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Johnson v. Div. of Motor Vehicles12/31/1985
Submitted on Briefs September 19, 1985.
The State appeals a Ravalli County District Court order requiring the State to restore a driver's license seized under Montana's Implied Consent Law when the driver failed to submit to a breathalyzer test requested by a police officer. The issue on appeal is whether respondent James Johnson "cured" his failure to submit to the breathalyzer test by initiating a blood alcohol test a short time later. We hold that the later test did not cure respondent's prior failure to submit and, accordingly, we reverse.
The only evidence in the District Court file is the result of the blood alcohol test performed on respondent. We piece together the facts of this case from the District Court order and from counsels' unsworn statements in the transcript. As far as can be pieced together, the facts are these.
At approximately 1:00 a.m. on March 24, 1985, respondent was arrested for driving a motor vehicle while under the influence of alcohol. Deputy Sheriff Capp, the arresting officer, took the respondent to the Ravalli County Courthouse. Officer Capp informed respondent of the Miranda warnings and also of respondent's rights and duties under Montana's Implied Consent Law. Officer Capp requested that respondent take a breathalyzer test and respondent replied by asking if he could have an attorney present during the test. Officer Capp told respondent that he did not have that right. Officer Capp again read respondent his rights and duties under Montana's Implied Consent Law and respondent requested the presence of an attorney. Deputy Capp again stated that respondent had no right to an attorney for this test. Respondent's counsel concedes that respondent was requested a third time to submit to the breathalyzer test. Respondent again asked about the possibility of having a lawyer present. Officer Capp finally deemed respondent's answers as a refusal to submit to the test. Respondent's driver's license was seized by the police under the Implied Consent Law because of his failure to submit to the breathalyzer test.
Respondent may not have expressly refused to submit to the sobriety test. Similarly, respondent may have been confused by the apparent conflict between the Miranda warnings, which cited his right to an attorney (during custodial interrogation), and the lack of a right to an attorney during the sobriety test.
Respondent was booked and jailed following his refusal to submit to the test. He asked the jailer that he be taken to the hospital for an examination because his wrists had apparently been bruised by police handcuffs. Once there, respondent asked that a doctor take a blood alcohol test but requested that the results not be made available to the police. Respondent contends that this blood test was taken approximately 20 minutes after respondent's failure to submit to the police breathalyzer test. The test was taken for respondent's personal use.
On March 28, 1985, respondent's attorney filed a petition for restoration of driver's license. On April 3, 1985, a hearing was had on the petition. No witnesses testified but both respondent's attorney and the County Attorney made statements to the court. Respondent's attorney, on behalf of respondent, offered the results of the blood alcohol test to the State for its prosecution of the DUI case against respondent. The results of the test showed that respondent's blood alcohol level was .20 when he was at the hospital, an undetermined time after his arrest. At the hearing, respondent's counsel argued that respondent did not expressly refuse the breathalyzer test and that respondent may have been confused by the apparent conflict between the Miranda
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