NO. 92-127 INTHE 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: DavidM. Ort!ey, AttorneyatTJaw, Kalispell, Montana For Resporl6ent: Hon. Marc Kacicot, Attorney General, Helena, Montana Kathy See1ey

### , Assistant Attorney General, Helena, Montana Ted 0. Ly~apus,County Attorney, Kalispell, Montana Ed Corr jgan, D~putyCounty Attorney, Ka1.ispelI., Montana

Submitted on Briefs: June 25, 1992 

### AUGS

# -1992

$9 r: , Decided: August 6, 1992 Filed: 

### ~2' ,._'. ., CL!YWK GI: i' 

### .i:

......Li3W'T ' 6 .-i ".: r ,: srA*b"c \,d. I.,..*,' ,J~~~A 

### /& :f

### ,! +,- :4:<!!i 

## ,fl&i+J;9::.9fi

<

....

!.:. -1. ., . " dw a' < '4 .'. "

.

### ..Clerkr r 1 r

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 (TenEyck) 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 suspensionof his licenseto the District Courtpursuant to 

### 5 61-8- 403,MCA, and following an evidentiaryhearing, 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 Should the District Courthave rescinded the suspensionof Ten Eycklsdriver's license on the ground that the hearing on his petition was held more than ten days after written notice of the petition for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 Eycklsresidence. Thepickup 

### had recently sustained extensive front-end

### damage. Ther r r 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 Eycklspickup parked in his garage and noted that it too had recently sustained damage including extensive damage to thebumper area, the tailgateandbox 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 fromTen 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 rearwindow of the truck,he did not requestmedical assistance. OfficerKing testified thathedid not notice any impairment of Ten Eycklsspeech,noting that itwas 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 standg1field sobriety test should not be given. Officer King did, however, perform a Horizontal Gaze Nystagmus 3v t # I (HGN)test on TenEyck and testified that "therewas a nystagmusat the maximum deviationv'indicating to the Officer that Ten Eyckts blood alcohol content was "[mlost likely, 

# . . . over a .lo, which isblood alcohol concentrati~n.~~ However, OfficerKing went on to say that "[a] head injury will cause a nystagmus in somepeople." 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 discussedwith TenEyckhis injuries fromtheaccident,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-examinationthat while sitting inhispatrol
carhe did not specifically tell Ten Eyck thathewas under arrest; but said that laterwhen he was reading the implied consent form to Ten Eyck in thehospital's emergency room,he told Ten Eyck thathe 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; sheultimately took Ten Eyck to thehospital, due in part to the additional officer's less than timely arrival. After beingI I examined at thehospital,Officer King had conversationswith 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 Eyckwas allowed to return homewith hiswife. Ten Eyck's driverIs 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 DistrictCourt gave the county attorney and TenEycklsattorney 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 compliedwith 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 statuteprovided for thirty days'written notice of thehearing to the county attorney; it was amended in 1983 to be limited to a tenday timeperiod. 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 forthno 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 5L t b r

suspension. There is no evidence presented before the District Court as towhether the appellantwas affectedby the suspension or
even whether he complied with the suspension of his license. He apparently had possession of his driver's license forat least part of the timebetween his refusal and thehearing. The lawprovides 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 inholding 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 restrainedby OfficerKing. 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 totake herhusband to thehospital and it was not until several hours after the accident and afterhe 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 Eycktswife took Ten Eyck home; no citations were issued; nocourt dateswere set;and Ten Eyck had no reason tobelieve that at any time during this period he was under arrest. On this recordwe conclude that Ten Eyck was not arrested and the subsequent suspension of his driver's licensewas unlawful and said suspension shouldbe rescinded. We reverse the District Court in thismatter 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 shallnot be cited as precedent and shallbepublishedby its filing as apublic 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: /