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Strode v. Dept. of Justice11/12/1998
APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Mike Salvagni, Judge presiding.
COUNSEL OF RECORD:
Submitted on Briefs: October 22, 1998
. 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.
. Bud Harvey Strode (Strode), appearing pro se, appeals from the Findings of Fact, Conclusions of Law and Order of the Eighteenth Judicial District Court, Gallatin County, which denied his Amended Petition for Reinstatement of Driving Privileges. We affirm.
BACKGROUND
. Strode was driving his vehicle around dusk on January 5, 1997, when he was observed by Montana Highway Patrol Officer Sam Hasz (Hasz), who was in the oncoming lane of travel. Hasz noticed that Strode's vehicle lights were not on and, because it was difficult to see approaching vehicles if their headlights were not on, he flashed the headlights of his patrol vehicle once. Strode's vehicle crossed into Hasz's lane of travel and Hasz took evasive action to avoid a collision. Thereafter, Hasz made a U-turn, turned on his vehicle's top lights and followed Strode. Strode did not stop; instead, after traveling approximately 1/4 mile, he turned off the highway onto a westbound road. Hasz followed Strode for approximately 200 yards before Strode pulled over.
. Strode got out of his vehicle and Hasz asked him to get back inside. Hasz asked for Strode's driver's license, registration and proof of insurance and Strode did not produce either the license or the registration; he gave Hasz proof of insurance for another vehicle. Hasz noticed that Strode's vehicle license plates had expired in 1982.
. During their conversation, Hasz smelled a strong odor of alcohol on Strode's breath; Strode stated that he had been working on his vehicle's radiator and the odor was Prestone. Hasz later testified that he knew he was smelling alcohol rather than Prestone.
. Hasz asked Strode to take a preliminary breath test (PBT) at the scene and Strode agreed, but kept attempting to grab the PBT instrument after being told not to do so. Strode's first breath was too weak, which Strode blamed on a lung problem and dentures. On his second try, he registered a .126 breath alcohol concentration (BAC). Hasz subsequently gave Strode the horizontal gaze nystagmus test and Strode scored five points out of a possible six, indicating an 80% likelihood that Strode's BAC was over .10.
. Hasz arrested Strode for driving under the influence of alcohol (DUI), advised him of his Miranda rights, placed him in the patrol car and left the scene. He explained to Strode that he was going to ask Strode to take a blood test because of the difficulty Strode had with the breath test; Strode replied that he was not very fond of needles. At the local hospital, Hasz read Strode the implied consent advisory form which states, in pertinent part, "You must decide to take or refuse this testing without talking to an attorney" and asked Strode to take a blood test. Strode was permitted to go to the bathroom and, thereafter, he asked--and was allowed--to read the advisory form. A few minutes later, Hasz asked Strode if he was going to take the test and Strode said he was not sure. Strode then asked if he could talk with an attorney and Hasz indicated to him
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