No. 87-382 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, CITY OF BOZEMAN, 

Plaintiff and Respondent, 

-vsCLIFTON DUANE HETH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jerry Bechhold, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Bruce Becker, City Attorney, Bozeman, Montana 

Submitted on Briefs: Dec. 17, 1987 

Decided: February 9, 1988 

Filed: FEB9 1988' 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from the Eighteenth Judicial District 

Court, Gallatin County. Defendant/appellant, Clifton Duane 

Heth (Heth) was found guilty by the District Court of driving 

under the influence of intoxicants (DUI) as outlined in the 

court's findings of fact and conclusions of law on May 29, 

1987. From this ruling Heth appeals. 

We affirm. 

The only issue is as follows: 

Did the District Court err in not granting Heth's 

motion to dismiss based upon his argument that police 

officers have a responsibility to obtain and preserve 

exculpatory evidence if they have an opportunity to do so? 

This appeal arose out of the conviction of Heth by the 

District Court sitting without a jury. On October 30, 1986, 

Heth was arrested for driving under the influence pursuant to 

5 61-8-401, MCA, after being removed from the 4Bs Restaurant 

(4Bs) in Bozeman, Montana. Appellant Heth incorporated the 

findings of facts of the District Court on this appeal and 

therefore we will accept that rendition of facts. 

Three 4Bs waitresses saw Heth at the restaurant on the 

night of October 30, 1986. They were subpoenaed to testify 

at the District Court hearing but no transcript was submitted 

on this appeal. According to one of the waitresses Heth was 

"[ylelling in a loud manner and attracted attention to 

himself." One of the waitresses knew Heth was not to be in 

the restaurant due to previous misconduct and she telephoned 

the police. This same waitress also believed Heth was 

intoxicated because he slurred his words and had difficulty 

maintaining his balance. All three waitresses believed Heth 
was intoxicated according to the findings of fact of the 

District Court. 

Officers Kerry Bickle and David Krogstad requested that 

Heth leave the 4Bs. At that point, Bickle began recording 

Heth's conversation. After an argument with the police 

officers, Heth left the 4Bs indicating he would walk home, 

leaving his vehicle. 

Officer Bickle returned to the 4Bs parking lot shortly 

thereafter and noticed Heth's vehicle traveling north on 5th 

Street. The officer noted that Heth's vehicle crossed the 

center line of the street a number of times and at one 

intersection, Heth failed to yield to an oncoming vehicle as 

he made a left turn. The officer stopped Heth and requested 

him to perform a number of field sobriety tests which Heth 

completed in an unsatisfactory manner. Conversations during 

this testing were again taped by Bickle. 

Heth was arrested for DUI, read his Miranda rights, and 

taken to the Gallatin County Detention Center for processing. 

Heth, after reading the implied consent form, refused to take 

a blood test to determine his blood alcohol content. 

Thereafter, one of the officers activated a videotape machine 

to film Heth's activities but failed to turn on the volume 

and therefore no sound was recorded. 

Heth claims he was denied due process because the tape 

may have contained exculpatory evidence showing that he did 

not have slurred speech. The District Court concluded that 

Heth was guilty of DUI based on the testimony of the 

waitresses and officers and because Heth was seen driving his 

vehicle after leaving the 4Rs. 

The State offered the audio cassette recorded by Bickle 

which was admitted by the court over defense counsel's 

obi ection. The State also offered the video but it was 
refused by the District Court after objections by defense 

counsel. 

Heth's counsel relies on the case of State v. Swanson 

(Mont. 1986), 722 P.2d 1155, 43 St.Rep. 1329, for the 

proposition that " [plolice have a responsibility to properly 

administer exculpatory evidence when they have an opportunity 

to do so." Heth's counsel argues that Heth was denied use of 

evidence which is generally available to both sides because 

of the Bozeman Police Department's policy of using video 

tapes. Heth claims: 

But for the Police's failure to properly 

administer the video, the Appellant would 

have had sound to said video and thus 

allowed him to present a valid defense to 

the charge of drunk driving. With the 

sound to the video, the Appellant could 

have shown that he did not have slurred 

speech. Further, the sound would have 

tended to establish the Appellant's 

sobriety and his anger with respect to 

the way the Police were handling him. 

The sound would have established the 

rudeness in which the Police treated the 

Appellant. Though Police rudeness is not 

a defense in this case, the video would 

show reasons for Appellant's response. 

On the audio tape recording of the sobriety tests, Heth 

could not count from 90 to 100 and back to 87 correctly. He 

also had difficulty reciting the alphabet. The findings show 

when requested to stand with his left foot in front of his 

right, Heth stood with his right foot in front of his left. 

Heth also had difficulty with the Rhomberg test (feet 

together, head back, eyes closed, used to judge equilibrium) 

and did not complete a one-legged stand test. 

It is clear that Swanson, supra, does not support the 

proposition which Heth's counsel asserts. Swanson involved 

the negligent handling by the police officers of a 
defendant's blood sample that was left unrefrigerated for two 

days. Under Montana law, defendants have a statutory right 

to request separate blood testing to obtain exculpatory 

evidence. 

The person tested may, at his own 

expense, have a physician or registered 

nurse of his own choosing administer a 

test, in addition to any administered at 

the direction of a peace officer, for the 

purpose of determining the amount of 

alcohol in his blood at the time alleged 

as shown by chemical analysis of his 

blood, breath, or urine. 

Section 61-8-405 (2) , MCA. 

There is no question that Swanson stands for the 

proposition that an accused has a constitutional right to 

attempt to obtain exculpatory evidence. Swanson, supra, 722 

P.2d at 1157. However, the case does - not stand for the 

proposition that police officers have to assist in the 

gathering of such evidence. 

Heth argues that police officers have a responsibility 

to properly administer exculpatory evidence when they have an 

opportunity to do so. However, there is a difference between 

"gathering" and "preserving" such evidence. State v. Hayes 

(Idaho 1985), 700 P.2d 959, 964. 

The officers in Swanson failed to properly preserve the 

blood sample taken from the accused. 

[Olnce the sample was taken from Swanson, 

the police had a duty to see to its 

safekeeping . . . [The1 careless handling 

of the sample deprived Swanson of his due 

process right to gather possible 

exculpatory evidence. 

Swanson, 722 P.2d at 1158. 

Heth contends the police in essence were required to 

gather evidence showing that he was not intoxicated by 
engaging the audio on the video tape. There is no question 

that police officers must allow a defendant to obtain a 

separate and independent blood test. But Swanson is limited 

to the actual blood test which is mandated by statute. 

[Plolice officers are not required to 

take the initiative or even to assist in 

procuring any evidence on behalf of a 

defendant which is deemed necessary to 

his defense. [Citations omitted. ] But 

in no event can duly constituted 

authority hamper or interfere with 

efforts on the part of an accused to 

obtain a sampling of his blood, without 

denying to him due process of law. We 

are persuaded to such conclusion in any 

instance where the conduct of the 

authorities, whether through affirmative 

action or by the imposition of their 

rules and regulations, imposes any 

material obstacle in the path of the 

accused. Nor are we impressed that an 

accused, as perhaps in the instant case, 

might have reached his goal by pursuing a 

different course. . . 

While the police have no duty to assist 

an accused in obtaining independent 

evidence of sobriety, they cannot 

frustrate such an effort through either 

affirmative acts or their rules and 

regulations. 

Swanson, 722 P.2d 1157-1158. 

Only a deliberate or intentional suppression of 

exculpatory evidence is a per se violation of due process. 

To amount to a denial of due process, negligently suppressed 

evidence must be vital to the defense. It must be more than a 

mere suppression, in that the defense must show the evidence 

was material and of substantial use. Finally, the evidence 

must be exculpatory meaning it " [wlould have tended to clear 

the accused of guilt, to vitiate a conviction." Brady v. 

Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; 
State v. Patterson (1983), 203 Mont. 509, 512-513, 662 P.2d 

291, 293. Heth has not shown that the video sound was vital 

to his defense especially in light of the audio tape that 

Bickle recorded. The tape made by Bickle does not provide 

Heth with any exculpating evidence. Although the video's 

audio may have been substantially used by defense counsel, we 

cannot agree that it would have been exculpatory. 

The administration of a video and audio test, just as 

in Hayes, supra, falls into the category of gathering 

evidence. Police officers do not have an affirmative duty to 

search out favorable evidence for the defendant as the State 

has appropriately pointed out. State v. Ames (1daho 19851, 

707 P.2d 484, 486; People v. Moore (Colo. 1985), 701 P.2d 

The defendant was not denied due process under Brady or 

Swanson. Police officers may not frustrate or hamper a 

defendant's right to obtain exculpatory evidence but they 

have no affirmative duty to gather such evidence absent 

4' 

express statutory mandate. 4 

/' 

Affirmed . 

Justice 1 

We concur: n 

Justices