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State v. Klinkhammer2/3/1993
, 50 St.Rep. 92
Submitted on Briefs October 14, 1992.
Defendant and appellant, Michael Klinkhammer, appeals from the decision of the District Court of the Fourth Judicial District, Missoula County. Defendant was charged with driving under the influence of alcohol, second offense. Defendant's motion to dismiss the charge was denied by the District Court. Following the court's denial of his motion to dismiss, defendant entered a conditional plea of guilty to the charge. Defendant's motion to dismiss the charge was based on his contention that his due process rights were violated in that he was not allowed to obtain an independent test to determine the amount of alcohol in his body. The State argued that he did not request such a test and that his due process rights were not violated. The District Court agreed with the State and denied defendant's motion to dismiss. Defendant appeals. We affirm.
The only issue raised on appeal is whether the District Court was clearly erroneous in determining that defendant's due process rights were not violated in relation to obtaining an independent test to determine the amount of alcohol concentration in his body.
In the early morning hours of June 23, 1991, defendant was stopped and arrested by a Missoula County Deputy Sheriff for driving under the influence of alcohol. Defendant was taken to the Missoula County Sheriff's Office for processing. These proceedings were recorded by videotape.
Upon arriving at the sheriff's office, the arresting officer explained to defendant Montana's implied consent statute found at Section 61-8-402, MCA. The officer explained that if defendant refused to submit to a test at that time to determine the concentration of alcohol in his body, the officer would be required to seize his driver's license. Additionally, the arresting officer informed defendant that in addition to the test being offered at that time, defendant could obtain an independent test at his own expense. Defendant was reluctant to take the offered test and requested instead that a test be administered by his doctor. As the videotape recording of these proceedings indicates, defendant apparently misunderstood the implied consent law as it was explained to him and believed that he could refuse the test being offered by the officer, but still keep his license by obtaining an independent test on his own. The officer explained several times to defendant that the independent test could be obtained in addition to the offered test, but that refusal of the offered test would result in the immediate seizure of his driver's license, regardless of any independent test defendant might later take. Once defendant understood that his refusal to take the offered test would result in the immediate seizure of his driver's license, he consented to take the offered test.
Following the administration of the breath test by the officer, the videotape recording indicates that defendant did not request an independent test in addition to the administered test. There is no allegation that defendant requested an independent test at any time subsequent to the conclusion of the videotape recording. Defendant was released from jail on bond between 5 and 6 a.m., approximately two to three hours after taking the intoxilyzer test.
Defendant, representing himself, was found guilty by a jury in Justice Court of the offense charged. Defendant appealed to the District Court. In District Court, defendant, as he had done in Justice Court, moved to dismiss the driving under the influence charge. The basis for this motion was defendant's contention that his due process rights had been violated when he was not given a
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