No. 85-297 INTHE 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: DistrictCourt of theFourth Judicial District, In and fortheCounty 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: JeffreyH. Langton, Hamilton, Montana

Submitted on Briefs: Sept. 19, 1985 Decided: December 31, 1985

Filed: 

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ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

The State appealsa Raval-liCountyDistrict Court order requiring the State to restore a driver's license seized under Montana's ImpliedConsentLawwhen 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 submitand,accordingl-y, we reverse. The only evidence in the District Court file is the resultof theblood alcohol test performed on respondent. We piece together the factsof this case from the DistrictCourt order and from counsels' unsworn statements in the transcript. As far as canbe 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 respondenttake a breathalyzer test and respondentrepliedby asking if he could have an attorneypresent during the test. Officer Capp told respondentthat he did nothave 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 respondentwas requested athird time to submit to the breathalyzer test. Respondent again asked about thepossibility ofhaving a lawyerpresent. Officer Capp finally deemed respondent's answersas a refusal to submit to the test. Respondent's driver's license was seizedby thepolice under the ImpliedConsent Lawbecause of his failure to submitto the breathalyzer test. Respondentmay 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. Respondentwas 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 testwas taken approximately 20minutes after respondent's failure to submit to the police breathalyzer test. The test was taken for respondent'spersonal 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,onbehalf of respondent,offered the resultsof 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 levelwas .20 when he was at the hospital,an undetermined time after his arrest. At thehearing, respondent's counsel a.rguedthat respondentdid 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 compliedwith the Implied ConsentLaw. 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 "thisCourt is free tomake 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 ImpliedConsentLaw, stated: (1) 

### Any person who operates a motor vehicle upon ways of this state open to the public shallbe 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 apeace officer for driving or in actual physical control of a motor vehicle while under the influence of alcohol. The test shallbe administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actualphysical control of amotor vehicle upon ways of this state open to the public while under the influence of alcohol. The arresting offices maydesignate which one of the aforesaid tests shallbe 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,onbehalf of thedivision, immediately seize his driver's license

# . .. ThisCourthas interpreted 

### 5 61-8-402,MCA, in Statev. Christopherson (Mont. 1985), 705 P.2d 121, 42 St.Rep. 1320, and Matter ofBurnham (Mont. 1985), 705 P.2d 603, 42 St.Rep. 1342. The instant case is controlled by our holdings in Christophersonand Burnham,both ofwhichwere u.ndecidedwhen this casewas in theDistrictCourt. 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 thatChristopherson's driver's licensewasproperly suspended under 5 61-8-402(3), MCA, for refusing to submit to a chemicalblood alcohol test. In soholding,we stated: The purpose of Section 61-8-402,MCA, is toencouragea person arrested forDUIto 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 licensewill be suspended. (Emphasis in original.)Christopherson, 42 St.Rep. at 1322. This language is directlyapplicable to the instant case. In Burnham, we reversed the District Court's holding that,



# .. .Burnham's plea of guilty to the offenseofdrivingunder the influenceof 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 Burnhamand Christophersonare 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. Respondentrepeatedly failed to submit to the testwhen 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 inMontana. In Oregon, a person has a limited right to speakwith an attorneybefore consentingto a breath test. Moore, 652P.2d at 797. In Montana, a defendant has no right to speak with

an attorney before a sobriety test or to have an attorneypresent 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 Highwaysv. 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 isno excuse for his refusal to submit to ablood alcohol test. In the instant case,respondent's counseladmitted 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, respondentwill notbe heard to argue that he was confused by his rights under Miranda. Finally,respondentasserts 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 judgmentby accepting the test results and because the State received a benefit from the judgment. We reject this argumentwithout 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 theDistrictCourt's order. The respondent's argumenton this issue iswithoutmerit. We agree with the reasoningof other courtswhich have addressed issues similarto the main issuehere. 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

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# .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 foregoother responsibilitiesin 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, statedthat: 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 initiallyrefused. This reasoning ispersuasive. We reverse the District Court order and remand this

case for further proceedings consistent with th#opinion. /

Justice/

Weconcur: