WESSELL v STATE
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No. 96-048 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 RICKY LAWRENCE WESSELL, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Respondent APPEAL FROM: and Respondent. District Court of the Seventh Judicial In and for the County of Dawson, The Honorable Dale Cox, Judge presiding. District, COUNSEL OF RECORD: For Appellant: Kevin R. Peterson, Glendive, Montana For Simonton, Howe & Schneider, Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena, Montana Richard Glendive, L. Burns, Montana Glendive Submitted City Attorney, on Briefs: Decided: Filed: Cllerk May 30, July 11, 1996 1996 Justice Charles Ricky driving Erdmann Lawrence were implied for Court his The District The Court issue denied that and alcohol suspension on the Wessell the Wessell and his the MCA, District County, was wrongly to seized. We reverse. the District to his Court erred when to petition privileges driving it refused his Court. 5 61-E-402, Dawson that whether denied the petitioned petition. therefore of to District, had of was seized pursuant grounds is opinion license Judicial on appeal concluded driver's law. Seventh license the suspended consent the reinstate delivered Wessell's privileges Montana's it E. a test for submit the challenging pursuant to 5 61-E-402, MCA. FACTS On November officer for alcohol, in center the under Montana of of arrest the arriving test. complete instrument however, street with submit under of MCA, after were test the Justice the police the Implied a breath began the test test because the standards Wessell officer check Police 2 the the to but standards a second instrument placed Department for MCA. was read the and was Advisory consented sequence attempted for Wessell or crossed § 61-S-402, Consent internal The test. drugs He was then station, to failed. the to police consented Wessell Glendive pursuant of having performed. officer The influence vehicle. to urine by a Glendive the his which at Department to driving and transported or was stopped § 61-E-401, tests blood, Upon asked violation Wessell of sobriety a breath, 1995, suspicion line field 20, to the was unable to for the check breath failed breath test, again. Wessell cooperated breath was then he was unable explained officer in asked to submit to submit to the officer precluded him voluntarily this the attempting from that the to submit explaining that the Glendive Police to maintain blood the option privileges State blood of Montana Alcohol/Drug Wessell § 61-8-402, had refused Wessell filed suspension hearing that blood, driver's with there needles. petition. were the driving no fact procedure The District and from questions Wessell Court Wessell as the indicating pursuant to challenging The District Motor Vehicle the what outcome of a stipulated factually The Court Court Division the parties heard sworn testimony 3 failure completed Court pending to test driving of his test had expressed himself. his Affidavit the District privileges means license. At the hearing, that because independent or urine of Justice, on his including officer his an privileges. his refused sample. Refusal driving reinstate his which instead The officer the Montana Department ordered of of needles as a result test. a breath, a petition He The officer have the Testing MCA, and seized stated testing. was not an option would be suspended regardless to the Wessell test. to he understood to the designated fear testing because to submit of but did not have the appropriate completed the take test test. test of a urine declined method to a urine Department as this a urine the integrity Wessell to to a blood he had a great taking offered offer that to test. Wessell that with occurred, a great fear of from the police then issued its findings of that Wessell's and vacated fact, Wessell conclusions driver's the license prior appeals the of law, and was properly reinstatement denial of order his of which concluded to suspension subject his driving privileges. petition. DISCUSSION Did refused the District to submit Court err to a test challenging the § 61-8-402, for blood was no Wessell's factual The test. of concluded alcohol issue conduct and in denying dispute constituted a legal determine the was correct. Mont. 459, 469, Section statute, Carbon Wessell his provides in that the issue. County Wessell District had petition court's v. 680, Union pursuant did Court under We review not Reserve take was conclusions Coal of of Co. the whether § 61-E-402, interpretation to MCA, law the (1995), to law 271 686. MCA, commonly part privileges, a "refusal" district 898 P.2d 61-8-402, driving before and was therefore whether his that MCA? There suspension when it known as the implied consent as follows: 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 by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two. The test or tests must be administered at the direction of a peace officer . . . . The arresting officer may designate which test or tests are administered. A test for alcohol must be given first, whether or not that test also tests 4 for drugs, and if of 0.10 or more, the test shows an alcohol concentration a test for drugs may not be given. i3i . If . a driver under arrest refuses upon the request of a peace officer to submit to a test or tests designated by the arresting officer as provided in subsection Cl), a test may not be given, but the officer shall, on behalf of the department, immediately seize the person's driver's license . . . . Wessell granted the first because statute asserts, for alcohol that tests the alternate ascertain for blood We have by disjunctive however, consecutive that he consented is than one test argues held to v. Strzelczyk the Jett petition to the breath and does not should test. the language alcohol have that authorize more consent. "test been He claims expressly to which he gave his or The State tests" and that Wessell refused function as an appeals allows to submit to court to test. that our what the Legislature looking his plain meant and to do that, meaning (1994), of the 264 Mont. words 153, if possible, the in 157, is statute. 870 P.2d 730, language was adopted by the Legislature in 732-33. The "test 1993 when it an alcohol than included test 0.10. singular or tests" has been given This to plural, of drugs. the provision amendment as it The singular if allowing the alcohol changed authorized nature the of the was not changed and the statute test alcohol tests for drugs, must be given and if first, the test testing language, still whether drugs language for once is less from the presence as to a test provides or not that shows an alcohol 5 for concentration a second test alcohol, for a test that, for I'm test also concentration of 0.10 or 61-E-402, tests" [then] more, a test MCA (emphasis language allowance alcohol and by the a drug then drugs added). adopted for for test drugs may not be given." We determine Legislature refers and not to for that the at the Section the "test or it added the time sequential testing consecutive tests for statute, therefore, for alcohol alone. Under test the for alcohol considered Rule of plain in language may be given. light of 23.4.201(31), drug sample for is a breath its printed Rule (i.e., blood ARM. and urine) the sample(s). analysis of 61-8-402, MCA, clearly a complete alcohol or test, Under not the achieved officer second method the for shows testing purposes when a breath has obtained, and a instrument." a full samples and complete ARM. Section for alcohol must the a test requiring analysis. biological as in results of concentration of be the 0.10 be given." a full a valid and complete breath statutory in other an alcohol may not for test 23.4.201(31), that forth instrument is breath defined definition, the result for language and therefore of test Rule test drugs above was within the also by its "if a test is analysis a final contemplates analysis more, The complete be set and complete breath by as one must a "test" considered "the only limitation "test" that is produced 23.4.201(31), of be a full program, is this must delivered, record However, provides test prescribed the definition analysis properly executed the ARM, which and alcohol The analysis of test constraints order to 6 achieve did analysis was exist. The not when he designated a test for alcohol. a Wessell because next asserts although cooperated he the as a result test with of § 61-8-402, MCA, disregard the did not officer his refusal submit to nor 5 a motorist's should the blood and was unable a disability. to 61-8-403, MCA, to submit be test excused he fully participate The State refusal argues in that provides the to a test the neither means to as designated by officer. We have previously is to encourage to testing. 217 person Johnson that the purpose for Division v. arrested of Motor 711 P.2d 815, 817; State 449, 451, P.2d 121, 123. in Mont. in subsequent We have 705 obtaining criminal held may comprise does have not individual attorney to 817. It gives a deficient capable may also of fully procedure the and 219 (1985), statute the evidence relevant serves for to may be implied, cooperate by prior to from a lack the actions the for test. of v. State test from an an 711 at Johnson, test the requesting cooperation Hunter a blood example repeatedly of a requested test. take by P.2d when a motorist when he or she is (1994), 264 Mont. 787. present cooperative. for This A refusal but performance completing 869 P.2d In to arise (1985), Christopherson uncooperative a refusal. be present MCA, and submit Vehicles v. reliable certain to be express failing § 61-8-402, proceedings. that motorist of DUI to cooperate 313, 310, state's use the stated interest Mont. 84, that alcohol case it is clear that Wessell consented and was cooperative 7 Wessell's to actions the twice breath in were testing attempting to achieve a valid test through fault that the Wessell, when asked explained that Wessell's his extreme He argues test. was unable Wessell individual asked district court be excused. 92, needles to to support his may be grounds The Griffiths statute, is consent the submit testing to factors his requested Idaho this This including test, Code § 18-8002 held to prevent the the test and this (1984). that if motorist fear is communicated 8 the should 1987), 744 fear of implied consent case. Idaho's implied requested by refusal to for was refused. forth can so if license sets The Idaho as a practical the test. test he of of for individual's a hearing the did a fear motive (Idaho an although he the but be excused. refusal their statute "that, a urine cooperated or of Idaho's of if to if for "why" because factor a blood seizure test should Griffiths not immediately submit mind is properly. a relevant that reinstated evidentiary statute, of provides (1984). listed, of the present determine license to interpreting from the this refusal is refusing specifically Code § 18-8002(4) may have state assertion for following to the Matter distinguishable motorist that decision, statute in when determining cites test, has fully to testing consider It operate blood was willing a test that submit a an individual in Wessell to but where argues to to to participate needles that provided. failed submit to participate Thus P.2d to of means machine he was unable fear the that prove a defendant any defendant of sufficient Supreme Court, matter to the is of from officer several refused with needles Idaho the cause." in such applying magnitude submitting at the to time of the test test. then there Griffiths, Section "whether have or for refuse. with cause for district an to determine to whether was a refusal section the the to allows of unwilling to cooperate case, officer was to the test 789. See Section After not blow hard enough to conduct other she stated make another attempt. unable the that the does to burden MCA. This whether the test was as simply the 869 P.2d proving that the refused to 869 P.2d at petitioner Hunter, attempts machine When they to submitting in the which officer returned enough thus 9 there Hunter, of failed officer case that in MCA, in or six she had performed the consider consented tests. the test. petitioner. the allow of individual Hunter to activate sufficient concluding MCA. The facts to participate the district 61-8-403(4), the does cause the it latitude whether that of five sobriety that the concluding 26-l-401, test. in Section refusal was the to why the there and examine was wrong only It provide test, § 61-8-403(4), was that the was sufficient if the and refused in a breath test or we stated wrong submit refuse but addressed refuse test." as to determine court a disability that not to a test. a result In does statute district to a hearing the there officer was willing We recently if testimony submit the individual 787. refusal to the refused inquiring to take for for discretion court provides motorist the individual cause 100. provision excusing the sufficient MCA, however, Although court at . . . the a specific occurred to 744 P.2d 61-E-403, determine not may exist tests determined to she did proceeded to the breath and would that she not had refused the test failed to meet officer at the and her from at In valid the fear at shows immediately facts test of is the regardless asthma their not The conclusion Advisory that that abilities Form signed he did not Wessell but inform the prevented any medical she was unable to perform. of being this Wessell able to a test inability of needles, that which completing to in District the the valid an test an individual under has test, that § 61-8-403(4), Hunter. the he under a breath a refusal to perform a if complete alcohol precludes For example, unable The which to disability or submit inability We determine in to for a psychological officer. a physical had a as stipulated. fear be considered Court officer's by the submit that consent so by willingness. the contested psychological this of upon not which disabling to the rationale was based to participating would MCA, and our test his and was physically inability did Hunter she introduce we accept doing case, of she him from prevented from from did that was not from equivalent individual it which disclosed this nor he was willing resulting as that 789-90. and therefore that We held any disability indicate case, was prevented perform of test, to of needles test proof test the hearing present a blood record of license. of a valid 869 P.2d Hunter, but time the her burden completing evidence to her seized to cooperated was precluded that testimony, and the officer, the blood to his from 10 test. fullest participating Wessell the refused Implied petitioner's The Consent testimony record physical in the also and the test shows mental as a result of a stipulated constitutes its a disability. interpretation Wessell's Reversed inability, We hold of inability willingness this psychological to 5 that 61-8-403(4), participate the which District MCA, in the by test in this Court case erred concluding regardless in that of his was a "refusal." and remanded for further proceedings opinion. < Justice We concur: 11 consistent with
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