No. 85-297 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

JAMES R. JOHNSON, 

Petitioner and Respondent, 

DIVISION OF MOTOR VEHICLES, 

MONTANA DEPARTMENT OF JUSTICE, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Robert B. Brown, Ravalli County Attorney, Hamilton, 

Montana 

For Respondent: 

Jeffrey H. Langton, Hamilton, Montana 

Submitted on Briefs: Sept. 19, 1985 

Decided: December 31, 1985 

Filed: arc 3 ' :dHb 

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

Court. 

The State appeals a Raval-li County District Court order 

requiring the State to restore a driver's license seized 

under Montana's Implied Consent Law when the driver failed to 

submit to a breathalyzer test requested by a police officer. 

The issue on appeal is whether respondent James Johnson 

"cured" his failure to submit to the breathalyzer test by 

initiating a blood alcohol test a short time later. We hold 

that the later test did not cure respondent's prior failure 

to submit and, accordingl-y, we reverse. 

The only evidence in the District Court file is the 

result of the blood alcohol test performed on respondent. We 

piece together the facts of this case from the District Court 

order and from counsels' unsworn statements in the 

transcript. As far as can be pieced together, the facts are 

these. 

~t approximately 1:00 a.m. on March 24, 1985, 

respondent was arrested for driving a motor vehicle while 

under the influence of alcohol. Deputy Sheriff Capp, the 

arresting officer, took the respondent to the Ravalli County 

Courthouse. Officer Capp informed respondent of the Miranda 

warnings and also of respondent's rights and duties under 

Montana's Implied Consent Law. Officer Capp requested that 

respondent take a breathalyzer test and respondent replied by 

asking if he could have an attorney present during the test. 

Officer Capp told respondent that he did not have that right. 

Officer Capp again read respondent his rights and duties 

under Montana's Implied Consent Law and respondent requested 

the presence of an attorney. Deputy Capp again stated that 

respondent had no right to an attorney for this test. 

Respondent's counsel concedes that respondent was requested a 
third time to submit to the breathalyzer test. Respondent 

again asked about the possibility of having a lawyer present. 

Officer Capp finally deemed respondent's answers as a refusal 

to submit to the test. Respondent's driver's license was 

seized by the police under the Implied Consent Law because of 

his failure to submit to the breathalyzer test. 

Respondent may not have expressly refused to submit to 

the sobriety test. Similarly, respondent may have been 

confused by the apparent conflict between the Miranda 

warnings, which cited his right to an attorney (during 

custodial interrogation), and the lack of a right to an 

attorney during the sobriety test. 

Respondent was booked and jailed following his refusal 

to submit to the test. He asked the jailor that he be taken 

to the hospital for an examination because his wrists had 

apparently been bruised by police handcuffs. Once there, 

respondent asked that a doctor take a blood alcohol test but 

requested that the results not be made available to the 

police. Respondent contends that this blood test was taken 

approximately 20 minutes after respondent's failure to submit 

to the police breathalyzer test. The test was taken for 

respondent's personal use. 

On March 28, 1985, respondent's attorney filed a 

petition for restoration of driver's license. On April 3, 

1985, a hearing was had on the petition. No witnesses 

testified but both respondent's attorney and the County 

Attorney made statements to the court. Respondent's 

attorney, on behalf of respondent, offered the results of the 

blood alcohol test to the State for its prosecution of the 

DUI case against respondent. The results of the test showed 

that respondent's blood alcohol level was .20 when he was at 

the hospital, an undetermined time after his arrest. At the 
hearing, respondent's counsel a.rgued that respondent did not 

expressly refuse the breathalyzer test and that respondent 

may have been confused by the apparent conflict between the 

Miranda warnings and the lack of a right to an attorney 

during the test. Respondent contended that he substantially 

complied with the Implied Consent Law. 

The District Court filed an order on April 3, 1985. 

The court found that respondent requested a blood alcohol 

test within a reasonable time after his prior implied 

refusal. The court ordered the restoration of respondent1 s 

license. The State appeals. 

In this case, the trial judge sat without a jury, no 

testimony was taken, and the facts are relatively 

uncontested. In such a case, the scope of review is much 

broader than in other appeals and "this Court is free to make 

its own examination of the entire case and to make a 

determination in accordance with its findings." Shimsky v. 

Valley Credit Union (Mont. 1984), 676 P.2d 1308, 1310, 41 

St.Rep. 258, 260, citing Steadman v. Halland (Mont. 1982), 

At the time of the arrest, S 61-8-402, MCA, commonly 

called the Implied Consent Law, stated: 

(1) Any person who operates a motor 

vehicle upon ways of this state open to 

the public 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. The test shall be 

administered at the direction of a peace 

officer having reasonable grounds to 

believe the person to have been driving 

or in actual physical control of a motor 

vehicle upon ways of this state open to 

the public while under the influence of 

alcohol. The arresting offices may 
designate which one of the aforesaid 

tests shall be administered. 

(3) 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 

provided in subsection (1) of this 

section, none shall be given, but the 

officer shall, on behalf of the division, 

immediately seize his driver's 

license . . . 

This Court has interpreted 5 61-8-402, MCA, in State v. 

Christopherson (Mont. 1985), 705 P.2d 121, 42 St.Rep. 1320, 

and Matter of Burnham (Mont. 1985), 705 P.2d 603, 42 St.Rep. 

1342. The instant case is controlled by our holdings in 

Christopherson and Burnham, both of which were u.ndecided when 

this case was in the District Court. 

In Christopherson, the appellant was arrested for 

driving while under the influence of alcohol. He refused a 

police request to submit to a breath test and instead a-sked 

for and offered to pay for a blood alcohol test. We held 

that Christopherson's driver's license was properly suspended 

under 5 61-8-402(3), MCA, for refusing to submit to a 

chemical blood alcohol test. In so holding, we stated: 

The purpose of Section 61-8-402, MCA, is 

to encourage a person arrested for DUI to 

submit to a chemical test. The statute 

provides that the arresting officer is to 

designate which type of chemical test 

will be administered. The arrested 

person may take the designated test or 

refuse it, but if he will not take the 

test designated by the officer, his 

driver's license shall be suspended. The 

language of the statute makes it clear 

that it is the refusal to take the test 

designated the arresting officer that 

triggers the suspension, not the refusal 

to take any test whatsoever. If the 

arrested person chooses to take a 

chemical test other than the test 

designated by the arresting officer and 

will not take the designated test, it is 

still a refusal for which his driver's 

license will be suspended. (Emphasis in 

original.) 
Christopherson, 42 St.Rep. at 1322. This language is 

directly applicable to the instant case. 

In Burnham, we reversed the District Court's holding 

that, 

. . . Burnham's plea of guilty to the 

offense of driving under the influence of 

alcohol or drugs constituted a withdrawal 

of his refusal to take a breath test 

under Montana's implied consent statute. 

Burnham, 705 P.2d at 606, 42 St.Rep. at 1345. With reference 

to § 61-8-402, MCA, we stated, 

There is nothing in this section, or any 

other section of the code, that allows a 

withdrawal of a refusal to submit to a 

chemical test. 

Burnham, 705 P.2d at 608, 42 St.Rep. at 1347. 

We find that Burnham and Christopherson are controlling 

and, therefore, we reverse the District Court. The District 

Court found, and we agree, that respondent's conduct 

constituted an implied refusal to take the breath test. 

Respondent repeatedly failed to submit to the test when asked 

to do so. Once a refusal to take the test is found, nothing 

in Montana law provides for a "cure" or withdrawal of that 

refusal. We hold that the police properly seized 

respondent's driver's license. 

Respondent cites Moore v. State, Motor Vehicles Div., 

Etc. (Or. 1982), 652 P.2d 794, for the proposition that a 

driver's request to speak with an attorney before consenting 

to testing is not, in and of itself, a refusal to take the 

test. The Oregon decision is distinguishable, unpersuasive 

and predicated upon a right which does not exist in Montana. 

In Oregon, a person has a limited right to speak with an 

attorney before consenting to a breath test. Moore, 652 P.2d 

at 797. In Montana, a defendant has no right to speak with 

an attorney before a sobriety test or to have an attorney 
present during a test. State v. Armfield (Nont. 1984), 693 

P.2d 1226, 41 St.Rep. 2430. Furthermore, Deputy Capp three 

times asked respondent to take the test and three times 

respondent failed to do so. That is a refusal. 

Respondent cites cases to the effect that where a 

defendant, because of confusion over the Miranda warnings, 

requests an attorney before consenting to the test, that 

request does not constitute a refusal to submit to testing. 

Citing State v. Welch (Vt. 1977), 376 A.2d 351; Rust v. 

Department of Motor Vehicles (1968), 73 Cal.Rptr. 366; Plumb 

v. Department of Motor Vehicles (1969), 81 Cal.Rptr. 639. 

Other courts have also addressed situations where defendants 

are confused by the Miranda warnings and the right, or lack 

thereof, to an attorney before a blood alcohol test. See 

Gaunt v. Motor Vehicle Div., Dept. of Transp. (Ariz. App. 

1983), 666 P.2d 524; State, Department of Highways v. Beckey 

(Minn. 1971), 192 N.W.2d 441. With the exception of Welch, 

which is distinguishable from the instant case in any event, 

these cases require that the police clearly inform the 

defendant that he has no right to an attorney during a blood 

alcohol test. If this is done, the courts agree that the 

defendant's confusion about the Miranda warnings is no excuse 

for his refusal to submit to a blood alcohol test. 

In the instant case, respondent's counsel admitted that 

the police informed respondent twice that he had no right to 

have an attorney present for the blood alcohol test. 

Furthermore, there is no evidence that respondent was 

confused by the apparent conflict between the Miranda 

warnings and the lack of a right to an attorney during a 

sobriety test. There is only counsel's bald assertion to 

that effect. Under these circumstances, respondent will not 
be heard to argue that he was confused by his rights under 

Miranda. 

Finally, respondent asserts that the State accepted the 

test results offered by respondent from the later sobriety 

test. Respondent argues that the State cannot now attack the 

District Court's order because the State acquiesced in the 

judgment by accepting the test results and because the State 

received a benefit from the judgment. We reject this 

argument without reaching the legal issue. The record shows 

that respondent's counsel voluntarily told the County 

Attorney the results of the test before the court ever 

entered its order. The record does not show that the State 

used the test results in its prosecution of the DUI case. 

Nor does the record show the resolution of the DUI case or 

that the State acquiesced in the District Court's order. The 

respondent's argument on this issue is without merit. 

We agree with the reasoning of other courts which have 

addressed issues similar to the main issue here. 

There are several factors militating 

against the argument for additional time 

to allow a driver's subsequent offer to 

take the test. As time elapses between 

arrest and the test, the reliability and 

accuracy of the test diminishes . . . The 

time element may require involvement of 

an expert to extrapolate information 

derived from a delayed test . . . This 

tends to unnecessarily compound or 

complicate matters of evidence. Also, 

permitting a delayed test at the 

subsequent offer of the motorist would 

require officers to wait and see if there 

wa.s a change of mind by the refusing 

motorist, and would require officers to 

forego other responsibilities in order to 

arrange the belated test -- all contrary 

to the clear intent behind the implied 

consent law that the test be submitted 

and completed expeditiously. (Citations 

omitted. ) 
Hoyle v. Peterson (Neb. 1984), 343 ~.~.2d 730, 734. 

Similarly, the New Jersey court in State v. Corrado (N.J. 

App. 1982), 446 A.2d 1229, 1232, stated that: 

The cases expressing the majority view 

[that an initial refusal to take a 

sobriety test is final and there is no 

right to cure an initial refusal] 

essentially turn on the question of the 

unreasonableness of having police 

officers turn aside from other duties to 

administer a test after the driver has 

initially refused. 

This reasoning is persuasive. 

We reverse the District Court order and remand this 

case for further proceedings consistent with th#opinion. / 

Justice / 

We concur: