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Strode v. Dept. of Justice11/12/1998
n a number of cases, but have declined to adopt it pending presentation of a case which would warrant its application, see Gentry, 282 Mont. at 496, 938 P.2d at 696 (citations omitted). It is necessary to first determine whether the facts and circumstances of the case would warrant application of the doctrine in the event we adopted it. Gentry, 282 Mont. at 496, 938 P.2d at 696. Here, the District Court did not directly address Strode's confusion doctrine arguments and Strode contends that the facts and circumstances of this case warrant application of the doctrine. We disagree.
. As we observed in Gentry, whether a person is confused is a question of fact which must be established by sufficient evidence. Gentry, 282 Mont. at 497, 938 P.2d at 696 (citation omitted). Moreover, a petitioner challenging a suspension of driving privileges carries the burden of establishing that the suspension was invalid. Gentry, 282 Mont. at 494-95, 938 P.2d at 695 (citations omitted). Here, Strode did not testify that he was confused by the sequence of the Miranda warning and the advisory consent form stating that he was not entitled to an attorney before taking or refusing the test. Moreover, Strode affirmatively testified that he refused the test because of an inability to perform the test. No mention was made of confusion over his right to consult an attorney before deciding whether to submit to the test.
. Based on this record, Strode clearly did not establish facts and circumstances which would warrant application of the confusion doctrine and, as a result, we need not consider this issue further. We hold that the District Court did not err in failing to conclude that the confusion doctrine applies in this case.
. 3. Did the District Court err in failing to conclude that Strode's informed consent to the blood test is necessary before he can be required to submit to that test?
. Strode's arguments relating to informed consent are, at best, difficult to follow. Moreover, we observe that his proposed findings of fact and Conclusions of law in the District Court did not address the subject in any way. Thus, it is questionable whether he is in a position to assert error in this regard.
. In any event, the implied consent statutes clearly do not require an arresting officer to obtain informed consent for a blood alcohol test or address the subject in any way. Furthermore, while Strode cites to various federal regulations which purport to relate to informed consent, he advances no statutory or case law authority supporting his position, as required by Rule 23(a)(4), M.R.App.P. Absent such authority, and in light of both § 61-8-403, MCA, and our cases (see, e.g., Gentry, 282 Mont. at 495, 938 P.2d at 695) limiting a district court's review in driving privilege reinstatement proceedings to three issues--none of which directly touches on the matter of informed consent, we hold that Strode has not established any error by the District Court in this regard.
. Affirmed.
KARLA M. GRAY
We concur: J. A. TURNAGE, W. WILLIAM LEAPHART, JIM REGNIER, & TERRY N. TRIEWEILER.
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