No. 83-134 

IN THE SUPREME COURT OF THE STATE OF MOEJTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

STEVEN T. THOMPSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Goldman & Goldman; Bernard J. Goldman argued, 

Missoula, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten aruged, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula 

Montana 

Submitted: October 24, 1983 

Decided: January 12, 1984 

Filed: JA/l1X 1984 

Clerk 
Mr. 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 is taken. 

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, Sylvia Hatton, was the passenger. 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 "imp1 ied 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 the division, 

immediately seize his driver's license." 

(emphasis supplied) 

The officer did not seize appellant's driver'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 as a 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 level was .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 that on the facts 

outlined above the implied consent law did not apply because 

appellant was a suspect in a negligent homicide. The court 

further found that the blood sample was taken in compliance 

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 

search and seizure, the motion to suppress was denied. 

A jury trial was held, during which the results of 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 in holding that the statute did not apply here. 

Appellant contends that this Court previously ruled 

that the statute does apply to negligent homicide 

prosecutions in State v. Morgan (Mont. 1982), 646 P.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 not be drawn. The officer concluded that since 
the defendant was in such a state, pursuant to Section 

61-8-402(2), it was unnecessary to obtain consent before the 

blood was extracted. The question presented to this court 

was whether defendant was in such an incoherent state as to 

be unable to respond to a request for a blood sample, thus 

engaging the provisions of subsection (2) of the implied 

consent statute. We did not expressly rule that the implied 

consent law applied there as that question was not 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 is not dispositive of the case at bar. The 

issue presented there is not the same as is presented here, 

even though this Court seemingly presumed that the statute 

applied. Morgan dealt strictly with the internal workings 

of the statute, and did not deal with its applicability. 

"What is not in issue is not decided." Sullivan v. Anselmo 

Mining Corp. et. al. (1928), 82 Mont. 543 at 555, 268 P. 495 

at 500, 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), 68 Mont. 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. First we consider the legislative 

intent. "Legislative intent must first be determined from 

the plain meaning of the words used; and if the language is 

plain, unambiguous, direct and certain, the statute speaks 

for itself." Crist v. Segna (Mont. 1981), 622 P.2d 1028 at 

1029, 38 St.Rep. 150 at 152, citing Dunphy 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 for driving 

or in actual physical control of a motor 

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

vehicle while under the influence of - 

alcohol." (emphasis supplied) 

The underlined passage above makes it clear that the 

protections afforded there are not engaged until there is an 

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 this Court could ignore should it choose to apply the 

statutory protections to appellant. However, "All 

provisions of a statute shall be 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 implied 
consent 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), 12 0r.App. 1203, 504 P.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), 

173 Colo. 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 

legislature had intended. 

The third consideration also weighed heavily on the 

courts deciding the cases cited immediately above; 

suspension of the driver'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 law 
properly 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 homicide prosecutions. 

The District Court's judgment is 

I 

We concur: 

3h-t ,p, & 

Chief Justice