No. 86-376 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MATTER OF THE 

SUSPENSION OF THE DRIVING 

PRIVILEGES OF 

CRAIG F. ORMAN. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

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 

Duke R. Wolf, Deputy County Attorney, Bozeman, Montana 

For Respondent: 

Steven D. Nelson, Bozeman, Montana 

Submitted on Briefs: Oct. 30, 1986 

Decided: December 12, 1986 

Filed: DEC 12 1986 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Craig Orman was arrested for driving und.er the influence 

of alcohol. At the time of his arrest he refused to submit 

to a breath test to determine the level of his intoxication. 

The Department of Justice suspended M.r. Orman' s driver's 

license for one year because the breath test refusal was his 

second such refusal in Montana within the past five years. 

The District Court for the Eighteenth Judicial District, 

Gallatin County, granted Mr. Orman's petition to reinstate 

his driving privileges because the police officer involved 

may have unintentionally misled Mr. Orman regarding Montana's 

implied consent law. We affirm. 

The issue in this case is whether the District Court 

erred in reinstating Mr. Orman's driving privileges. 

In February 1986, Craig Orman, a Washington resident, 

was arrested by a Bozeman police officer for suspicion of 

driving while under the influence of alcohol and transported 

to the Gallatin County Detention Center (Center). Once at 

the Center, the police officer handed Mr. Orman a copy of the 

Montana implied consent law advisory form (form). While the 

police officer read the form to him, Mr. Orman, sitting 

across the table from the officer, read the same form. Mr. 

Orman then reread the form silently and said that he was not 

going to take the test. Apparently to clear up any confusion 

that might exist, the police officer then re-advised Mr. 

Orman that he would lose his driver's license for ninety days 

if he refused to take the test. All of the above proceedings 

at the Center were video-taped. 

The police officer was aware that Mr. Orman had been 

previously arrested for a D.U.I. However, the officer was 
not aware that Mr. Orman had previously refused to ta.ke a 

blood or breathalizer test. Because Mr. Orman's refusal in 

this case was his second such refusal in Montana within the 

last five years, the Motor Vehicle Division of the Department 

of Justice sent a one year license suspension letter to him 

in accordance with S 61-8-403, MCA. 

The District Court reinstated Mr. Orman's driver's 

license stating: 

[Dlue to serious ramifications of a second refusal, 

the Court believes that the police should advise 

people that if any advise (sic) is given then it 

should include the second as well as the first 

refusal. The tape in this case showed that the 

statement of the officers indicated the license 

would only be suspended for ninety (90) days. This 

prohibited the Defendant from exercising intelligent judgment. For this reason, the Court reinstates driving privileges. 

The Gallatin County Attorney's office appealed the 

decision on behalf of the Department of Justice, Plotor Vehicle Division. 

Did the District Court err in reinstating Mr. Orman's 

driving privileges? 

Sections 61-8-401 to 408, MCA, are the principle statutes controlling the driving of a motor vehicle while under 

the influence of alcohol or drugs. Mr. Orman argues that his 

conduct did not rise to the level of a refusal to submit to 

the breathalizer test, and analogizes his conduct to the 

conduct of a person who consents to a search of his person or 

property, contending that a refusal should be found only 

where there was a knowing and voluntary refusal. This argument does not consider the nature of the motor vehicle statutes in question. Section 61-8-402, MCA, in substance 

provides that any person who operates a vehicle upon the 
roads of this state shall be deemed to have given consent to 

a chemical test of his breath for the purpose of determining 

the alcoholic content of his blood if arrested by a police 

officer for driving under the influence of alcohol. The 

section further provides that a person is deemed - not to have 

withdrawn the consent even though he is unconscious or is 

otherwise in a condition rendering him incapable of refusal. 

As an example, if a person is so grievously under the influence of alcohol that he is incapable of expressing his refusal to take the blood alcohol test or a breath test, the state 

still has the right under the statute to take such a test. 

We therefore conclude that the cases pertaining to the voluntariness of a consent search or the knowing commitment of an 

offense are not of assistance. 

Section 61-8-403, MCA, controls the appeal from the 

suspension of a license to the district court and in part 

limits the issues to be considered by the court as follows: 

. . . the court shall take testimony and examine 

into the facts of the case, except that the issues 

shall be limited to whether a peace officer had 

reasonable grounds to believe the person had been 

driving or was in actual physical control of a 

vehicle upon ways of this state open to the public, 

while under the influence of alcohol, whether the 

person was placed under arrest, and whether such 

person refused to submit to the test. The court 

shall thereupon determine whether the petitioner is 

entitled to a license or is subject to suspension 

as heretofore provided. 

The District Court correctly identified the key issue as 

whether Mr. Orman refused to submit to the breathalizer test. 

We have reviewed the videotape prepared at the Center, 

which covers the police procedure with Mr. Orman. The officer carefully read the State of Montana implied consent law 

advisory form which covers the essential elements of 

5 61-8-402, MCA, and which specifically provides as follows 
with regard to the suspension of the license and driving 

privilege: 

3. You are advised that: ... 

(b) Upon receipt of the sworn statement, the 

Motor Vehicle Division shall suspend your 

driver's license and driving privilege for 90 

days upon a first refusal; or shall revoke 

your license and driving privilege for one (1) 

year upon a second or subsequent refusal 

within a five (5) year period. In either 

case, no provisional or probationary license 

may be issued. 

The tape shows that the officer carefully read that provision 

to Mr. Orman. In addition, the tape shows that Mr. Orman 

reread the form to himself over the course of several 

minutes. After completing that rereading, Mr. Orman stated 

that he was not going to take the breathalizer test. Up to 

that point the procedure taken by the police officer was 

meticulously careful and complete and would clearly afford a 

basis to conclude that Mr. Orman's license should be revoked 

for one year upon his second refusal to take the breathalizer 

test within the previous five years. However, there were 

additional statements made which caused the District Court to 

reach a different conclusion. 

me--tape-demons tra-s-&-pos s+fri-1;-i-y--tha t Mr. Orman may 

have beek-s*ht-ly-e-enfu-sed--at++tiW&eo--t-aket-h-her--Ce. Jn substance the officer next advised 

Mr. Orman that he would have to charge him with driving under 

the influence and that his license would be suspended for 

ninety days. Next, after giving the Miranda warning, the 

officer asked Mr. Orman a number of questions. Mr. Orman 

specifically stated that he thought he was under the influence of alcohol. The tape further demonstrates that the 

police officer ran Mr. Orman through the same tests at the 
Center as were given at the time of initial arrest. The 

tests confirm the conclusion of Mr. Orman that he appeared to 

be under the influence of alcohol-. In the course of this 

questioning and testing, the officer indicated several more 

times that he was required to charge Mr. Orman with driving 

under the influence and that his license would be suspended 

for ninety days. We do emphasize that there was no intent on 

the part of the officer to mislead Mr. Orman. The officer 

did not know that Mr. Orman had previously refused a 

breathalizer test within the past five years. A review of 

the evidence clearly demonstrates that even a person not 

under the influence of alcohol would reasonably have concluded that his license was going to be suspended for only ninety 

days. We do not find it reasonable to separate this knowledge from the initial statement by Mr. Orman that he would 

not submit to the breathalizer test. While we do not choose 

to set forth any rule controlling the information to be given 

by an officer at the time of such an arrest, we conclude in 

this specific set of circumstances, that Mr. Orman's refusal 

to submit to the breathalizer test contained a condition of a 

ninety day driver's license suspension. 

We affirm the order of the District Court reinstating 

Mr. Orman's driving privileges, noting that the record demonstrates that his driving privileges had been suspended for 

more than ninety days prior to the reinstatement by the 

District Court. 

Chief Justice 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 86-376 

IN RE THE MATTER OF THE SUSPENSION 

OF THE DRIVING PRIVILEGES OF 

CRIAG F. ORMAN 

- 

) 

1 ORDER 

The State petitioned this Court for a rehearing or a 

clarification of this matter. After due consideratioc of the 

arguments made, we conclude that our opinion dated December 

12, 1986, contains a sentence which is unnecessary and thus 

the opinion should be amended by striking the entire first 

sentence of the last paragraph on page 5 of the slip opinion. 

The sentence to be elininated from the opinion is. the one 

which states: "The tape demonstrates the possibility that 

Mr. Orman may have been slightly confused at the time he 

refused to take the breathalizer test." Thus, page 5 of the 

slip opinion shall read: 

FILED 

FEB 1 9 1987 

CL-K OF SUPREME COURT 

FTATE Of MON7ANA 
with regard to the suspc-nsion of the 1-icense and driving 

privilege: 

3. You are advised that: 

... 

(b) Upon receipt of the sworn statement, the 

Motor Vehicle Division shall suspend your 

driver's license and driving privilege for 90 

days upon a first refusal; or shall revoke 

your license and driving privilege for rJne (1) 

year upon a second or subsequent refusal 

within a five (5) year period. In either 

case, no provisional or probationary license 

may be issued. 

The tape shows that the officer carefully read that provision 

to Mr. Orman. In addition, the tape shows that Mr. Orman 

reread the form to himself over the course of several 

minutes. After completing that rereading, Mr. Orman stated 

that he was not going to take the breathalizer test. Up to 

that point the procedure taken by the poli-ce officer was 

meticulously careful and complete and would cl-early afford a 

basis to conclude- that Mr. Orman's license should be revoked 

for one year upon his second refusal tc take the breathalizer 

test within the previous five years. However, there were 

additional statements made which cafised the District Court to 

reach a different conclusion. 

In substance the officer next advised Mr. Orman that he 

would have to charge him with driving under the influence 

and that. his license would he suspended for ninety days. 

Next, after giving the Miranda warning, the officer asked 

Mr. Grman a number of questions. Mr. Orman specif ically 

stated that he thought he was under the influence of 

alcohol. The tape further demonstrates that the police 

officer ran Mr. Orman through the same tests at the 
In all 

clarification 

DATED th