No. 85-116 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsMICHAEL CARNEY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the $% ,&A Judicial District, 

In and for the County of-, 43faR2&~w 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana 

James D. McKenna argued, Deputy County Attorney, 

Bozeman, Montana 

For Respondent: 

Mike Sand argued, Bozeman, Montana 

Submitted: November 27, 1986 

Decided: January 16, 1986 

Filed: JAN 1 6 1986 

* *- 

$G6,<:& . 4, " ,q f 8 7 1 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Michael Carney, defendant, was charged with driving 

while under the influence of alcohol and with two counts of 

negligent homicide. During the second day of trial, the 

Gallatin County District Court sustained defendant's 

objection to the admissibility of blood samples because the 

State failed. to establish a proper chain of custody. The 

State advised the caurt that they desired to appeal its 

decision. The Court dismissed the jury. The State appeals. 

We dismiss the appeal and remand to the District Court with 

directions that the charges be dismissed with prejudice. 

The issues are: 

1. Was the order ruling the blood samples inadmissible 

for failure to lay a proper foundation appealable? 

2. Do the double jeopardy clauses of the United States 

Constitution and the Montana Constitution prohibit a retrial 

of the defendant? 

On June 11, 1982, defendant was involved in an 

automobile accident in which two persons were killed near 

West Yellowstone. Shortly after the accident, defendant was 

transported by ambulance to Ashton Memorial Hospital in 

Ashton, Idaho. The investigating highway patrolman called 

the hospital and requested a blood sample for alcohol testing 

purposes. A qualified lab technician at the hospital drew 

samples at 11:OO p.m. and 12:OO midnight. She placed the two 

samples in separate vials and sealed them. She wrote on each 

vial the defendant's name, the date, and the time each blood 

sample was taken. 

The lab technician delivered the blood samples in a 

paper sack to the ambulance driver. The driver did not look 

inside the sack containing the blood samples. He could not 
testify as to the manner of sealing. He merely took the 

paper sack from Ashton, Idaho to West Yellowstone, Montana. 

When he was unable to locate the highway patrolman, the 

ambulance driver put the sack containing the samples on the 

police dispatcher's desk. That took place at approximately 

1:00 a.m. 

At approximately 1:00 p.m. or 12 hours later, the 

highway patrolman picked up the samples from the police 

dispatcher's desk. The patrolman testified the two vials 

were in a stapled sack inside a sealed manila envelope. The 

patrolman opened the envelope and the sack and found the two 

vials of blood. He testified he did not open the seals on the 

vials. He placed the vials in a mailing container furnished 

by the Montana State Crime Investigation Laboratory and sent 

them to the laboratory for testing. 

The State was unable to explain the actual custody of 

the blood samples during the approximately 12 hours between 

the time the samples were left at the police dispatcher's 

desk until they were picked up from the same desk by the 

highway patrolman. This was the crucial factor in the order 

of the District Court. 

The hea.d of the Alcohol Section at the State Crime 

Laboratory testified that both vials were still sealed when 

he received t-hem, that he removed the seals, and that the 

blood alcohol test was run under his supervision. He 

emphasized that the seals had not been broken. In the course 

of this examination, the State moved for the admission of the 

blood sample vials. At that point, the defense counsel made 

the following objection: 

Your Honor, I am going to object to the 

introduction of those exhibits and any testimony 

relating to them on the basis of foundation, 

specifically, there hasn't been a proper chain of 

custody laid, therefore no foundation. 
Outside of the presence of the jury, extensive testimony 

was presented to the District Court judge with regard to the 

blood samples and the results of the tests. This was 

followed by extensive argument on the part of counsel. The 

court then made the following ruling: 

I'm going to sustain the objection and I'm not 

going to admit it on the basis and fact there is no 

chain from the period he left Frankie Harringfeld 

[the laboratory technician]. Mr. Costello is a.n 

ambulance driver and not a police officer. He 

takes the sample to the dispatcher and they put the 

thing on the desk. The officer testified that he 

didn't even pick it up from the dispatcher but 

right on the desk there. 

[I]t bothers me with two people dead, the officer 

can't even go down to Idaho to pick up this sample 

when that's what they are trained to do, so I'm 

going to sustain the objection and refuse to admit 

it. 

When the county attorney advised that the State desired to 

appeal the ruling of the District Court, the court pointed 

out that this would raise a question of double jeopardy. 

That element was discussed by the county attorney and by 

defense counsel. Notwithstanding that discussion, the 

county attorney concluded that it was advisable to appeal the 

order. The District Court dismissed the jury in the 

following language: 

Ladies and gentlemen of the jury, I would like to 

advise you that I have made a ruling contrary to 

the State's position and they are going to appeal 

the case to the Supreme Court, therefore, you are 

dismissed. I wish to thznk you for your attention 

and the care with which you have given this case. 

I'm sorry you cannot go to the conclusion but that 

is the decision of the county attorney, so you are 

dismissed. 

Our two issues are whether the ruling that the blood 

samples are inadmissible as evidence is an appealable order, 

and whether the double jeopardy clauses prohibit a retrial of 

the defendant. Because these issues are interwoven, we will 

discuss them together. 
With regard to the issue on the right to appeal from the 

evidentiary ruling, both parties agree that the State's right 

of appeal, if any, is controlled by S 46-20-103, MCA: 

Scope of appeal by state. (1) Except as otherwise 

specifically authorized, the state may not appeal 

in a criminal case. 

(2) The state may appeal from any court order or 

judgment the substantive effect of which results 

in: 

(a) dismissing a case; 

(b) modifying or changing the verdict as provided 

in 46-16-702 (3) (c) ; 

(c) granting a new trial; 

(d) quashing an arrest or search warrant; 

(e) suppressing evidence; 

(f) suppressing a confession or admission; or 

(g) granting or denying change of venue. 

With reference to subsection (e) of the statute, the State 

argues that the term "suppressing evidence" shoul-d be broadly 

construed. The State contends that the statute applies to 

all rulings excluding evidence which substantially impair the 

State's case, as well as to the suppression of evidence which 

has been illegally obtained. See State v. Newrnan (Kan. 1984), 

680 P.2d 257. The State argues that the order effecti-vely 

suppressed significant evidence and is therefore appealable. 

The defendant objected to the admission of the blood 

samples because of the failure to lay a proper foundation, 

specifically because of the failure to prove a proper chain 

of custody. The District Court sustained that objection. 

Defendant contends that the evidentiary ruling by the 

District Court does not fit within the statutory exceptions 

which allow an appeal. 

Section 46-20-103, MCA, d.oes not distinguish between 

appeals made prior to the commencement of trial (pre-trial) 
and appeals taken in the course of trial (mid-trial). We 

must carefully distinguish between pre-trial and mid-trial 

appeals. Mid-trial criminal appeals raise the constitutional 

question of double jeopardy. Pre-trial appeals do not raise 

such an issue. Because this is a mid-trial appeal, we must 

analyze the d.ouble jeopardy aspect of such an appeal-. 

The fifth amendment of the United States Constitution. 

and art. 11, sec. 25 of the Montana Constitution prohibit an 

individual from being twice put in jeopardy for the same 

offense. The policy considerations for this fundamental 

right were stated by the United States Supreme Court in 

United States v. Jorn (1971), 400 U.S. 470, 479: 

The Fifth Amendment's prohibition against placing a 

defendant "twice in jeopardy" represents a 

constitutional policy of finality for the 

defendant's benefit in federal criminal 

proceedings. A power in government to subject the 

individual to repeated prosecutions for the same 

offense would cut deeply into the framework of 

procedural protections which the Constitution 

establishes for the conduct of a criminal trial. 

And society's awareness of the heavy personal 

strain which a criminal trial represents for the 

individual defendant is manifested in the 

willingness to limit the Government to a single 

criminal proceeding to vindicate its very vital 

interest in enforcement of criminal laws. 

In a jury trial, jeopardy attaches when the jury is 

empaneled and sworn. Crist v. Bretz (1978), 437 U.S. 28. It 

is undisputed that jeopardy had attached prior to dismissal 

in this case. 

A second criminal trial is ba,rred unless there was a 

"manifest necessity" to terminate the trial or defendant 

acquiesced in the termination. See W. LaFave & J. Israel, 

Criminal Procedure S24.l (d) at 901 (1985) . "Manifest 

necessity" has been explained by the United States Supreme 

Court as follows: 

Under the [manifest necessity] rule a 

trial can be discontinued when particular 

circumstances manifest a necessity for so 
doing, and when failure to discontinue 

would defeat the ends of justice. 

Wade v. Hunter (1949), 336 U.S. 684, 690. 

. . . Indeed, it is manifest that the key 

word "necessity" cannot be interpreted 

1i.terally; instead . . . we assume that 

there are degrees of necessity and we 

require a "high degree" before concluding 

that a mistrial is appropriate. 

The question whether that "high degree" 

has been reached is answered more easily 

in some kinds of cases than in others. 

At one extreme are cases in which a 

prosecutor requests a mistrial in order 

to buttress weaknesses in his evidence. 

Although there was a time when English 

judges served the Stuart monarchs by 

exercising a power to discharge a jury 

whenever it appeared that the Crown's 

evidence would be insufficient to 

convict, the prohibition against double 

jeopardy as it evolved in this country 

was plainly intended to condemn this 

"abhorrent" practice . . . 

Thus, the strictest scrutiny is 

appropriate when the basis for the 

mistrial is the unavailability of 

critical prosecution evidence, or when 

there is reason to believe that the 

prosecutor is using the superior 

resources of the State to harass or to 

achieve a tactical advan.tage over the 

accused. 

At the other extreme is the mistrial 

premised upon the trial judge's belief 

that the jury is unable to reach a 

verdict, long considered the classic 

basis for a proper mistrial . . . 

Arizona v. Washington (1978), 434 U.S. 497, 506-09. We 

approve and. adopt the preceding explanations of "manifest 

necessity" given in Wad.e and Arizona. 

In considering whether or not the facts of this case 

meet the statutory definition of suppression of evidence, the 

claimed necessity for granting an appeal must be balanced 

against and harmonized with the defendant's fundamental 

rights under the double jeopardy clauses of the United States 

and Montana Constitutions. 
In seeking to determine whether there was a "manifest 

necessity" to discontinue the trial and allow an 

interlocutory appeal, the court must exercise the power to 

discharge a jury "with the greatest caution, under urgent 

circumstances, and for plain and obvious cases." See Wade v. 

Hunter (1949), 336 U.S. 684, 690, citing United States v. 

Perez (1824), 6 U.S. 165. Under that standard, a trial 

should be discontinued with great caution. 

Does an adverse eviden.tiary ruling based upon the 

failure to prove a chain of custody constitute manifest 

necessity? We conclude that as a general rule, a ruling on 

the admission of evidence which is adverse to the State does 

not constitute an urgent circumstance or a plain and obvious 

case constituting manifest necessity. 

Is there something unique about the facts of the present 

case which prohibits the application of that general 

principle? The objection to the admission of evidence was 

based upon the lack of a foundation because of the failure to 

prove a proper chain of custody. The objection was sustained 

by the District Court. These facts do not suggest a plain 

and obvious case warranting an appeal, nor do they describe 

an urgent circumstance. The prosecution had an adequate 

opportunity to present the question of admissibility in a 

pre-trial motion. They did not exercise that choice. We 

conclude that the State has failed to show a "manifest 

necessity" for discontinuing the trial and initiating the 

interlocutory appeal. 

We conclude that the order sustaining the objection to 

the admission of evidence did not constitute "suppressing 

evidence" as defined in 5 46-20-103, MCA. We hold that the 

District Court order ruling the blood samples inadmissible 
for failure to lay a proper foundation was not an appealable 

order. 

Because the State has failed to meet the standard of 

"manifest necessity," we further conclude that it would be 

constitutionally impermissible to again place the defendant 

in jeopardy. We hold that a further trial of the defendant 

for the same offenses would constitute double jeopardy. 

The appeal of the State of Montana is dismissed. The 

cause is remanded to the District Court for the dismissal of 

the charges against the defendant with prejudice. 

We Concur: 

1 

Justices. V