NO. 83-162 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsARTHUR LEROY IJIAGNUSON, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mary Kay Wheeler, 3rd Yr. Law Student, introduced 

by James McLean, Asst. Atty. General, argued for the 

State 

John L. Pratt, County Attorney, Roundup, Montana 

For Respondent : 

Kathryn R. Baylis argued, Roundup, Plontana 

Submitted: March 2, 1984 

Decided: June 12, 1984 

Filed: AN 1 2 1984 

-- Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The State of Montana appeals from an order of the 

District Court, Fourteenth Judicial District, Musselshell 

County, dismissing a charge of operating a motor vehicle 

while under the in£ luence of intoxicating liquor against the 

defendant, Arthur Leroy Magnuson. We reverse. 

On the afternoon of July 29, 1982, Magnuson became 

intoxicated and drove away from the Kee Angus Ranch 

in Musselshell County in his blue Ford Bronco. Before he 

left he had been confronted by Mary Kee, a friend, who knew 

he had been drinking. Mary Kee had attempted to persuade 

Magnuson not to drive and had taken the keys to his Bronco. 

Magnuson found another set of keys and left the ranch. 

Kee, concerned that Magnuson was driving while 

intoxicated, called the Sheriff's Office, hoping to speak 

with Sheriff Brian Neidhardt, a friend of ~eeg. As Sheriff 

Neidhardt was not there Kee called the Alcoholics Anonymous 

number listed in the local newspaper. Kee spoke with Mac 

House, the director of the Musselshell County Drug and 

Alcohol Program. Kee did not know that Magnuson was in 

treatment with Mac House at that time and had never spoken 

with Mac House prior to the phone call. Kee told House 

about the problem and the two of them agreed to let matters 

take their course. 

After receiving Keels phone call, House discussed the 

situation with Undersheriff Floyd Ray Fisher. House advised 

Undersheriff Fisher that Magnuson was intoxicated and was 

driving his Bronco. Undersheriff Fisher later testified 

that he had seen the vehicle around town at a few of the 
different bars, and that after House described the vehicle 

to him, he remembered the vehicle. House also advised 

Undersheriff Fisher that Magnusons's usual hangout was 

Tracy's Bar. Undersheriff Fisher asked House if he wanted 

to accompany him and the two of them got into Fisher's 

vehicle. 

As Fisher drove toward Tracy's Bar, he and House saw 

Magnuson's vehicle coming in the opposite direction on 

Highway 87. Fisher later testified that Magnuson had 

"approximately a quarter to almost half of his vehicle in my 

lane of traffic." As Fisher followed Magnuson, "he turned 

his right hand blinker on to make a right hand turn, and 

then made a left hand turn." After Fisher stopped Magnuson 

he approached the vehicle and when Magnuson opened the door 

of his vehicle, Fisher "could smell alcohol, a very strong 

odor of alcohol." When Fisher asked Magnuson to step out 

of the vehicle Magnuson "had to take hold of the door to 

keep from falling to the ground." When Fisher asked 

Magnuson to say the alphabet he could only make it as far as 

G. When Fisher asked Magnuson if he could walk a straight 

line, heel to toe, Magnuson "had to take several steps 

sideways to keep from falling down." Fisher then arrested 

Magnuson and advised him of his Miranda rights. 

Based upon the affidavit of the county attorney, the 

District Court granted a motion for leave to file an 

information against Magnuson charging him with violating 

Section 61-8-401, MCA, driving while under the influence of 

intoxicating liquor. The county attorney's affidavit 

indicated that a teletype report on Magnuson showed four 

prior convictions for driving while under the influence in 
Iowa between January 17, 1980 and May 26, 1981. 

The issue to be resolved by this Court concerns the 

effect of federal statutes and regulations upon a state 

criminal prosecution for driving under the influence. The 

federal statutes and regulations require that patient 

records maintained in connection with the performance of any 

program or activity related to alcohol abuse treatment 

remain confidential. The State concedes that the 

Musselshell County Drug and Alcohol Program is federally 

funded and the record shows that Magnuson had been attending 

counseling sessions with Mac House for approximately six 

weeks before he was arrested. 

On motion of the defendant to dismiss, the District 

Court found "that the information provided by . . . Mac 

House to . . . Fisher. . . was tainted within the 

prohibition" of Title 42 U.S.C.A. Sections 4582(a) and (c) 

and 42 C.F.R. Section 2.11(0). As a result, the District 

Court dismissed the driving while intoxicated charge against 

Magnuson and the State appealed. 

The first issue is whether Title 42 U.S.C.A. Section 

4582 applies to the information House provided Undersher if f 

Fisher concerning the fact that Magnuson was driving while 

intoxicated. 

The federal statutes involved in this case are as 

follows: 

"Records of the identity, diagnosis, 

prognosis, or treatment of any patient 

which are maintained in connection with 

the performance of any program or 

activity relating to alcoholism or 

alcohol abuse education, training, 

treatment, rehabilitation, or research, 

which is conducted, regulated, or 

directly or indirectly assisted by any 

department or agency of the United States 
shall, except as provided in subsection 

(e) be confidential and be disclosed only 

for the purposes and under the 

circumstances expressly authorized under 

subsection (b) of this section. 4 2 

U.S.C.A. Section 4582 (a). 

"Except as authorized by a court order 

granted under subsection (b)(2)(c) of 

this section, no record referred to in 

subsection (a) of this section may be 

used to initiate or substantiate anv 

criminal charges against a patient or to 

conduct any investigation of a patient." 

42 U.S.C.A. Section 4582(c) (Emphasis 

added). 

The applicable federal regulations in this case are 

these: 

"Records. The term records' includes 

any information, whether recorded or not, 

relating to a patient, received or 

............................... 

acquired in connection with the 

performance of any alcohol abuse or drug 

abuse prevention function, whether such 

receipt or acquisition is by a program, a 

qualified service organization, or any 

other person. 42 C.F.R. Section 2.11(0). 

(Emphasis added.) 

"Except as provided in paragraph (b) of 

this section, this part applies to 

records of the identity, diagnosis, 

prognosis, or treatment of any patient 

which are maintained in connection with 

the performance of any alcohol abuse or 

drug abuse prevention functions. 42 

C.F.R. Section 2.12 

"(3) Which is assisted by funds supplied 

by any department or agency of the United 

States, whether directly through a grant, 

contract or otherwise, or indirectly by 

funds supplied to a State or local 

government unit through the medium of 

contracts, grants of any description, 

general or special revenue sharing, or 

otherwise . . . 42 C.F.R. Section 

21.12(a)(3). 

"The term 'alcohol abuse or drug abuse 

prevention function' means any program or 

activity relating to alcohol abuse or 

drug abuse education, training, 

treatment, rehabilitation, or research . . . " 42 C.F.R. Section 211(k). 
Resolution of the first issue in this case depends 

upon whether the information House communicated to Fisher 

was within the definition of "records" as that term is 

defined in 42 C.F.R. Section 2.1(0). That determination 

depends on whether House was performing an "alcohol abuse or 

drug abuse prevention function" as defined in 42 C.F.R. 

Section 2.11(k) at the time he received the information. 

The information conveyed from House to Fisher was that 

Magnuson was intoxicated;that he was driving a Bronco; that 

House wanted Fisher to watch out for Magnuson; and 

Magnuson's usual hangout. Respondent asserts that part of 

the information conveyed from House to Fisher--information 

about the kind of car Magnuson would be driving, as well as 

his usual hangout--came from the client-counselor 

relationship. However, Undersheriff Fisher testified that 

after House described Magnuson's vehicle he remembered it 

because he had observed it at some of the local bars on 

prior occasions. 

If the information was within the prohibition of the 

federal legislation it must be ". . . received or acquired 

in connection with the performance of any alcohol abuse or 

drug abuse prevention function." Alcohol abuse prevention 

function means ". . . any program or activity relating to 

alcohol abuse . . . education, training, treatment, 

rehabilitation, or research." The issue thus becomes: was 

House involved in a program or activity related to alcohol 

abuse education, training, treatment, rehabilitation or 

research at the time he received the information from Mary 

Ree? Clearly he was not, and the information does not fall 

within the scope of the federal legislation. 
In addition, the federal legislation does not apply in 

this case because the information received by Undersheriff 

Fisher from House was not used to "initiate or substantiate 

any criminal charges" against Magnuson. See 42 U.S.C.A. 

Section 4582(c). The arresting officer testified that the 

basis for Magnuson's arrest was not the information received 

from House but, rather, his observations of Magnuson weaving 

down the highway, exiting the car with difficulty, smelling 

of alcohol and failing basic sobriety tests. 

Next, the State argues that suppression of the 

evidence was an erroneous remedy for violating the federal 

statute because the proper remedy under Title 42 U.S.C.A. 

Section 4582 is a fine. 

Title 42 U.S.C.A. Section 4582(f), provides: " [alny 

person who violates any provision of this section or any 

regulation issued pursuant to this section shall be fined 

not more than $500 in the case of a first offense, and not 

more than $5,000 in the case of each subsequent offense." 

In making its decision, the District Court stated ". . . from the evidence presented that the information provided 

by alcohol and drug abuse counselor Mac House to Deputy 

Sheriff Floyd Fisher, leading to the arrest of the 

Defendant, was tainted within the prohibition of [the 

federal statutes]." However, when 42 U.S.C.A. Section 4582 

is read as a whole, it is clear that the remedy Congress 

intended for a violation of one of its confidentiality 

provisions is a fine as provided in 42 U.S.C.A. Section 

4582(f). Rules of statutory construction dictate that 

legislation must be read as a whole in order to ascertain 

legislative intent. Wynia v. City of Great Falls (1979), 
183 Mont. 458, 600 P.2d 802. The fact that a remedy is 

provided in the legislation indicates that Congress 

considered the possibility of a violation and determined the 

appropriate remedy for that violation. If Congress had 

intended that suppression and dismissal were the appropriate 

remedies for a violation of a confidentiality it would have 

so provided. 

Since the issues previously discussed are dispositive 

of the case we need not consider the other issue raised by 

the State. 

Reversed and remanded for further proceedings in 

accordance with this opinion. 

We concur: 

Chief Justice - . 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

The facts recited in the majority opinion require 

further elaboration. After the telephone conversation with 

Mary Kee, Mac House went out and searched for Undersheriff 

Floyd Fisher, whom he found at the Cattlemen's Restaurant, 

having his dinner at 8:30 p.m. House advised Undersheriff 

Fisher that he had information that Arthur Magnuson was 

intoxicated and was driving his Ford Bronco. In response to 

questions from Fisher, House described the vehicle that 

Magnuson was driving, and from the description Fisher 

remembered the vehicle as he had seen it parked outside of 

bars in the vicinity. House also advised the undersheriff 

that Magnuson's usual hangout was Tracy's Bar. When he had 

finished his dinner, the undersheriff asked House if he would 

"like to take a ride" and the two of them got into Fisher's 

vehicle. As they drove toward Tracy's Bar, they saw 

Magnuson's vehicle coming in the opposite direction on 

Highway 87. Fisher observed that Magnuson ' s vehicle crossed 

the centerline several times and exhibited other signs of 

erratic driving. 

The State concedes that the Musselshell County Drug and 

Alcohol Program is federally funded, and the record shows 

that Magnuson had been attending counseling sessions with Mac 

House for six weeks to two months before the driving charge 

occurred. 

The State first contends that the information received 

by House from Fisher was not the kind of patient information 

which Congress intended to protect. The State has pointed to 

42 C. F. R. 5j 2.11 (0) , which defines records as including 

information "received or acquired in connection with the 
performance of any alcohol or drug abuse prevention 

function." 

The term "record" is very broadly defined in the federal 

regulation. It is not limited to information received from 

the patient alone, but includes "any information" recorded or 

unrecorded, "relating to a patient." 

When Mary Kee used the telephone here looking for help, 

the number that she called was answered by Mac House, from 

the Musselshell Drug and Alcohol office. The information 

which she relayed to him about Magnuson "related to a 

patient. " That information, and the further information 

about Magnuson's usual hangout which apparently Mac House 

also knew, were relayed by him to Undersheriff Fisher. I 

determine that such information is included within the term 

"record" the relaying of which is prohibited by the federal 

regulation. 

It is a close question whether the information conveyed 

by House to Fisher was used to initiate criminal charges 

against Magnuson. It does appear clear from the record that 

while Fisher was investigating Magnuson in the presence and 

with the cooperation of House that the criminal charges were 

initiated, based upon the observations that Fisher made 

during the investigation. 

The State contended and the majority apparently agrees 

that Congress did not intend to create a "sanctuary" for a 

patient from prosecution for its criminal acts. Whatever 

that may mean, it is fully clear that Congress did intend 

that no information regarding a patient should be imparted by 

one who obtained the information in a federally-funded 

program to initiate or substantiate any criminal charges 

against the patient or to conduct any investigation of a 
patient. Here Arthur Magnuson was a patient, and Mac House, 

who was treating him under a federally-funded program used 

confidential information gained through such program to cause 

an investigation to be made of Magnuson. 

As to whether the prohibition against release of 

information under the federally-funded program should be 

balanced with state policy against drunk driving, the line of 

demarcation is obviously hard to draw. Certainly there will 

be instances where the severity of the crime or the danger to 

society will be of such gravity as to require a prosecution 

even though information from such a federal-ly-funded program 

was obtained. What is overweighing in this case, however, is 

not only that Mac House supplied the informa-tion, but then he 

actively participated in the investigation by accompanying 

the deputy to a place where Magnuson could be found. In so 

doing, he abused all the principles of the confidential 

relationship in which he was a paid participant. Certainly 

Congress did not anticipate that kind of use of its 

statutorily-protected information. 

Finally I disagree with the majority that the remedy 

provided in Title 42 U.S.C.A. S 4582 is sufficient to enforce 

the provisions of the confidentiality of information under 

the federal provisions. The majority finds that the remedy 

provided in the federal act is enough for the Congress 

intended no more. 

The answer to that contention is found in reviewing the 

Congressional. reasons for establishj-ng the federally-funded 

project. The object is to attract patients, free from stigma 

and criminal prosecution from what may be revealed by them in 

the course of their treatment. A mere fine against the 

violator of such confidence does not protect the patient 
whose confidence has been abused. It is more by assuring the 

confidentiality of such information in this instance than in 

fining Mac House, that these objectives will be achieved. In 

fact the record is hare in this case that any retributive 

action has been brought against Mac House for his obvious 

violation of the confidential relationship. 

I would determine that the federal statute, with its 

obvious objectives, makes it imperative that we do not 

enforce criminal prosecutions based on information received 

from persons who seek help from alcoholism in 

federally-funded projects. I expressly dissent. 

Mr. Justice Daniel J. Shea dissents, and will file a written 

dissent later.