97-114

 No. 97-114

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 75

 STATE OF MONTANA,

 Plaintiff and Respondent,

 v.

 BENJAMIN JOSEPH GRIFFING,

 Defendant and Appellant.

 APPEAL FROM: District Court of the Fourth Judicial District,

 In and for the County of Missoula,

 The Honorable John W. Larson, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Bruce L. Hussey, Attorney at Law, Missoula, Montana

 For Respondent:

 Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,

 Assistant Attorney General, Helena, Montana

 Robert L. Deschamps, III, Missoula County Attorney, Missoula

 Montana

 Submitted on Briefs: December 18, 1997

 Decided: April 7, 1998

 Filed:

 __________________________________________

 Clerk

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Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Benjamin Joseph Griffing (Griffing) appeals from the judgment entered by the 

Fourth

Judicial District Court, Missoula County, on a jury verdict convicting him of 

negligent

homicide and, specifically, from the District Court's denial of his motion to 

suppress

evidence obtained during the investigation of a one-vehicle traffic accident. We 

affirm.

¶2 The sole issue on appeal is whether the District Court erred in

denying Griffing's mid-trial motion to suppress.

 BACKGROUND

¶3 At 2:50 a.m. on March 30, 1996, Deputy Sheriff Howard Reed (Deputy Reed)

received a call that an accident had occurred on Highway 12 near Lolo, Montana. 

Griffing's

truck had left the highway, broken two fenceposts and landed upside down. One of the

fenceposts pierced the windshield, passed through the steering wheel, and struck the

passenger, Gordon Wylie (Wylie). Deputy Reed found Griffing at the scene of the 

accident. 

Griffing told Deputy Reed that he was afraid he had killed his best friend and, 

indeed, Wylie

was dead by the time Deputy Reed arrived.

¶4 Highway Patrol Officer Iva May Johnston (Officer Johnston) arrived at the scene

about an hour after Deputy Reed. She talked with Griffing briefly and asked him to 

sit in the

front seat of her vehicle while she observed the accident scene. She returned to 

her vehicle

several times and, noting the smell of alcohol, asked Griffing if he had been 

drinking. 

Griffing responded that he had been drinking and, upon request, described how the 

accident

occurred. Officer Johnston inquired how much Griffing had to drink and whether he 

would

take a breathalyzer test. Griffing consented to the test and Officer Johnston drove 

Griffing

to the Missoula City Police Department (the Department) for the test. Griffing was 

not under

arrest at the time and Officer Johnston did not ask him any additional questions 

until they

reached the Department.

¶5 At the Department, Officer Johnston informed Griffing that she was turning on 

the

videotape and read the implied consent form to him. Griffing signed the implied 

consent

form and verbally agreed to take a breathalyzer test. Another officer administered 

the test

and, upon receiving the results, Griffing requested a blood alcohol test. Officer 

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Johnston

then read Griffing the Miranda warnings and began asking Griffing questions and

administering the field sobriety tests. When Officer Johnston later offered to drive 

Griffing

to the hospital for the blood alcohol test he had requested, Griffing chose not to 

have the test

performed. 

¶6 The State of Montana (State) charged Griffing by information with one count of

negligent homicide as a result of Wylie's death in the accident. Prior to trial, 

Griffing moved

to suppress the results of the breathalyzer test on the basis that his consent to 

the test had

been coerced. The District Court denied the motion. During trial, Griffing orally 

moved to

exclude and suppress all evidence obtained after he was asked to sit in Officer 

Johnston's

vehicle, on the basis that it violated his Fourth Amendment rights, and for a 

mistrial. The

District Court denied Griffing's motions, the trial continued and the jury found 

Griffing

guilty of negligent homicide. The District Court entered its judgment and sentence 

and

Griffing appeals from the denial of his mid-trial motion to suppress.

 STANDARD OF REVIEW

¶7 We review a district court's denial of a motion to suppress to determine 

whether the

"findings of fact are clearly erroneous, and whether those findings were correctly 

applied as

a matter of law." State v. Greywater (1997), 282 Mont. 28, 36, 939 P.2d 975, 980 

(citation

omitted). The district court's determination that a motion to suppress is untimely 

is a

conclusion of law. See Greywater, 939 P.2d at 980. We review a district court's 

conclusions

of law to determine whether they are correct. Greywater, 939 P.2d at 980 (citation 

omitted). 

 DISCUSSION

¶8 Did the District Court err in denying Griffing's mid-trial motion to suppress?

¶9 Griffing's motion to suppress all of the evidence was premised on his 

contentions that

he was subjected to a custodial interrogation by Officer Johnston prior to being 

advised of

his Miranda rights and that all subsequent evidence was fruit of the poisonous 

tree. The

State argued that the motion was untimely and, in any event, not well taken as a 

matter of

law. The District Court accepted the State's arguments--apparently including the 

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timeliness

argument--and, in addition, observed that some of the reasons in its earlier order 

denying

Griffing's motion to suppress applied and that it was unaware of any authority 

requiring

officers to give Miranda warnings during the investigation of a traffic accident. 

Griffing

contends that the District Court erred. He does not address the timeliness of his 

motion to

suppress, however, and we conclude that his motion was untimely and, therefore, 

waived.

¶10 Section 46-13-101(1), MCA, generally requires that "any defense, objection, or

request that is capable of determination without trial of the general issue must be 

raised at

or before the omnibus hearing unless otherwise provided by Title 46." Motions to 

suppress

expressly are among those pretrial matters which must be raised at or before the 

omnibus

hearing. Section 46-13-110(3)(i), MCA; Greywater, 939 P.2d at 980. A party's 

failure to

raise matters which are capable of determination without trial and required to be 

raised at or

before the omnibus hearing constitutes a waiver. Section 46-13-101(2), MCA.

¶11 Moreover, we consistently have affirmed a district court's denial of an untimely

motion to suppress under both current and predecessor statutes setting time 

requirements for

such motions. See, e.g., Greywater, 939 P.2d at 980; State v. Hart (1982), 200 

Mont. 185,

191, 650 P.2d 768, 772; State v. Briner (1977), 173 Mont. 185, 190, 567 P.2d 35, 38. 

Indeed, we recently held in Greywater that the defendant's motion, filed five days 

prior to

trial, was untimely and upheld the district court's refusal to consider the motion. 

Greywater,

939 P.2d at 980.

¶12 Here, the omnibus hearing memorandum was filed June 4, 1996. It specifically

indicated that Griffing would file motions to suppress his confession or admissions 

and

physical evidence pursuant to §§ 46-13-301 and 46-13-302, MCA, respectively, by July 

1,

1996. He filed only the motion to suppress the breathalyzer test result, discussed 

above, on

the basis that his consent to the test was coerced. He did not move to suppress his 

statements

to Officer Johnston and all evidence obtained thereafter. That motion was made 

during the

course of trial. As a result, it was untimely and, pursuant to § 46-13-101(2), MCA, 

waived. 

We hold, therefore, that the District Court did not err in denying Griffing's midtrial motion

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to suppress. 

¶13 Affirmed.

 /S/ KARLA M. GRAY

We concur:

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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