STATE v STUECK
Annotate this Case
Download PDF
No. 96-081 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1996 STATE OF MONTANA, Plaintiff and Appellant, v. GREGORYS. STUECK, Defendant APPEAL FROM: and Respondent. District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding. COUNSEL OF RECORD: For Appellant: Hon. Joseph P. Mazurek, Attorney Ass't Attorney Barbara C. Harris, Helena, Montana General, General, Mike Salvagni, Gallatin County Attorney, Jane Mersen, Deputy County Attorney, Bozeman, Montana For Respondent: Karl P. Seel, Attorney Submitted at Law, Bozeman, Montana on Briefs: Decided: Filed: July 18, 1996 December 9, 1996 Justice Karla M. Gray delivered The State blood Montana Judicial Eighteenth of the Opinion District alcohol evidence (State) appeals Court, obtained of the Court. from Gallatin the order County, from Gregory of the suppressing S. Stueck (Greg). We affirm. The dispositive erred issue in concluding that to a negligent Montana's vehicular admissibility of blood refused to submit Shortly Patrol 90 near Belgrade, be a large cloud traffic. from a mile cloud; the and traveling appeared west to Campbell As Campbell truck in man, Eric in the median; his head. the an accident a man staggering (Troth), theorized to approximately interchange. site, that 2 of It and debris The dazed of the disabled the vehicle emerge he saw a pickup the pickup a substantial of occurred. the median and the highway. was the driver lanes a huge cloud had just near on saw a vehicle Belgrade accident east westbound was trailing he had sustained Campbell the itself the Greg what appeared He observed Campbell littering W. Troth was traveling the scene, approached the median, from the accident that (Campbell) toward the 19, 1995, Montana Highway ahead of him in vehicle applies drawn after smoke or steam developing As he approached the steam of statute test. Montana. of either Court so as to preclude forcibly on January Campbell Interstate three-quarters alcohol the District consent prosecution sample evidence midnight Joseph is whether implied assault to a blood before Officer on appeal pickup bump on the back of he had seen emerge from vaporous the Observing point a "fluid of Campbell and Troth the highway to a point put the trail highway, and immediately car with began clearing accident. After local Campbell detected a powder pickup responsible which for Officer five DeLaittre ten either Road onto hit Campbell the fluid found fluid Thorpe on Troth's off With the accident that his best still course of He did scene. so and investigating the Troth's transfer pickup, on Troth's dark- by the responded vehicle trail to the accident and Troth's down and off DeLaittre could see where the had made a right trail Road. The fluid of fluids DeLaittre deposited braked that for from the a corner. a baby blue paint pickup. 3 return. the highway turn trail was in the wrong lane and ultimately a bump or radioed tapered from Campbell the an accumulation direction. have been left after vehicle often its and lifted to Amsterdam Road. infrequent, led them to detect paint and, eventually, Amsterdam it then (DeLaittre) minutes began following leaving and they the accident. Dennis DeLaittre to the interchange. until to the accident to car it arrived appeared patrol from roads; decided blue accident. highway trail the highway a wrecker the the Belgrade and debris Troth his the fluid Campbell for on the in toward followed his was to return scene Troth and down several man in littering colored west where Campbell was unable an injured action responsible heading the fluid Campbell was trail" impact, began following off cloud off of became more consisted vehicle About transfer after that of it time, had been DeLaittre continued changed to gravel, in the early skidded he followed morning on the down Thorpe Road. frost roadway, a single to where backed observed front-end that he had located Campbell residence met parked. Before dispatch office called side" at the approaching the into truck baby to have a driveway. with extensive and radioed entrance blue the Ford to the pickup; was radioed officers who reported he also provided the pickup the check on the pickup. Don Stueck, owner, Greg had been using visible appeared driveway house, a registration the registered tracks in the driveway, the Road where for surface the vehicle. DeLaittre on Thorpe a vehicle Ford pickup damage on the driver's Campbell set of tire up and pulled a "baby blue DeLaittre When the road Dispatch that Greg's his son telephone number. The sheriff's morning hours Stueck office (Kristy) officers After to asked her and if Kristy wake him. Kristy's in her yard. patrol Kristy if to that The officers second attempt they that Kristy the early wife, Kristy talk to complied an accident to had or if two and Campbell door. occurred, the Greg had been When she answered that Greg asked her to have Greg come to the he was sleeping returned to Greg's go outside she had been driving the truck, responded home in cars and met her at the front Greg had been drinking. had been driving door. their explaining officers driving She was asked left Greg's 20, 1995, and reached of January who were parked and DeLaittre telephoned to their awaken him, 4 and she was unable patrol Greg cars came to to and, after the door. According to Campbell, eventually called Campbell outset and trying and that further truck and proof negligent of the implied it negligent injury vehicular accident accident. pickup withdrawn charges. to find followed. When he felt his After the the impact away from the scene. traffic violations, to Bozeman Greg of the terms but did request a blood When Greg refused failure to give County Justice to stop sample to to give a the with scene of an notice of an injury the evidence as well a hearing, at Court immediate seized from his Ford as 'I [ cl he blood . . at Bozeman Deaconess Hospital," Following left from him forcibly. assault, residence, Greg then truck did not advise Greg in Gallatin and failure that and transported content. and he had been driving misdemeanor Greg moved to suppress and his that effort Campbell name. the of the pickup the officers assault, statute, was taken charged to "fumbling a bit told last and drove three alcohol quite initially at the wheel. for consent Greg started took outside Greg admitted asleep on Greg at the had been driving The officers blood The State "Bill" vehicular Deaconess Hospital. sample, Greg of insurance; Greg was arrested blood .'I Greg panicked of the accident, his that on which and walked and had fallen determine . friend questioning, including to the house and odor of alcohol he did not know Bill's abruptly registration boots . his but that house the strong and observed his concentration night, the smell interview to pull DeLaittre the officers them inside. could of the Greg motioned the 5 Justice sample forcibly and to dismiss Court suppressed the the evidence motion resulting from the forced to dismiss. the District The State Court evidence appeals appealed, but denied Greg's and Greg cross-appealed, to Court. The District sample blood drawing, granted and denied from the District Greg's the motion Court's the blood of rest to suppress motions. The State his suppression of the blood sample evidence. Did the District Court err in concluding that Montana's implied consent law applies to a negligent vehicular assault prosecution so as to preclude the admissibility of blood sample evidence forcibly drawn after Greg refused to submit to a blood alcohol test? In granting the District evidence, State v. the influence of assault and, as inadmissible it we review State those v. our implied in pertinent the the in a motion sample contention 674 P.2d 1094, other of than driving distinguished negligent blood sample violation of to suppress (1995), implied vehicular evidence the is statute. based on legal to determine 273 Mont. that rendered MCA, Montana's conclusions Williams blood The court charge that grants 433, 61-8-402, was taken 1021 (citation We begin provides, result, court correct. P.2d 1019, a the the State's (DUI). § to suppress to any offense alcohol that because Where a district conclusions, 207 Mont. applies statute, to rejected MCA, inapplicable consent Montana's Court concluding Thomuson, are motion Thompson (1984), § 61-8-402, under Greg's whether 459, 462, they 904 omitted). analysis consent by focusing statute. part: 6 on Section § 61-8-402, MCA, 61-8-402, MCA, A person who operates or is in actual physical (1) control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person's blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body if arrested bv a peace officer for drivins or for beinq in actual ohvsical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two. . . If a driver under arrest refuses upon the (3) request of a peace officer to submit to a test or tests designated by the arresting officer as provided in subsection (l), a test may not be siven, but the officer shall, on behalf of the department, immediately seize the person's driver's license. . . . [Emphasis added.] In interpreting therein a statute, State by the legislature. 219, 902 P.2d 532, 540. direct, and certain, the statute committing a defendant's mandates MCA. that the Moreover, consent DUI. statute Thompson, 166 Mont. Here, statute 190, blood are the language used 273 Mont. (1995), 207, is plain, unambiguous, itself . language used, defendant has samples been in § 61-g-401, to submit .'I Gould, inadmissible as evidence 674 P.2d at 1095 (citing MCA. Section drawn in violation State § 61-8- arrested to a blood "may not be given." for In such alcohol test 61-8-402(3), of the implied in prosecutions v. Mangels for (1975), 531 P.2d 1313). Greg was not arrested defining speaks for set forth refusal test v. Gould and unambiguous when the the DUI offense an event, to omitted). to the plain MCA, applies 402(l), first "Where the language 902 P.2d at 540 (citation According we look the offense for violating of DUI. 7 § 61-8-401, He was arrested, MCA, the however, for committing the misdemeanor in violation of § 45-5-205, he or she (1) operates driving for while injury offense set forth is clear in § 61-L-401, "arrested control . I, . Consequently, prohibited refused vehicular the State to violation submit of the while it is the cause of offense. that giving the DUI element of--and As a result, MCA, Greg was being in under the influence actual of alcohol § 61-8-402(3), the blood and the blood statute "as provided is or for we conclude sample inadmissible. if and (2) is MCA. Thus, assault driving from forcibly to conduct of § 61-8-402(l), for of a vehicle or her MCA, is a specific by a peace officer physical or drugs, assault offense manner; 45-5-205(l), in the language that, commits that of alcohol Section negligent vehicular in a negligent and (3) his to another. subsumed in--the it a vehicle [;I" of negligent MCA. A person under the influence in 61-8-401(l) bodily offense test MCA, after evidence Greg drawn in Thomoson, 674 P.2d at in Thomuson, we held 1095. The State 61-8-402, It inapplicable therefore, to the and does not taken points MCA, inapplicable contends, here correctly without to a negligent that negligent preclude Greg's out that, the homicide Thompson renders vehicular admissibility The consent. prosecution. § 61-E-402, assault charge reads MCA, at of the blood State § issue sample Thomoson too broadly. In homicide, death Thomuson, which of another is the defendant was charged with statutorily defined as negligently human being. Section 45-5-104, 8 MCA. negligent causing the He did not consent the to the taking alcohol taken. of a blood content in The defendant the basis that 5 61-8-402, court it blood; moved for suppression therefore, to suppress 674 P.2d at 1095. The issue prohibition against nonconsensual § 61-8-402, MCA, applied the statute Thomoson, focused influence." hold from for was whether the samples negligent in homicide. sample drawn in violation should have been of suppressed. until and most arrested that is 674 P.2d for that we of afforded Next, implied "the better omitted). for by the § blood drawings to negligent (citations 9 importantly, driving 1096. having does not apply 1096-97 at convictions. by a peace officer nonconsensual an arrest that in the language the protections and determined at homicide as reflected jurisdictions the statute 674 P.2d First, against there other considerations, the "if we concluded to Montana's Thompson, Thomoson, of blood intent Thomuson, that homicide. to negligent 1096. MCA, prohibition engaged similar at Highlighting DUI" language, decisions The district at trial based on three MCA, did not apply the statute. "not concluded, on the legislative 61-E-402, of 674 P.2d at 1095. 674 P.2d Thornson, sample on was admitted extractions and was in violation us on appeal the blood was inadmissible We ultimately § 61-g-402, it to prosecutions applied, will of negligent before sample of the blood his the evidence, was convicted the prohibition the was inadmissible. and the defendant If of determining nonetheless, had been drawn against MCA, and, refused his sample for purposes under are the we reviewed consent laws reasoned cases homicide cases." Finally, we addressed the gravity a death of the charged had been caused by a drinking suspension was an insufficient chemical analysis. Applying the three an arrest negligent homicide, indicates that for applying 61-8-402, MCA, Thomoson, 674 P.2d negligent homicide the another at definition relates influence Thomoson the because the is an arrest for driving P.2d at 1096. assault charge the influence 45-5-205(l), arrest for Here, did above, language as set unlike DUI and the protections issue. of of in while the under for negligent "until Thompson, the negligent concluded, under the 10 674 vehicular driving while under 5 61-a-401, MCA. See§ has been an by 5 61-8-402, MCA, are engaged. Having in protections in Thomuson, there afforded that concluded was inapplicable in 5 offense Nothin~g a vehicle element, in the death causing to an arrest above, forth at the intend clearly we began by under the influence." as a specific MCA. Thus here, and we properly language as discussed of alcohol than charge MCA. not MCA, to apply includes, rather DUI" homicide as negligently statutory there for As noted legislature homicide case There, "arrest Accordingly, by § 61-8-402, this result § 45-5-104, afforded to different in any way to operating of alcohol. that a negligent See license to a assault, of the is defined where to submit vehicular 1095-96. human being. refusing distinguishable. meaning to a driver's considerations negligent mandates the plain for that, 674 P.2d at 1097. Thomuson Thompson is and opined driver, penalty Thomuson, involving the offense statutory interpretation consideration which Thomoson, that § 61-8-402, vehicular assault, necessarily was MCA, applies the remaining With significance. our are of limited jurisdictions" the the State (Idaho 775 P.2d 1210, and State not applicable to distinguishable they In Woolerv, Idaho the court the offenses. a nonconsensual Woolerv, therefore, no statutory and the blood a 5 61-8-402, test evidence any in ultimately had been created of inadmissible. P.2d at 1095. 11 implied the requisites 775 it See, consent blood at 1214-15. MCA, expressly drawing to the test e.q., test a lawful has been refused to submit and, for P.2d a nonconsensual MCA, refusal language The court admissibility if the a requested the Woolerv, was not event here where § 61-8-402(3), that readily Rather, statutory the thereof--with may not be given MCA, is therefore, focus charged. to refuse met. our cases hold as a result, following a test primary of constitutional were Woolery has no application that the are 1985), here. test right to as the seizure absence lack was irrelevant so long us and, 775 P.2d at 1214. compliance--or provides before position blood § 61-8-402, cases to the offense on the V. Woolery (Or.App. Those applied that search that Supreme Court's determined evidence to State v. Armenta Idaho focused was refused. statute cites position the State's statute prohibiting test "other from the case presently do not support whether of its non-DUI negligent to regard in support for in Thomoson criteria from Thompson, 702 P.2d 1113, concern to an arrest consideration 1989), primary and, of blood renders Thomuson, 674 In Armenta, following an accident P.2d at 1113. connection under the defendant both the implied the language non-DUI admissible as to constitutional like rendering concluded assault Thomoson, consent statute reasons set present case to charge involving assault, which, therefore, 402(l), the an arrest which test at Thus 1114. of the and offense of for the the negligent element, charged final offense homicide Thomuson consideration and we observed, involved Thompson, 674 P.2d at 1097. Indeed, ten punishable years lOl(22) however, at by imprisonment and a fine of and 455-104(3), negligent vehicular was the in that issue offense offense regard, the in MCA. In the of the the negligent a human being. homicide the state $50,000, 12 of to § 61-8- gravity that death negligent up to assault DUI pursuant and MCA. The for implied from DUI as a specific an arrest was with Thomuson, the the inapplicable distinguishable for includes constitutes is applied compliance applicability Armenta the charge. blood 702 P.2d Like only assault of Appeals in consent appealed assuming Armenta, limited above, of an invalid the 702 evidence the statute that a DUI charge. forth test the The Oregon Court requirements. Armenta, vehicular the blood vis-a-vis II Armenta, and the state evidence and DUI and assault injuries. as a consequence specifically offenses, in suppressed statute, 702 P.2d at 1114. statutory to charges of resulted court consent inadmissibility Annenta, which The trial with was charged with is a felony prison or both. case presently is a misdemeanor for & up to §§ 45-2before offense us, with maximum punishments a fine of MCA. Thus, is of of one year $1,000, or both. while very limited statutory application here further of our conclusion § that vehicular 61-S-402, prosecution evidence in distinguishes 5 61-E-402, light in and and 45-5-205(2), this consideration of the this paramount case, its Thomuson and weighs in favor MCA, applies Court applies to preclude drawn in violation a the to an arrest did not err in concluding negligent vehicular admissibility of the statute evidence. Affirmed. We concur: Chief that interpretation the District MCA, that the State jail for assault. so as to suppressing in the county §§ 45-2-lOl(41) significance of We hold that & we agree with importance negligent imprisonment Justice Justices 13 and also of blood that assault sample did not err in Justice Karla While raised M. Gray, specially Court's opinion the in Justice Erdmann's to add additional concurring. adequately dissenting addresses opinion, comments about several the I write matters separately of the arguments contained therein. First, support the dissent position. its states In this not necessary support for this Court Next, on by discussed State in at issue statute at issue is not provides the that specific portion inadmissible blood and which 403 N.W.2d the Idaho implied consent at test 429. Thus, once it implied consent from of the seizure of of Greg's 14 opinion, statute Woolerv, it blood is by this which renders to submit addressing was MCA, expressly a nonconsensual MCA, refusal propriety like has been refused Court's a 5 61-8-402, the prohibiting a requested the resulting cases language here where 5 61-8-402(3), of Montana's negates constitutionality consent "may not be given" evidence following implied event in case relied The Wisconsin the As discussed arrestee. and case and Woolerv blood a test is Armenta contain applicable it cases in a Wisconsin not in that jurisdiction" in Woolerv--did See Zielke, Zielke the however--like test only here. opinion. in Zielke, a nonconsensual refused. to no cases which of Montana statutes from Zielke, addition cites I observe "other analysis quotes in the Court's statute regard, has conducted the dissent the the Court to cite of a straightforward law such as the Court that the which drawing of to the test issue of the the dissent would in this Finally, of reach while this accidents disagree ignore with the expedient which I do not disagree case may appear related I case. is legislatures free allow the in consent statute view dissent's language The State's in that order "remedy" to amend the implied have done, not with the Court's defendants to use the implied statutory result. to that this lies 15 Court. with statute or drug- as a "shield," Court to produce consent this alcohol resolution can simply a politically the legislature, as other ,-~, state Justice Charles E. Erdmann I respectfully implied law, assault implied Or dissent consent vehicular § introduction of impairment. Further, that all issues The District sample evidence 674 433, P.2d vehicular the 1094, assault implied is consent charge. In reaching language of analysis other to the implied determine than the of the Greg's that State not apply In brought. did that not District for the (1984), a charge of apply the Court and then that law Court first blood negligent held that homicide reviewed employed should on 207 Mont. a negligent to Greg Court to suppress Thompson these trial. this law, whether I would violate Thompson, conclusion, consent chemical under not matter when the majority, the motion v. of did reverse alcohol prevent appropriate blood the the a three-step apply to charges DUI. Given was seizure does in to by the reached the allows evidence granted law opinion them and remand by finding a by defendants I would Court negligent not privacy. these of to apples allows search the of that admissible a warrantless right three and although that MCA, as a shield otherwise and conclusion The majority's accidents circumstances the majority's 61-E-402, law to be used drug-related Stueck's from prosecution. consent conclude dissenting. questionable reading of clear whether the statute. language the This of analysis basic I.6 5 need statutory 61-E-402, go any MCA, further construction it than analysis is a is the first of provides in the Thomnson pertinent criteria. Section 61-E-402, MCA, part: (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person's blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body if arrested by a peace officer for driving or for beinq in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two. (Emphasis consent added.) Section statute, language of is the the an arrest v. (1995), for MCA, referenced statute that itself, it statute involving Gould 61-e-401, DUI. 273 Mont. As this 207, prohibits is applicable Court 902 P.2d DUI. recently in the implied By the clear only to cases noted in State 532: we first look to the In interpreting a statute, plain meaning of its words. Christensen, 877 P.2d at 469 (citation omitted). If the legislative intent can be ascertained from the plain meaning of the words used, no further interpretation is required and we will not resort to legislative history. Clarke v.Massey (1995), 1271 Mont. 897 P.Zd 1085, 1088. Where the language is plain, 4121, unambiguous, direct, and certain, the statute speaks for itself and there is no need to resort to extrinsic means Christensen, 877 P.2d at 469 (citation of interpretation. omitted). In addition, [i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted . Section Gould, l-2-101, 902 P.Zd As unambiguous at correctly language MCA. 540. recognized of 5 by 61-E-402, 17 the majority, MCA, makes the plain, the statute applicable only was not arrested implied consent holds that § where for the negligent vehicular in majority influence of alcohol negligent homicide negligent vehicular assault easily statute but to both has has by charge that one the that of does not for provisions of In concluding constitutes provisions into That Legislature. is the the of the arrest for Legislature vehicular consent assault, an arrest arrest for § 61-B-402, not the implied that an under an The for DUI. elements make and negligent do so. an arrest driving DUI. the negligent for the that however, of an arrest an arrest assault inserted the that homicide to vehicular majority omitted not is As Greg majority, a in noting drugs extended vehicular chosen negligent this have is concludes so, correct or to constitutes statute, could is DUI. The applies homicide for conclusion apply. doing the an arrest logical not MCA, and been only does 61-E-402, assault, has DUI, statute vehicular While there DUI, MCA, proper for that the were function of Court. As the noted, legislative intent above. As the believe that second first the and statutory plain further and third of Thompson criteria interpretation, language analysis Thomuson of is the statute necessary. criteria are deals which is utilized, is discussed clear, However, the with I do not even result if the is the same. In Thompson, this We find that negligent homicide Court stated: Section 61-E-402 prosecutions. 18 does not apply This conclusion to is based on three considerations. First we consider the legislative intent. "Legislative intent must first be determined from the plain meaning of the words used; and if the language unambiguous, is plain, direct, and certain, the statute speaks for itself." Gist v. Segna (Mont. 1981), 622 P.Zd 1028 at 1029, 38 St.Rep. 150 at 152, citing Dunphy v. AnacondaCo. (1968), 151 Mont. 76, 438 P.2d 660. The language of the statute and an examination of the statutory scheme of Title 61, Chapter 8, part 4 plainly show that application of the implied consent law to negligent homicide cases was not within the legislature's contemplation. The operative language of Section 61-E-402 reads, "Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subjectto theprovisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcohol content of his blood if awesled by a peace ofJicerfor driving OYin actual physical control of n motor vehicle while under the infruence of alcohol. II (emphasis supplied) The italicized passage above makes it clear that the protections afforded there are not engaged until there is an arrest for driving under the influence. (But, see 1337, State v. Campbell (Mont. 1980) , 615 P.2d 190, 37 St.Rep. where we held that an arrest is not always a prerequisite to administration of a blood alcohol test.) Not only is the section specifically premised on such an arrest, but it is made subject to the section of the code which outlines the offense of driving under the influence of alcohol or drugs. . . This Court does not have the power to remove or ignore language in a statute. The second consideration is how similar implied been interpreted consent laws have other jurisdictions. . . [Wle feel the better reaszed cases hold that the statute does not apply to negligent homicide cases. Relying on the plain wording of the statute, these cases held that applying the implied consent laws to negligent homicide prosecutions was not what the legislature had intended. The third consideration also weighed heavily on the courts deciding the cases cited immediately above; suspension of the driver's license is simply an insufficient penalty for refusing to submit to a chemical 19 analysis when there has been a death caused by the drinking driver. The gravity of the crime heightens the importance of the blood sample, and it appears the legislature felt the administrative remedy was simply inappropriate. The decision to modify the scope of the implied consent law properly rests within the legislature's power. It is not within our power to read into a statute more than is found there, as appellant would have us do. Therefore, we hold that Section 61-8-402 does not apply to suspects in negligent homicide prosecutions. Thompson, 674 P.2d The Court's The discussion of the for consent triggered until arrest arrest surprising can Woolery (Idaho 1985), 702 P.2d The The crime. death third of conclusion of no cases an individual law for did other DLJI. In not than simply the DUI. is this support not case, State the Zielke criteria notes and is that State v. (Wis. addresses that vehicular a felony, 20 the remaining two not the cases position. Armenta 1987), the is from position, the State (Or. v. Ct. App. 403 N.W.2d 427. gravity homicide while an This State's its intended constitutes distinguish support 1210; v. assault to which Legislature significance. 775 P.2d Thompson majority consent determines attempting which 1113; provides Legislature charges vehicular limited 19891, to that then after cite the criteria DUI. majority jurisdictions that an arrest are since, majority been negligent criteria Thompson other the Thompson implied its for DUI, has first to apply for reaching for law by the there was no arrest an the afforded After omitted). conclusion protection that (citations implied the there 1096-97 support additional intend at negligent of involves vehicular the the assault is merely criteria is of very limited support of its conclusion for negligent vehicular for to further an arrest did not that a troublesome be disputed is that the of (1) driving under the conduct is a vehicle in a serious cannot crime for suspended the of bodily injury would cause have but if the the would warranted the victim apply. and officers majority's died, drugs; to law places who investigate accidents Section victim in would not have seriously created unreasonable an his the injured, a judicially a while (3) another. if only (2) and that consent were that manner; rationale, implied Such requires a negligent~ or this enforcement it statute alcohol Under not Further, temporarily of MCA. is and is influence 45-5-205, it case create. assault operate otherwise, Thomuson and misdemeanors a license vehicular person: applied, MCA, applies The assault having on it penalty. negligent case vehicular this relies 5 61-8-402, felonies to that majority assault. between sanction conceding the that distinction an insufficient her While significance, negligent mere The or misdemeanor. make any distinction is which a or distinction burden on alcohol involving law or drugs. Whether or applying utilizing Legislature the did the basic Thompson not intend rules statutory criteria, that alcohol or drug-related traffic consent law to prevent as a shield of an accident it individual be able evidence 21 is of interpretation, clear that involved to use the chemical the in implied impairment an to be introduced at trial. As noted by the Wisconsin Court in Zielke: The implied consent law is an important weapon in the battle against drunk driving in this State. Neither the law, its history or common sense allows this court to countenance its use as a shield by the defense to prevent constitutionally obtained evidence frombeing admitted at trial. Zielke, 403 N.W.Zd While not of blood violate Greg's in search this since in blood one middle and of the blood night Schmerber v. the and did not reached twenty-five would alcohol that officers minutes in time obtaining have content The means and procedures reasonable. the time hour conclude seizure The additional of Greg's evidence. were By the accident. the I would was a reasonable interests. the dissipation valuable case approximately warrant further by the majority, privacy residence, had passed 434. addressed seizure Greg's at resulted and the employed California a in in loss taking (1966), of the 384 U.S. 757. While of privacy the Mont. of Court Article has recognized II, privacy 755 P.2d 180 Mont. enforce citizens, appropriately the and Section that 10, contained in state 1364; State 591 P.2d 548, criminal the that ex person the Montana Zander Here, this the laws case, who rear-ended 22 has a broad provision rel. traffic in Montana State 656. and specifically punish of interest. any applicable 1, (1979), to in right against this Constitution, is v. to Brown v. to the be weighed (1988), District State's which right 232 Court interest protect all apprehend Troth is and vehicle and then left interests associated For and remand the be to scene compelling with the his an injury and accident. outweigh Greg's I would right find of these privacy blood. foregoing this of matter reasons for I would reverse trial. Justice 23 the District Court Chief Justice I write concur further The three correct separate correctly parts J. A. with Turnage, the and in dissenting addition decision statutes. these set dissenting: operative forth opinion of Justice Erdmann. I thereto. in this The statutes case majority which requires an has failed are in their analysis to analyze essential as follows: 61-s-401. (1) It is unlawful and punishable as provided in 61-S-714 and 61-f-723 [penalty for driving under the influence of alcohol] for any person who is under the influence of: (a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public; '"Under the influence" means that as a result of into the body alcohol, drugs, or any combination a person's ability to safely operate a motor has been diminished. (4) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time alleged, as shown by analysis of the person's blood, urine, or breath, shall give rise to the following inferences: (a) If there was at that time an alcohol concentration of 0.05 or less, it may be inferred that the person was not under the influence of alcohol. (b) If there was at that time an alcohol concentration in excess of 0.05 but less than 0.10, that fact shall not give rise to any inference that the person was or was not under the influence of alcohol but such fact may be considered with other competent evidence in determining the guilt or innocence of the person. (c) If there was at that time an alcohol concentration of 0.10 or more, it may be inferred that the person was under the influence of alcohol. The inference is rebuttable. (5) The provisions of subsection (4) do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol, drugs, or a combination of the two. i3i taking thereof, vehicle 24 of 61-8-402. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person's blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body if arrested bv peace officer for drivinq a vehicle while under the influence of alcohol[.] [Emphasis added.] 45-5-205. (1) If a person operates a motor vehicle in a negligent manner and he is drivinq while under the as provided for in 61-8influence of alcohol . and his conduct is the cause of bodily injury to 401(I), another, he commits the offense of negligent vehicular assault. [Emphasis added.] I emphasize arrested for the the fact offense that of defendant driving Greg while under Stueck was not the influence of that, because the alcohol. The District negligent be vehicular operating while a under requires the Court have Section only if vehicle the under while fact the in engaged as this implied the influence forth case. accused manner and statute the driving necessarily so-called also must implied engages and the in that majority of by consent a peace of Stueck alcohol. was not statute, officer This arrested applies for is driving clearly for a not driving alcohol. relating in Court the under of Court District arrested influence MCA, the logic. MCA, present the faulty is the set in accused The inferences body alcohol, of the that a negligent § 61-8-402, Both 61-8-402, the of The majority analysis. requires in influence with concluded statute vehicle motor statute. erroneous erroneously assault compliance consent this Court to alcohol 5 61-8-401, MCA, 25 concentration are rebuttable in a person's inferences only and, as in is concentration operating that not a motor be obtained. clearly fact be that injury competent in case, this are virtually may well Mr. have Troth. applicable reverse in 207 in legal 433, the the of alcohol facts issue 1094, the is majority to facts in facts in P.2d the of in this case. a homicide this a homicide of case. The cannot Stueck's instead set of a bodily forth in Thompson District Court. /J<& Chief 26 can operative resulted principles decision for on that 674 efforts The driving resulted bearing Mont. to the of alcohol a conviction. and the from a conviction influence such here. I would the of which by misplaced. drunken The proof evidence identical distinguished to under (1984), Thompson's legally driving are are method Thompson Thompson Thompson only and may result on point distinguish provided, while other may be introduced v. the vehicle Any State section Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
