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State v. Kuebler3/7/2000
APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Kenneth R. Neill, Judge presiding.
Submitted on Briefs: January 20, 2000
Clerk
1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
2. Joshua C. Kuebler (Kuebler) appeals from the denial of his motion to suppress a blood sample taken in the hospital while he was under suspicion of driving under the influence of alcohol. The justice court denied his motion to suppress, and after a bench trial, convicted Kuebler of DUI. Kuebler appealed to the Eighth Judicial District Court, Cascade County, and again moved to suppress the blood sample. The District Court denied the motion, whereupon Kuebler entered into a plea agreement under which Kuebler reserved the right to appeal the District Court's denial of the motion to suppress. We affirm the decision of the District Court.
3. On March 30, 1997, Officer Johnson of the Montana Highway Patrol was dispatched to the Benefis Healthcare East Campus in Great Falls to deal with an injured party (Kuebler) concerning an accident he had been involved in at an unknown location. When she arrived, Officer Johnson spoke with Kuebler who admitted that he was the driver of an automobile that had left the roadway and rolled onto the median. Officer Johnson observed that Kuebler had several injuries and required many stitches to his face and back. When speaking with Kuebler, she noticed a strong odor of alcohol, loud, slow and slurred speech, and glassy and bloodshot eyes. When she mentioned these symptoms to him, Kuebler admitted to Officer Johnson that he had been drinking.
4. Officer Johnson verbally informed Kuebler that he was under arrest. She then read Kuebler the Montana Department of Justice Implied Consent Advisory, verbatim. This form provided, in relevant part: " ou are under arrest for driving . . . a motor vehicle under the influence of alcohol [and/or drugs]." Officer Johnson then asked Kuebler to take a blood test and he agreed to provide a blood sample for testing of alcohol concentration. Officer Johnson observed as a registered nurse drew the blood sample. Officer Johnson then went to the accident scene to determine whether the vehicle had been left on the road. She located the vehicle and completed her accident investigation. The vehicle was towed from the scene and Officer Johnson returned to the hospital and issued Kuebler a Notice to Appear for driving under the influence . At the time she returned, the hospital was still treating Kuebler's injuries.
5. The State and Kuebler agree that State v. Widenhofer (1997), 286 Mont. 341, 950 P.2d 1383, is the governing precedent with regard to the question of whether an arrest has taken place under the circumstances presented here. An arrest involves three elements: (1) authority to arrest; (2) assertion of that authority with intention to effect an arrest; and (3) restraint of the person arrested. State v. Thornton (1985), 218 Mont. 317, 322-23, 708 P.2d 273, 277.
6. Widenhofer, like Kuebler, consented to the taking of a blood sample while in the hospital after a car accident. The officer twice read the Implied Consent Form to Widenhofer advising him orally that he was under arrest. Widenhofer, 286 Mont. at 345, 950 P.2d at 1385. Widenhofer was n
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