Ten Eyck v. State ( 1992 )

NO. 92-127
I N THE SUPREME C U T O THE STATE O M N A A
O R F F OTN
1992
J M E S STANLEY TEN EYCK
P e t i t i o n e r and A p p e l l a n t ,
STATE O F M N A A
O T N ,
DEPARTMENT O JUSTICE,
F
Respondent and F.esponden.t.
APPEAL F O :
R M D i s . t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f F l a t h e a d ,
The Honorable R o b e r t Boyd, J u d g e p r e s i d i n g .
COUNSEL O F RECGRD:
For A p p e l l a n t :
David M. O r t ! e y , A t t o r n e y a t TJaw, K a l i s p e l l , Montana
F o r Resporl6ent:
Hon. Marc Kacicot, Attorney G e n e r a l , Helena,
Montana
K a t h y See1 e y , Assistant Attorney General, H e l e n a ,
Montana
Ted 0 . L y ~ a p u s , County A t t o r n e y , K a l i s p e l l , Montana
E d C o r r j g a n , D ~ p u t y County A t t o r n e y , Ka1.ispel I.,
Montana
S u b m i t t e d on B r i e f s : June 2 5 , 1 9 9 2
AUGS
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- 1992
, Decided: August 6 , 1992
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+,- : 4:182 Mont. 24, 594 P.2d 333. In Johnson, the
statute provided for thirty days' written notice of the hearing to
the county attorney; it was amended in 1983 to be limited to a ten-
day time period. Here the notice requirements of § 61-8-403, MCA,
have been fulfilled. In appellant's reply brief, he acknowledges
that he was unaware of the decision in Johnson. Ten Eyck sets
forth no support for his claim that he was denied due process. He
received a District Court hearing within nineteen days after he
filed his petition for judicial review of his driver's license
5
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t b r
suspension. There is no evidence presented before the District
Court as to whether the appellant was affected by the suspension or
even whether he complied with the suspension of his license. He
apparently had possession of his driver's license for at least part
of the time between his refusal and the hearing. The law provides
that Ten Eyck was entitled to a 72-hour driving permit following
the seizure of his license and could have obtained a stay of
suspension of his license pending his appeal. See Matter of
Vinberg (1985), 216 Mont. 29, 699 P.2d 91.
As to the second issue presented to us, whether the District
Court erred in holding that Ten Eyck was placed under arrest prior
to his refusal to submit to a blood test to determine the presence
or amount of alcohol in his body, we find that the record does not
support the District Court's holding.
The record does not support a finding that the appellant was
placed under arrest or ever physically restrained by Officer King.
It is evident that on both direct and cross-examination there is
considerable question whether Officer King directly indicated to
Ten Eyck, either at the scene of the accident or throughout their
discussions, that he was under arrest. Ten Eyck was allowed to go
to his house while an investigation was made by the Officer; the
Officer allowed Ten Eyck's wife to take her husband to the hospital
and it was not until several hours after the accident and after he
had been read the implied consent form, that Ten Eyck had any
reason to believe he could not walk away free; after Ten Eyck
refused to take the blood test, Officer King left the hospital and
Ten Eyckts wife took Ten Eyck home; no citations were issued; no
court dates were set; and Ten Eyck had no reason to believe that at
any time during this period he was under arrest.
On this record we conclude that Ten Eyck was not arrested and
the subsequent suspension of his driver's license was unlawful and
said suspension should be rescinded. We reverse the District Court
in this matter and direct the court to reinstate James Stanley Ten
Eyck's driver's license. Reversed and remanded.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur: /