No. 90-223 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

CITY OF HELENA, 

Plaintiff and Respondent. 

-vROBERT PATRICK BARRETT, 

Defendant and Appellant, 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr.; Cannon & Sheehy; Helena, 

Montana 

For Respondent: 

Robert J. Wood; Asst. City Attorney; Helena, Montana 

Filed: 

Submitted on Briefs: August 23, 1990 

~ecided: October 3, 1990 

Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

The Defendant Robert Patrick Barrett appeals the judgment and 

order of the Montana First Judicial District Court, Lewis and Clark 

County, convicting him of the offense of driving under the 

influence of alcohol or drugs. We affirm the conviction. 

Barrett raises the following issue on appeal: 

Did the District Court err in refusing to give the Defendant's 

proposed instructions nos. 3 and 4? 

Officers testified that on February 21, 1989, Barrett's 

vehicle was observed driving down the wrong side of the roadway, 

drifting back across the roadway, and weaving. When stopped, 

Barrett refused to take any field sobriety tests. After he was 

arrested, he continued to refuse to take any tests, including a 

chemical breath test. He was given a ticket for driving on the 

wrong side of the roadway and for driving under the influence, 

and his driver's licence was revoked pursuant to Montana's implied 

consent law, § 61-8-402, MCA, for refusing to take a breath test 

to determine the alcohol content of his blood. 

A jury trial was held in Helena City Court on August 10, 1989, 

and a mistrial was declared when the jury failed to reach a 

verdict. The case was tried again on October 24, 1989. The charge 

of failure to drive on the right side of the roadway was dismissed 

and the jury found Barrett guilty of driving under the influence. 

The case was appealed and tried & novo in district court on 

February 5, 1990. At this trial, the court refused to give two of 

Barrett's proposed instructions, and the jury subsequently found 
Barrett guilty. Barrett now appeals arguing that the failure to 

give these instructions was reversible error. 

We disagree. The first instruction proposed by Barrett and 

refused by the court is as follows: 

You are instructed that, if a person refuses to 

submit to a test of their breath, blood or urine, such 

refusal is admissible evidence. However, you may not 

draw any inference from the fact that he refused such a 

test. 

Defendant's Proposed Instruction No. 3. This instruction was 

properly refused because the second sentence is an incorrect 

statement of the law. State v. Crazy Boy (1988), 232 Mont. 398, 

403, 757 P.2d 341, 344. In City of Missoula v. Forest (1989), 236 

Mont. 129, 133-134, 769 P.2d 699, 701-702, we again held that 

evidence of refusal to submit to the breathalyzer is admissible, 

in accordance with 3 61-8-404(2), MCA, and the United States 

Supreme Court's decision in South Dakota v. Neville (1983), 459 

U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748, which this Court followed 

in State v. Jackson (1983), 206 Mont. 338, 672 P.2d 255. These 

cases clearly establish the rule that neither the results of the 

breathalyzer test nor a defendant's refusal to submit to the 

breathalyzer test are communications protected by the Fifth 

Amendment of the federal constitution or Article 11, Section 25 of 

the Montana Constitution. In ~eville the Court stated: 

. . . [W]e do not think it fundamentally unfair for South 

Dakota to use the refusal to take the test as evidence 

of guilt, even though respondent was not specifically 

warned that his refusal could be used against him at 

trial. First, the right to silence underlying the 

Miranda warnings is one of constitutional dimension, and 

thus cannot be unduly burdened. [Citations omitted.] 

Respondents right to refuse the blood-alcohol test, by 
contrast, is simply a matter of grace bestowed by the 

South Dakota Legislature. 

. . . The officers did not specifically warn 

respondent that the test results could be used against 

him at trial. Explaining the consequences of the other 

option, the officers specifically warned respondent that 

failure to take the test could lead to loss of driving 

privileges for one year. . . . Importantly, the warning 

that he could lose his driver's license made it clear 

that refusing the test was not a "safe harbor,'' free of 

adverse consequences. 

While the State did not actually warn respondent 

that the test results could be used against him, we hold 

that such a failure to warn was not the sort of implicit 

promise to forgo use of evidence that would unfairly 

Ittricktt respondent if the evidence were later offered 

against him at trail. We therefore conclude that the use 

of evidence of refusal after these warnings comported 

with the fundamental fairness required by due process. 

Neville, 103 S.Ct. at 923-924. Thus, evidence of refusal is simply 

another factor to be considered along with all other relevant, 

competent evidence in determining whether the accused is guilty or 

not guilty. The instruction was properly refused because it 

instructed the jury not to consider such evidence for any purpose. 

The second instruction offered by Barrett and refused by the 

court is as follows: 

You are instructed that a law enforcement officer 

is permitted to make an investigatory stop of an 

individual when he has a particularized suspicion of some 

kind of wrongdoing. There is conflicting evidence in 

this case concerning whether or not the defendant was 

weaving across the centerline or driving down the middle 

of the roadway. If you believe that the defendant was 

not weaving or that conditions of the roadway required 

him to drive down the middle, then you shall disregard 

any evidence obtained as a result of the stop and 

detention including but not limited to the testimony of 

all witnesses who have testified for the city in this 

case. 

Defendant's Proposed Instruction No. 4. The last sentence of this 
instruction is an incorrect statement of the law, thus this 

instruction was also properly refused. Crazy Boy, 757 P. 2d at 344. 

The focus of a determination on the validity of a stop is whether 

the police officer had sufficient grounds for a particularized 

suspicion or reasonable suspicion that an offense is taking place. 

State v. Sharp (1985), 217 Mont. 40, 45, 702 P.2d 959, 962; State 

v. Stemple (1982), 198 Mont. 409, 412, 646 P.2d 539, 540-541; State 

v. Gopher (Mont. 1981), 631 P.2d 293, 296, 38 St.Rep. 1078, 1081. 

Under the proposed instruction, even if the defendant subjectively 

believed the conditions of the roadway required him to drive down 

the middle, a trained police officer observing such actions still 

could have formed a reasonable suspicion and had sufficient grounds 

to stop the defendant. In such a situation, it would be error to 

instruct the jury to disregard all evidence obtained as a result 

of the stop. The instruction was properly refused. 

The District Court committed no error in refusing Barrett's 

proposed instructions nos. 3 and 4. The judgment is 

AFFIRMED. 

Chief Justice 

I Justices I '