Walker v. State , 229 Mont. 331 ( 1987 )

No. 87-246
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
TOMMY LEROY WALKER,
Plaintiff and Respondent,
-vs-
STATE OF MONTANA,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Barbara Claassen, Asst. Atty. General, Helena
Patrick L. Paul, County Attorney, Great Falls, Montana
Jeff McAllister, Deputy County Atty., Great Falls
For Respondent :
Ralph Randono; Randono, Donovan & Macek, Great Falls,
Montana
Submitted on Briefs: Sept. 17, 1987
Decided: December 3, 1987
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Appellant, the State of Montana, challenges the decision
of the District Court of the Eighth Judicial ~istrict. We
reverse and remand for proceedings consistent with this
opinion.
On December 16, 1986, Respondent Walker twice refused
police testing to determine blood alcohol content. Both
refusals occurred following arrests by Great Falls Police
Officer Chris Hickman. After the first arrest, Walker posted
bond and returned to his car where Hickman arrested him for
the second time. The issue on appeal concerns the adequacy
of the State's notice on the consequences incident to
refusing police testing where a valid arrest for DUI occurs.
Before both refusals, Hickman read aloud to Walker the
following advisory consent form:
STATE OF MONTANA
IMPLIED CONSENT LAW
Advisory Form
Montana Law states, in part,
61-8-402 - Chemical blood, breath, or urine tests. (1)
Any person who operates a motor vehicle upon the ways of this
state open to the public shall be deemed to have given his
consent, subject to the provisions of 61-8-401, to a chemical
test of his blood, breath, or urine for the purpose of
determining the alcoholic content of his blood if arrested by
a peace officer for driving or in actual physical control of
a motor vehicle while under the influence of alcohol.
1. You are advised that:
(a) You are under arrest for driving or being in
actual physical control of a motor vehicle
while under the influence of alcohol;
(b) The results of the chemical test may be used
in evidence against you in any criminal
proceedings resulting from this arrest.
2. You are advised that:
(a) If you refuse to submit to a chemical test as
requested by the arresting officer, none shall
be given;
(b) If you refuse the test, the arresting officer
shall immediately seize your Montana driver's
license on behalf of the Motor Vehicle
Division;
(c) If your driver's license was valid and in
full force and effect at the time of your
arrest, the arresting officer shall issue a
72-hour driving permit.
3. You are advised that:
(a) If you have refused the chemical test, the
arresting officer shall forward to the Motor
Vehicle Division a sworn statement that you
refused.
(b) Upon receipt of the sworn statement, the
Motor Vehicle Division shall suspend your
driver's license and driving privilege for 90
days upon a first refusal; or shall revoke
your license and driving privilege for one (1)
year upon a second or subsequent refusal
within a five (5) year period. In either
case, no provisional or probationary license
may be issued.
4. You are advised that, in addition to any test
administered at the direction of a peace officer, you may, at
your own expense, have a physician or registered nurse of
your own choosing administer a test for determining the
amount of alcohol in your blood.
5. At your request, full information concerning the
test requested shall be made available to you or vour
attorney.
After reading the form to Walker after each arrest,
Officer Hickman asked Walker if he understood the form.
Walker responded each time that he understood, and refused
both of the tests to be administered by the police. Walker
made no inquiry concerning the availability of an independent
test.
Walker petitioned for reinstatement of his 1-icense. At
the hearing held pursuant to the reinstatement request,
Walker's counsel stated that the form misled Walker into
believing that if he refused to take the test administered by
the police, he forfeited his right to an independent test.
The District Court found the form misleading because the
phrase, "none shall be given," (emphasis added), in
paragraph 2(a), and the phrase, "in addition to any test
administered by the police officer," (emphasis added), i.n
paragraph 4, seem to require that the police test precede any
independent test. The lower court then ruled that State v.
Swanson (Mont. 1986), 722 P.2d 1155, 43 St.Rep. 1329,
controlled as a matter of law and reinstated Walker's
license. On appeal, the State points out that Walker
unequivocally refused the tests, and that Walker told Officer
Hickman that he understood the form.
Swanson mandates that the State refrain from frustrating
the criminally accused's right to an independent blood test
pursuant to § 61-8-405(2), MCA, for exculpatory evidence in a
criminal DUI prosecution. Swanson, 722 P.2d at 1158. This
Court also made it clear in Swanson that the criminally
accused DUI defendant had the right to an independent blood
test whether or not the accused agreed to submit to police
BAC testing. Swanson, 722 P.2d at 1157. However, the
current case concerns the application of 5 61-8-402, MCA,
which provides a civil penalty for refusing to take the blood
test offered by the arresting police officer. The rule from
Swanson does not control interpretation of this statute, and
the District Court incorrectly applied Swanson. See State
ex. rel. Majerus v. Carter (Mont. 1984), 693 P.2d 501, 504,
41 St.Rep. 2468, 2470. This is true because the "revocation
of a driver's license is a civil sanction, not a criminal
penalty." In the Matter of the Petition of Burnham (Mont.
1985), 705 P.2d 603, 607, 42 St.Rep. 1342, 1346. And
Walker's "refusal to submit to a chemical test is an issue
separate and distinct from whether or not he was guilty of
DUI." Burnham, 705 P.2d at 608.
Although Swanson's criminal due process guarantees do
not apply to license suspension under S 61-8-402, MCA, the
State must still show that the defendant refused police
testing in order to revoke the defendant's driver's license.
Blake v. State (Mont. 1987), 735 P.2d 262, 263, 44 St.Rep.
580, 581. And failure to properly inform the defendant of
the consequences of refusing to take the test may invalidate
the penalty. In re the Matter of Orman (Mont. 1986), 731
P.2d 893, 895, 43 St.Rep. 2228, 2231. In the current case,
Walker argues that Orman supports the lower court's license
reinstatement.
In Orman, the defendant refused to take the police test
for the second time within five years. A second refusal
within five years results in the loss of the license for one
year. The arresting officer in Orman did not know that the
defendant had refused the test before, and told the defendant
that refusal would result in only a ninety day suspension.
Despite the mistake, the State took the license for one year.
The District Court ordered that the license be returned to
the defendant, and we affirmed holding that:
While we do not choose to set forth any rule
controlling the information to be given by an
officer at the time of such an arrest, we conclude
in this specific set of circumstances, that Mr.
Orman's refusal to submit to the breathalizer test
contained a condition of a ninety day driver's
license suspension.
Orman, 731 P.2d at 895.
The facts in the current case distinguish it from Orman.
In Orman, the arresting officer unintentionally but
affirmatively misled the defendant into believing that his
refusal carried a lesser penalty than the penalty that the
State actually imposed. In the current case, the arresting
officer read a form which contains language from S 61-8-405,
MCA, and S 61-8-402, MCA. Although, as the District Court
found, the mixing of the language from these two statutes
could lead an individual to miscontrue the penalties incident
to refusing the test, the form does not affirmatively
mislead, and Walker voiced no confusion.
Furthermore, unlike the information given in Orman, the
form did not induce Walker to believe that the penalty for
refusing the test was less than what the State imposed.
Rather, Walker claimed that he believed the penalties for
refusing the test were greater than they actually were, i.e.,
Walker claimed he thought he forfeited not only his license,
but also his right to independent testing. In regard to the
license, however, Walker got what he bargained for; by
refusing the testing, he lost his license. Any confusion
from the form over Walker's right to independent testing does
not excuse Walker's refusal to be tested, and neither Swanson
nor Orman control.
This case warrants application of Johnson v. Division of
Motor Vehicles (Mont. 1985), 711 P.2d 815, 42 St.Rep. 2045.
In Johnson, the defendant claimed that confusion over his
Miranda rights invalidated the suspension of his license. In
response we stated that:
there is no evidence that respondent was confused
by the apparent conflict between the Miranda
warnings and the lack of a right to an attorney
during a sobriety test. There is only counsel's
bald assertion to that effect. Under these
circumstances, respondent will not be heard to
argue that he was confused by his rights under
Mira.nda. (Emphasis in original. )
Johnson, 7 1 1 P.2d at 8 1 8 . As in Johnson, the scope of review
here is broad, and we are free to make our own findings.
Johnson, 711 P.2d at 8 1 6 . Following both arrests, Walker
unequivocally stated that he understood the consequences of
refusing the tests. After the first refusal, he returned to
his car and drove from the scene. Walker's conduct prevented
the State from ascertaining through testing whether or not
alcohol impaired his driving. Under these circumstances, as
in Johnson, the bald assertion long after the arrest tha.t
confusion prevented an effective refusal fails to overcome
the suspension mandated by the implied consent statute. We
reverse and remand for proceedings consistent with this
opinion.
//
We Concur: /"
Chief Justice
C
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