put it in the refrigerator. He then called thedefendant's fatherand 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 samplewas picked up from thepolice stationon 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 indicatesany such conduct. While Iagree 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 thathe did not desire a test of his blood sample. The only reason that the matter came to the attentionof anyone is that the officerwas diligentwhen he observed the sample on January 12 at the policedepartment. Hethen attended tothe refrigeration and called thedefendant'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 efforton thepartof thedefendant. I would not dismiss the

case.

Chief Justice J.A. Turnage and Justice L.C. Gulbrandson join inthe foregoingdissentof JusticeFred J. Weber.