No. 96-048 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

RICKY LAWRENCE WESSELL, 

Petitioner and Appellant, 

v. 

STATE OF MONTANA, DEPARTMENT OF 

JUSTICE, MOTOR VEHICLE 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. 

COUNSEL OF RECORD: 

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 on Briefs: May 30, 1996 

Decided: July 11, 1996 

Cllerk 
Justice 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. We reverse. 

The issue on appeal 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 5 61-E-402, MCA. 

FACTS 

On November 20, 1995, Wessell was stopped by a Glendive 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. He was then placed 

under arrest and transported to the Glendive Police Department for 

a breath, 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 a breath 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. 

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Wessell cooperated with the officer in attempting to take the 

breath test. 

Wessell was then asked to submit to a blood test but stated 

that he was unable to submit to this method of testing. He 

explained to the officer that he had a great fear of needles which 

precluded him from taking the blood test. Wessell instead 

voluntarily offered to submit to a urine test. The officer refused 

this offer explaining that a urine test was not an option because 

the Glendive Police Department did not have the appropriate means 

to maintain the integrity of a urine testing sample. 

Wessell declined the option to have an independent test 

completed because as he understood the procedure his driving 

privileges would be suspended regardless as a result of his failure 

to submit to the designated blood test. The officer completed the 

State of Montana Alcohol/Drug Testing Refusal Affidavit indicating 

that Wessell had refused a breath, blood, or urine test pursuant to 

§ 61-8-402, MCA, and seized his driver's license. 

Wessell filed a petition 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 on his petition. At the hearing, the parties stipulated 

that there were no questions as to what factually occurred, 

including the fact that Wessell had expressed a great fear of 

needles. The District Court heard sworn testimony from the police 

officer and from Wessell himself. The Court then issued its 

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findings of fact, conclusions of law, and order which concluded 

that Wessell's driver's license was properly 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 a test for alcohol and in 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 a legal issue. We review 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 as the implied consent 

statute, provides in part as follows: 

(1) A person who operates or is in actual physical 

control of a vehicle 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 a combination of the two. The test or 

tests must be administered at the direction of a peace 

officer . . . . The arresting officer may designate 

which test or tests are administered. A test for alcohol 

must be given first, whether or not that test also tests 

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for drugs, and if the test shows an alcohol concentration 

of 0.10 or more, a test for drugs may not be given. 

i3i . If . a driver under arrest refuses upon the 

request of a peace officer to submit to a test or tests 

designated by the arresting officer as provided in 

subsection Cl), a test may not be given, but the officer 

shall, on behalf of the department, immediately seize the 

person's driver's license . . . . 

Wessell first argues that his petition should have been 

granted because he consented to the breath test. He claims that 

the statute is disjunctive and does not expressly authorize more 

than one test for alcohol to which he gave his consent. The State 

asserts, however, that the language "test or tests" allows 

consecutive tests for alcohol and that Wessell refused to submit to 

the alternate blood test. 

We have held that our function as an appeals court is to 

ascertain what the Legislature meant and to do that, 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 or tests" language was adopted by the Legislature in 

1993 when it included the provision allowing a test for drugs once 

an alcohol test has been given if the alcohol concentration is less 

than 0.10. This amendment changed the testing language from 

singular to plural, as it authorized a second test for the presence 

of drugs. The singular nature of the language, as to a test for 

alcohol, was not changed and the statute still provides that, I'm 

test for alcohol must be given first, whether or not that test also 

tests for drugs, and if the test shows an alcohol concentration of 

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0.10 or more, [then] a test for drugs may not be given." Section 

61-E-402, MCA (emphasis added). We determine that the "test or 

tests" language adopted by the 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 be a full and complete analysis. 

The analysis for a breath test is considered complete when a breath 

sample is properly delivered, "the breath analysis instrument has 

executed its prescribed program, a final 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 a test for alcohol must be 

a complete analysis by its language requiring the results of the 

alcohol test, "if the test shows an alcohol concentration of 0.10 

or more, a test for drugs may not be given." 

Under the above definition, a full and complete analysis was 

not achieved and therefore a valid breath test did not exist. The 

officer was within the statutory constraints when he designated a 

second method of testing in order to achieve a test for alcohol. 

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Wessell 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 a result of a disability. The State argues that neither 

§ 61-8-402, MCA, nor 5 61-8-403, MCA, provides the means to 

disregard a motorist's refusal to submit to a test as designated by 

the officer. 

We have previously stated that the purpose of § 61-8-402, MCA, 

is to encourage the person arrested for DUI to cooperate and submit 

to testing. Johnson v. Division of Motor Vehicles (1985), 219 

Mont. 310, 313, 711 P.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 a refusal. A refusal to take a blood test 

does not have to be express but may be implied, 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 may also arise from a lack of cooperation when a motorist 

gives a deficient performance of a requested test when he or she is 

capable of completing the test. Hunter v. State (1994), 264 Mont. 

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 

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achieve 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 he was unable to participate in this test because of 

his extreme fear of needles but was willing to submit to a urine 

test. He argues that where an individual has fully cooperated but 

was unable to participate in a test that refusal should be excused. 

Thus Wessell argues that the state of mind or motive of the 

individual asked to submit to testing is a relevant 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 may be grounds for refusing a blood test. 

The Griffiths decision, interpreting Idaho's implied consent 

statute, is distinguishable from the present case. Idaho's implied 

consent statute specifically provides for a hearing 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 a defendant 

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 a fear of needles is of such magnitude 

to prevent the motorist as a practical matter from submitting to 

the test and this fear is communicated to the officer at the time 

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of 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 a hearing only to 

determine "whether . . . the motorist refused the test." It does 

not have a specific 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 and examine the facts of the case 

to determine whether the officer was wrong in concluding that there 

was a refusal to submit to a test. Section 61-8-403(4), MCA. This 

section allows the district court the latitude to consider whether 

the individual was willing 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. 

We recently addressed § 61-8-403(4), MCA, in Hunter, 869 P.2d 

787. In that case, we stated that the burden of proving that the 

officer was wrong in concluding that the petitioner refused to 

submit to the test was that of the petitioner. Hunter, 869 P.2d at 

789. See Section 26-l-401, MCA. Hunter consented to submitting to 

a breath 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. When they 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 

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refused the test and seized her license. We held 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 a valid test, nor did she introduce any medical 

evidence at the hearing to indicate that she was unable 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 a blood test and therefore we accept this as stipulated. The 

record shows that he was willing to consent to a test for alcohol 

but was prevented from doing so by a psychological inability to 

perform resulting from his disabling fear of needles, which he 

immediately disclosed to the officer. We determine that under the 

facts of this case, this psychological inability to perform the 

test is the equivalent of a physical disability which precludes an 

individual from participating in or completing a valid test 

regardless of their willingness. For example, if an individual has 

asthma and was physically unable to complete a breath 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 by the officer, and the 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 

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result of a stipulated psychological inability, which in this case 

constitutes a disability. We hold 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 

We concur: 

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