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No. 99-644 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 25 

IN RE THE DRIVER'S LICENSE 

SUSPENSION OF

DARRYL McKENZIE,

Petitioner and Appellant.

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus,

The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Torger Oaas, Attorney at Law, Lewistown, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt,

Assistant Attorney General, Helena, Montana

Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana

Submitted on Briefs: October 12, 2000 

Decided: February 15, 2001

Filed:

__________________________________________

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Clerk

Justice Jim Regnier delivered the Opinion of the Court.

¶1 Darryl McKenzie appeals from the Order Denying Petition to Reinstate Driver's 

License issued by the Tenth Judicial District Court, Fergus County. McKenzie contends 

that the District Court erred when it denied his petition to reinstate his driver's license. We 

affirm.

BACKGROUND

¶2 On May 2, 1999, at 2:55 a.m., Officer Edward McLean of the Lewistown Police 

Department stopped Darryl McKenzie for driving 36 miles per hour in a 25 mile per hour 

speed zone. While speaking to McKenzie, Officer McLean smelled the odor of alcohol on 

his breath and asked him to step out of his vehicle. Officer McLean noticed that his eyes 

were bloodshot and watery and his speech was slurred. Suspecting that McKenzie had 

been driving under the influence of alcohol, Officer McLean asked McKenzie if he would 

submit to a preliminary alcohol screening test-specifically a portable breath test. 

McKenzie refused. Officer McLean read an implied consent advisory to McKenzie, 

informing him of the consequences of refusal and again asked him whether he would 

submit to a test.(1) McKenzie refused again. Officer McLean placed McKenzie under 

arrest for DUI and transported him to the police station.

¶3 At the police station, Officer McLean read the Montana Department of Justice Implied 

Consent Advisory to McKenzie and requested that McKenzie submit to a blood test. 

Officer McLean erroneously informed McKenzie that his license could be suspended for 

six months for refusing the portable breath test in the field and an additional six months 

for refusing the blood test at the police station. See § 61-8-409(6), MCA (providing that 

the refusal of a preliminary alcohol screening test and a blood test during the same 

incident may not be considered as two separate refusals for purposes of revocation or 

suspension of driving privileges). McKenzie refused to submit to a blood test.

¶4 On May 17, 1999, McKenzie filed a petition requesting a hearing on the suspension of 

his driver's license. The District Court held a hearing on August 31, 1999, at the 

conclusion of which it denied McKenzie's petition. On September 30, 1999, the court 

issued an order and supporting memorandum denying McKenzie's petition for 

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reinstatement. McKenzie appeals. 

STANDARD OF REVIEW

¶5 In reviewing a district court's denial of a petition for reinstatement of a driver's license, 

we review the lower court's findings of fact to determine whether they are clearly 

erroneous and its conclusions of law to determine whether they are correct. Williams v. 

State, 1999 MT 5, ¶ 9, 293 Mont. 36, ¶ 9, 973 P.2d 218, ¶ 9.

DISCUSSION

¶6 Did the District Court err when it denied McKenzie's petition to reinstate his driver's 

license?

¶7 McKenzie contends that Officer McLean failed to comply with the requirements of § 

61-8-409(3), MCA, by asking McKenzie whether he would submit to a portable breath 

test prior to reading McKenzie the required advisory. McKenzie acknowledges that 

Officer McLean subsequently advised him of his right to refuse and the consequences of 

refusal and again asked him to submit to a portable breath test, but McKenzie insists that 

this was too late to cure the statutory violation. 

¶8 The State agrees that McKenzie's first refusal was invalid and could not be used as a 

basis to suspend McKenzie's license because it was made before Officer McLean informed 

McKenzie of the consequences of refusal. However, the State maintains that once Officer 

McLean informed McKenzie of the consequences of refusal, McKenzie's subsequent 

refusal to submit to a portable breath test was valid and, therefore, the court had the right 

to suspend or revoke his license for up to one year. 

¶9 In a hearing on a petition to challenge a license suspension held pursuant to § 61-8-403, 

MCA, the district court may determine whether the person whose license was suspended 

refused to submit to one or more tests designated by the officer. Section 61-8-403(4)(a)

(iv), MCA. Pursuant to § 61-8-409, MCA, a person who operates a vehicle upon public 

ways of the state of Montana is deemed to have given consent to a preliminary alcohol 

screening test of the person's breath, and refusal to submit will result in the suspension or 

revocation of that person's driver's license for up to one year. Section 61-8-409(3), MCA, 

provides that "[t]he peace officer shall inform the person of the right to refuse the test and 

that the refusal to submit to the preliminary alcohol screening test will result in the 

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suspension or revocation for up to 1 year of that person's driver's license." 

¶10 We agree that McKenzie's initial refusals which occurred prior to being informed of 

both his right to refuse and the consequences of refusal are insufficient cause to suspend 

his license. Section 61-8-409(3), MCA, specifically requires that an officer inform the 

person stopped of the right to refuse and the consequences of refusal. Obviously, in order 

for this provision to be meaningful, notice of the right to refuse and the consequences of 

refusal must proceed the refusal itself. However, Officer McLean complied with § 61-8-

409(3), MCA, by providing McKenzie with the requisite information and again asking 

McKenzie to submit to a test. McKenzie's refusal thereafter was sufficient cause to 

suspend his driver's license. Therefore, the District Court correctly concluded that 

McKenzie's license was properly suspended. 

¶11 McKenzie also contends that the court should have granted his petition to reinstate his 

driver's license because at the police station Officer McLean misinformed him of the 

consequences for refusing a blood test. Both parties acknowledge that Officer McLean 

misinformed McKenzie that, because McKenzie had refused to submit to a portable breath 

test in the field, his subsequent refusal of a blood test could cause him to lose his license 

for one year-six months for each refusal. Pursuant to § 61-8-409(6), MCA, the refusal of a 

preliminary alcohol screening test and a blood test during the same incident may not be 

considered as two separate refusals for purposes of revocation or suspension of driving 

privileges. McKenzie argues that Officer McLean, by stating a greater penalty for refusal 

than provided by law, was unlawfully attempting to coerce him into consenting to submit 

to a blood alcohol test. 

¶12 We decline to address the merits of this claim. McKenzie's refusal to submit to a 

portable breath test in the field after being informed of his right to refuse and the 

consequences of refusal is sufficient cause to suspend his license for six months. See §§ 

61-8-409(4) and -402(6)(a), MCA.

¶13 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY

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/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

1. McKenzie insists that Officer McLean asked him twice whether he would submit to a breath test 

before reading McKenzie the implied consent advisory. We have listened to an audiotape of McKenzie's 

arrest and disagree. Furthermore, whether Officer McLean asked McKenzie once or twice prior to 

reading McKenzie the implied consent advisory is irrelevant to our holding. 

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