No. 83-134 INTHE SUPREMECOURTOF THE STATEOF MOEJTANA 1984

STATEOF MONTANA, Plaintiff and Respondent,

STEVENT. THOMPSON, DefendantandAppellant.

APPEAL FROM: District Courtof the Fourth Judicial District, Inand for the County of Missoula, TheHonorable Jack L. Green, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Goldman & Goldman; Bernard J. Goldman argued, Missoula,Montana

For Respondent: Mike Greely,Attorney General, Helena,Montana ChrisTweetenaruged,Asst. Atty. General, Helena RobertL. Deschamps,111,CountyAttorney, Missoula Montana

Submitted: October 24, 1983 Decided: January 12, 1984

Filed: 

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ClerkMr. Justice L.C. Gulbrandson delivered the Opinion of the Court.Appellant was convicted of negligent homicide after a jury trial held before the Honorable Jack L. Green. From this verdict,appeal istaken. On March 6, 1982, appellant was driving west on interstate 90 near East Missoula, Montana, when he was involved in a collision. Appellant's vehicle struck the

rear end of a vehicle driven by Noah Hatton in which his wife, SylviaHatton,was thepassenger. At the scene of the accident, appellant was placed under arrest for driving under the influence of alcohol in violation of Section 61-8-401, MCA. He was then transported to Missoula Community Hospital for treatment of minor injuries suffered in the accident. While appellant was receiving treatment, a Montana Highway Patrol officer solicited and received permission from the attending physician to talk with appellant. The officer informed appellant of his Miranda rights and his rights under Montana's "imp1ied consent" law, Section 51-8-402, MCA. The officer then requested appellant to allow the medical staff to draw a blood sample, and appellant refused. Section 61-8-402(3), MCA,provides that, "If a resident driver under arrest, refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as wrovided in subsection (1) of this Gection, none shall be given, but the officer shall, on behalf of thedivision, immediately seize his driver's license." (emphasissupplied) The officerdid not seize appellant'sdriver's license.Confronted with this refusal, the officer instead contacted the office of the Missoula County Attorney for advice. He was informed that Sylvia Hatton, who had been taken to another hospital, had died asa result of injuries received in the collision. He was advised that since appellant now was a suspect in a negligent homicide, the implied consent law was inapplicable. The officer returned to appellant's room and informed him that Mrs. Hatton had died, that since he was now a suspect in a negligent homicide, the implied consent law did not apply and that a blood sample was needed. Though appellant apparently did not "consent," a blood sample was drawn and analyzed. Appellant's blood alcohol levelwas .12%. On September 10, 1982, appellant moved the District Court to suppress the results of the blood test on the grounds that the blood sample had been drawn against his will in violation of the implied consent law. Briefs were submitted and the motion was argued orally before the Honorable Jack L. Green. The court found thaton the facts outlinedabove theimplied consentlawdid notapplybecause appellant was a suspect ina negligent homicide. The court further found that theblood samplewas taken incompliance with the Fourth and Fourteenth Amendments of the United States Constitution, and Article 11, section 11 of the Montana Constitution. Since it was not an unreasonable searchand seizure, themotion tosuppresswas denied. A jury trialwas held, duringwhich theresultsof the blood test were admitted into evidence. The jury found appellant guilty of negligent homicide. This appeal follows.The sole issue raised on appeal is whether the prohibition against non consensual extractions of blood samples in Section 61-8-402, MCA, applies to prosecutions for negligent homicide, and this issue is dispositive. Appellant has not challenged the action taken below on constitutional grounds. We have previously held that blood samples drawn in violation of the statute are inadmissable in prosecutions for driving under the influence of intoxicating liquor. State v. Mangels (1975), 166 Mont. 190, 531 P.2d 1313. Therefore if Section 61-8-402 applies to negligent homicide prosecutions, the results of the blood test should not have been admitted into evidence and the motion to suppress should have been granted. The State has graciously conceded this point. It is urged by appellant that Section 61-8-402, MCA, be applied to persons arrested for negligent homicide, despite the operative language of the statute that engages its provisions, "[I]£ (the suspect is) arrested by a peace officer for driving or in actual physical control of a motor vehicle while under the influence of alcohol." The District Court relied on this language inholding that the statutedid not applyhere. Appellant contends that this Court previously ruled that the statute does apply to negligent homicide prosecutions in State

### v. Morgan (Mont. 1982), 646P.2d 1177, 39 St.Rep. 1072. In Morgan, the defendant was involved in an automobile accident where two people died instantly. When the investigating officer interviewed the defendant at the hospital it was his opinion that the defendant was incoherent and could not have communicated a wish that a blood sample notbe drawn. The officer concluded that sincethe defendant was in such a state, pursuant to Section 61-8-402(2), itwas unnecessary toobtainconsentbefore the blood was extracted. The question presented to this court

was whether defendantwas insuch an incoherent stateas to be unable torespond toa request for a blood sample, thus engaging the provisions of subsection (2) of the implied consent statute. Wedidnotexpresslyrulethatthe implied consent law applied thereasthatquestionwasnot raised by defense counsel. We did rule that its provisions had been complied with. In spite of appellant's assertions to the contrary, the Morgan case isnot dispositiveof the caseatbar. The issuepresented there is not the same asis presented here,

even though this Court seemingly presumed that the statute applied. Morgan dealt strictlywith the internal workings of the statute, and did not deal with its applicability. "What is not inissue is notdecided." Sullivanv. Anselmo Mining Corp. et. al. (1928), 82Mont. 543 at555, 268 P. 495 at500, citing Pue v. Wheeler (1927), 78 Mont. 516, 255 P. 1043. As the issue was not decided, the case is not authority for appellant's position. Martien v. Porter (1923),68Mont. 458, 219 P. 817. We find that Section 61-8-402 does not apply to negligent homicide prosecutions. This conclusion is based

on three considerations. Firstwe consider the legislative intent. "Legislative intent must firstbe determined from theplainmeaning of thewords used; and if the language is plain, unambiguous, direct and certain, the statute speaks for itself." Cristv. Segna (Mont. 1981), 622 P.2d 1028 at 1029, 38 St.Rep. 150 at 152, citingDunphy v. Anaconda Co.(1968), 151 Mont. 76, 438 P.2d 660. The language 

### of the statute and an examination of the statutory scheme of Title 61,Chapter 8,part 4 plainly show that application of the implied consent law to negligent homicide cases was not within the legislature's contemplation. The operative language of Section 61-8-402 reads, "Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer fordriving or in actual physical control of a motor vehicle while under the influence of

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### - alcohol." (emphasissupplied) The underlined passage above makes it clear that the protections afforded therearenot engaged until there isan arrest for driving under the influence. (But,see State v. Campbell (Mont. 1980), 615 P.2d 190, 37 St.Rep. 1337,where

we held that an arrest is not always a prerequisite to administration of a blood alcohol test.) Not only is the section specifically premised on such an arrest, but it is made subject to the section of the code which outlines the offense of driving under the influence of alcohol or drugs. Appellant has characterized this language as extra verbage which thisCourt could ignore should it choose to apply the statutory protections to appellant. However, "All provisions of a statute shallbe given effect, if possible." Crist, supra, 622 P.2d at 1029 38 St.Rep. at 152, citing Corwin v. Bieswanger (1952), 126 Mont. 337, 251 P.2d 252. This Court does not have the power to remove or ignore language in a statute. The second consideration is how similar impliedconsent laws have been interpreted in other jurisdictions. The implied consent laws of several jurisdictions expressly state that they apply to persons arrested for "any offense" arising out of operating a motor vehicle under the influence, and their courts have applied the statute to negligent homicide cases. See State v. Riggins (Fla.App. 1977), 348 So.2d 1209. However among the jurisdictions which have interpreted implied consent laws with operative language similar to Montana's, there has been a split of opinion. Some jurisdictions hold that their statutes do apply to negligent homicide prosecutions. See State v. Hitchens (Iowa 1980), 294 N.W.2d 686; and State v. Annen (1973),120r.App. 1203, 504P.2d 1400. However we feel the better reasoned cases hold that the statute does not apply to negligent homicide cases. See People v. Sanchez (1970), 173Colo. 188,476 P.2d 980;Van Order v. State (Wyo.1979), 600 P.2d 1056; and State v. Robarge (1977), 35 Conn.Supp. 511, 391 A.2d 184. Relying on the plain wording of the statute, these cases held that applying the implied consent laws to negligent homicide prosecutions was not what the legislaturehad intended. The third consideration also weighed heavily on the courts deciding the cases cited immediately above; suspension of thedriver's license is simply an insufficient penalty for refusing to submit to a chemical analysis when there has been a death caused by the drinking driver. The gravity of the crime heightens the importance of the blood sample, and it appears the legislature felt this administrative remedy was simply inappropriate. The decision to modify the scope of the implied consent lawproperly rests within the legislature's power. It is not within our power to read into a statute more than is found there, as appellant would have us do. Therefore we hold that Section 61-8-402 does not apply to suspects in negligent homicideprosecutions. TheDistrict Court's judgment is

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We concur: 

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