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, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Edmund F. Sheehy, Jr.; Cannon & Sheehy; Helena, Montana
For Respondent: RobertJ.Wood;Asst. CityAttorney;Helena,Montana

Filed: Submitted on Briefs: August 23, 1990 ~ecided: October 3, 1990

ClerkJustice R. C. McDonough delivered the Opinion of the Court.
The Defendant Robert Patrick Barrett appeals the judgmentand orderof theMontana First Judicial DistrictCourt, Lewisand 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 theDistrict Court err inrefusingtogive theDefendant's proposed instructionsnos. 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 licencewas revokedpursuant toMontana'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 trialwasheld inHelena City Court onAugust 10,1989, and a mistrial was declared when the jury failed to reach a verdict. The case was tried again onOctober 24, 1989. Thecharge of failure to drive on the right side of the roadwaywas 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 foundBarrett guilty. Barrett now appeals arguing that the failure to give these instructionswas 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. InCity 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 constitutionorArticle 11, Section 25 of the Montana Constitution. In ~eville the Court stated:



# .

# . . [W]e donot think it fundamentallyunfair 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 constitutionaldimension,and thus cannot be unduly burdened. [Citations omitted.] Respondents right to refuse the blood-alcohol test, bycontrast, 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 specificallywarned respondent that failure to take the test could lead to loss of driving privileges for oneyear. 

# .

# .. Importantly,thewarning that he could lose his driver's license made it clear that refusing the test was not a "safeharbor,'' free of adverse consequences. While the State did not actually warn respondent that the test results couldbe used againsthim,we hold that such a failure towarn was not the sort of implicit promise to forgo use of evidence that would unfairly Ittricktt respondent if the evidence were later offered againsthim at trail. We therefore concludethat theuse 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 indetermining 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 individualwhenhehas aparticularized suspicionof some kind of wrongdoing. There is conflicting evidence in this case concerning whether or not the defendant was weaving across the centerlineordrivingdown themiddle 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 InstructionNo. 4. The last sentenceof thisinstruction is an incorrect statement of the law, thus this instructionwas alsoproperly 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 suspicionor reasonable suspicionthat an offense is takingplace. State v. Sharp (1985), 217 Mont. 40, 45, 702 P.2d 959, 962; State


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


### v. Gopher (Mont. 1981), 631 P.2d 293, 296, 38 St.Rep. 1078, 1081. Under theproposed instruction,even if thedefendant subjectively believed the conditions of the roadway required him to drive down the middle, a trained police officer observing such actions still couldhave formeda reasonable suspicionandhad 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 instructionwas 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 '