No. 96-048 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1996

RICKY LAWRENCEWESSELL,

Petitioner andAppellant,

v. STATE OFMONTANA, DEPARTMENTOF JUSTICE, MOTORVEHICLE DIVISION,

Respondent and Respondent.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Dawson, The Honorable Dale Cox, Judge presiding.

COUNSELOFRECORD:

For Appellant: Kevin R. Peterson, Simonton, Howe&Schneider, Glendive, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena, Montana Richard L. Burns, Glendive City Attorney, Glendive, Montana

Filed: Submitted onBriefs: May30, 1996 Decided: July 11, 1996

CllerkJustice Charles E. Erdmann delivered the opinion of the Court.

Ricky Lawrence Wessell's driver's license was seized and his driving privileges were suspended pursuant to 5 61-E-402, MCA, Montana's implied consent law. Wessell petitioned the District Court for the Seventh Judicial District, Dawson County, to reinstate his license on the grounds that it was wrongly seized. The District Court denied the petition. Wereverse. The issue onappeal is whether the District Court erred when it concluded that Wessell had refused to submit to a test for alcohol and therefore denied his petition challenging the suspension of his driving privileges pursuant to 561-E-402, MCA. FACTS OnNovember 20, 1995, Wessell wasstopped byaGlendive police officer for suspicion of driving under the influence of drugs or alcohol, in violation of §61-E-401, MCA, after having crossed the center line of the street with his vehicle. Wessell consented to the field sobriety tests which were performed. Hewas then placed under arrest and transported to the Glendive Police Department for

abreath, blood, or urine test pursuant to §61-S-402, MCA. Upon arriving at the police station, Wessell was read the Montana Department of Justice Implied Consent Advisory and was asked to submit to abreath test. Wessell consented to the breath test. The officer began the test sequence but was unable to complete the test because the internal standards check for the instrument failed. The officer attempted a second breath test, however, the standards check for the instrument failed again. 2

### Wessell cooperated with the officer in attempting to take the

breath test. Wessell wasthen asked to submit to ablood test but stated that he was unable to submit to this method of testing. He explained to the officer that hehadagreat fear of needles which precluded him from taking the blood test. Wessell instead voluntarily offered to submit toaurine test. Theofficer refused this offer explaining that aurine test wasnot anoption because the Glendive Police Department did not havethe appropriate means to maintain the integrity of aurine testing sample. Wessell declined the option to have an independent test completed because as he understood the procedure his driving privileges would besuspended regardless asaresult of his failure to submit to the designated blood test. Theofficer completed the State of MontanaAlcohol/Drug Testing Refusal Affidavit indicating that Wessell hadrefused abreath, blood, orurine test pursuant to §61-8-402, MCA,andseized his driver's license. Wessell filed apetition with the District Court challenging the suspension of his driving privileges. The District Court ordered the Montana Department of Justice, Motor Vehicle Division to reinstate his driving privileges pending the outcome of a hearing onhis petition. At the hearing, the parties stipulated that there were no questions as to what factually occurred, including the fact that Wessell had expressed agreat fear of needles. TheDistrict Court heard sworn testimony from the police officer and from Wessell himself. The Court then issued its 3findings of fact, conclusions of law, and order which concluded

that Wessell's driver's license wasproperly subject to suspension and vacated the prior reinstatement of his driving privileges. Wessell appeals the denial of his petition. DISCUSSION Did the District Court err when it concluded that Wessell had refused to submit to atest for alcohol andin denying his petition challenging the suspension of his driving privileges, pursuant to §61-8-402, MCA? There was no factual dispute that Wessell did not take the blood test. The issue before the District Court was whether Wessell's conduct constituted a "refusal" under §61-E-402, MCA, and was therefore alegal issue. Wereview conclusions of law to determine whether the district court's interpretation of the law

was correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. Section 61-8-402, MCA,commonly known asthe implied consent statute, provides in part as follows:

(1) Aperson whooperates or is in actual physical control of avehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person's blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or acombination of the two. The test or tests must be administered at the direction of apeace officer

. . . . The arresting officer may designate which test or tests are administered. Atest for alcohol must begiven first, whether or not that test also tests

4

### for drugs, andif thetest showsanalcohol concentration

of 0.10 or more, atest for drugs maynot begiven. i3i

. . If a driver under arrest refuses upon the request of apeaceofficer to submit to atest or tests designated by the arresting officer as provided in subsection Cl), atest maynot begiven, but the officer shall, onbehalf ofthedepartment, immediately seize the person's driver's license

. . . . Wessell first argues that his petition should have been granted because heconsented to the breath test. Heclaims that the statute is disjunctive anddoes not expressly authorize more 

### than onetest for alcohol towhich hegavehis consent. TheState asserts, however, that the language "test or tests" allows consecutive tests for alcohol andthat Wessell refused to submit to the alternate blood test. Wehave held that our function as anappeals court is to ascertain what the Legislature meant andto dothat, if possible, by looking to the plain meaning of the words in the statute. Strzelczyk v. Jett (1994), 264 Mont. 153, 157, 870 P.2d 730, 732-33. The"test ortests" language wasadopted bythe Legislature in 1993whenit included the provision allowing atest for drugs once analcohol test hasbeengiven if the alcohol concentration is less than 0.10. This amendment changed the testing language from singular toplural, asit authorized asecondtest for the presence of drugs. Thesingular nature of the language, asto atest for alcohol, wasnot changedandthe statute still provides that, I'm test for alcohol mustbegiven first, whether or not that test also tests for drugs, andif the test showsanalcohol concentration of 50.10 or more, [then] atest for drugs maynot begiven." Section

61-E-402, MCA (emphasis added). Wedetermine that the "test or tests" language adopted bythe Legislature at the time it added the allowance for a drug test refers to the sequential testing for alcohol and then drugs and not for consecutive tests for alcohol alone.Under the plain language of the statute, therefore, only one test for alcohol may be given. However, this limitation must be considered in light of the definition of "test" as set forth in Rule 23.4.201(31), ARM, which provides that a"test" for purposes of drug and alcohol analysis must beafull andcomplete analysis. Theanalysis for abreath test is considered complete when abreath sample is properly delivered, "the breath analysis instrument has executed its prescribed program, afinal result is obtained, and a printed record is produced by the breath test instrument." Rule 23.4.201(31), ARM. The test for other biological samples (i.e., blood and urine) is also defined as a full and complete analysis of the sample(s). Rule 23.4.201(31), ARM. Section 61-8-402, MCA,clearly contemplates that atest for alcohol must be

acomplete analysis by its language requiring the results of the alcohol test, "if the test shows analcohol concentration of 0.10

or more, atest for drugs maynot begiven." Under the above definition, afull and complete analysis was not achieved and therefore avalid breath test did not exist. The officer waswithin the statutory constraints when hedesignated a second method of testing in order to achieve atest for alcohol. 6Wessell next asserts that his refusal should be excused

because although he did not submit to the blood test he fully cooperated with the officer and was unable to participate in the test as aresult of adisability. The State argues that neither §61-8-402, MCA, nor 5 61-8-403, MCA, provides the means to disregard amotorist's refusal to submit to atest asdesignated by the officer. Wehave previously stated that the purpose of §61-8-402, MCA, is to encourage the person arrested for DUIto cooperate andsubmit to testing. Johnson v. Division of Motor Vehicles (1985), 219 Mont. 310, 313, 711P.2d 815, 817; State v. Christopherson (1985), 217 Mont. 449, 451, 705 P.2d 121, 123. This statute serves the state's interest in obtaining reliable and relevant evidence for

use in subsequent criminal proceedings. We have held that certain uncooperative actions by the motorist may comprise arefusal. Arefusal to take ablood test does not have to beexpress but maybeimplied, for example from an individual failing to cooperate by repeatedly requesting an attorney to be present prior to the test. Johnson, 711 P.2d at 817. It mayalso arise from alack of cooperation when amotorist gives adeficient performance of arequested test whenheor she is capable of completing the test. Hunter v. State (1994), 264Mont. 84, 869 P.2d 787. In the present case it is clear that Wessell's actions were fully cooperative. Wessell consented to the breath testing procedure for alcohol and was cooperative twice in attempting to 7achieve a valid test through the means provided. It is not

Wessell's fault that the machine failed to operate properly. Wessell, when asked to submit to a blood test, immediately explained that hewasunable to participate in this test because of his extreme fear of needles but was willing to submit to aurine test. Heargues that where anindividual has fully cooperated but

wasunable to participate in atest that refusal should beexcused. Thus Wessell argues that the state of mind or motive of the individual asked to submit to testing is arelevant factor for the district court to consider when determining if the refusal should be excused. Wessell cites Matter of Griffiths (Idaho 1987), 744 P.2d 92, to support his assertion that an individual's fear of needles maybegrounds for refusing ablood test. The Griffiths decision, interpreting Idaho's implied consent statute, is distinguishable from the present case. Idaho's implied consent statute specifically provides for ahearing if requested by the motorist following the seizure of their license for refusal to submit to testing to determine "why" the test was refused. Idaho Code §18-8002(4) (1984). This statute sets forth that adefendant may have his license reinstated if he can prove any of several factors listed, including "that, although defendant refused the requested evidentiary test, he did so with sufficient cause." Idaho Code §18-8002 (1984). The Idaho Supreme Court, in applying this statute, held that if afear of needles is of such magnitude to prevent the motorist as apractical matter from submitting to the test and this fear is communicated to the officer at the time 8of the test then there may exist sufficient cause to refuse the

test. Griffiths, 744 P.2d at 100. Section 61-E-403, MCA,however, provides for ahearing only to determine "whether

. . .the motorist refused the test." It does not have aspecific provision for inquiring as to why the refusal occurred or for excusing the refusal if there was sufficient cause to refuse. Although the statute does not provide the district court with the discretion to determine if there was sufficient
cause for an individual to refuse the test, it does allow the district court to take testimony andexamine the facts of the case to determine whether the officer waswrong in concluding that there

wasarefusal to submit to atest. Section 61-8-403(4), MCA. This section allows the district court the latitude to consider whether the individual waswilling but unable to participate in the test as
a result of a disability or whether the individual was simply unwilling to cooperate and refused the test. Werecently addressed §61-8-403(4), MCA, in Hunter, 869 P.2d 787. In that case, westated that the burden of proving that the officer was wrong in concluding that the petitioner refused to submit to the test wasthat of the petitioner. Hunter, 869 P.2d at 789. SeeSection 26-l-401, MCA. Hunter consented to submitting to
abreath test. After five or six failed attempts in which she did not blow hard enough to activate the machine the officer proceeded to conduct other sobriety tests. Whenthey returned to the breath test she stated that she had performed enough tests and would not make another attempt. The officer thus determined that she had 9refused the test and seized her license. Weheld that Hunter

failed to meet her burden of proof as she did not inform the officer at the time of the test of any disability which prevented her from completing avalid test, nor did she introduce anymedical evidence at the hearing to indicate that shewasunable to perform. Hunter, 869 P.2d at 789-90. In the present case, it was not contested that Wessell had a valid fear of needles which prevented him from being able to submit to ablood test and therefore weaccept this as stipulated. The record shows that hewaswilling to consent to atest for alcohol but was prevented from doing so by apsychological inability to perform resulting from his disabling fear of needles, which he immediately disclosed to the officer. Wedetermine that under the facts of this case, this psychological inability to perform the test is the equivalent of aphysical disability which precludes an individual from participating in or completing a valid test regardless of their willingness. For example, if anindividual has asthma and was physically unable to complete abreath test, that inability would not be considered a refusal under §61-8-403(4), MCA, and our rationale in Hunter. The conclusion of the District Court that Wessell refused the test was based upon the officer's testimony, the Implied Consent Advisory Form signed bythe officer, andthe petitioner's testimony that he did not submit to the blood test. The record also shows that Wessell cooperated to his fullest physical and mental abilities but was precluded from participating in the test as a 10result of astipulated psychological inability, which in this case

constitutes adisability. Wehold that the District Court erred in its interpretation of 5 61-8-403(4), MCA, by concluding that Wessell's inability to participate in the test regardless of his willingness was a"refusal." Reversed and remanded for further proceedings consistent with this opinion.

< Justice

Weconcur:

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