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State v. Turbiville12/15/2003
Submitted on Briefs: September 26, 2002
Larry Turbiville (Turbiville), the holder of a North Dakota driver's license, was convicted in Fallon County Justice Court for driving a motor vehicle while under the influence of alcohol in violation of § 61-8-401, MCA (1997). Turbiville appealed his conviction to the Sixteenth Judicial District Court of Fallon County for a trial de novo and moved to suppress the evidence obtained from his breath tests. Following the court's denial of his motion, Turbiville pled guilty to driving while under the influence of alcohol, reserving his right to appeal the District Court's denial of his motion to suppress. Turbiville now appeals the denial of his motion to this Court. We affirm.
We rephrase Turbiville's issues on appeal as follows:
Did the District Court err in denying Turbiville's motion to suppress the results of his breath tests, which was premised on the basis that he was provided misleading information about the ramifications of his failure to take the test?
FACTUAL BACKGROUND
On the evening of August 20, 1998, Officer Pat Harrison of the Montana Highway Patrol (Officer Harrison) was patrolling north on Montana Highway 7 in Fallon County when he came upon a Ford pickup, driven by Larry Turbiville, which he observed crossing over the center line. Officer Harrison turned his vehicle around and began following the pickup. In the course of several miles, Harrison observed the pickup again cross over the center and fog lines. He also noticed that the vehicle was operating with expired registration tags. Officer Harrison activated his overhead lights and the pickup came to a stop on the side of the road.
As Officer Harrison approached the vehicle, he smelled what he believed to be alcohol coming from Turbiville. Harrison ordered Turbiville out of the vehicle and into the patrol car where he asked him if he had been drinking. When Turbiville responded that he had had "one or two," Officer Harrison noticed that Turbiville's speech was slurred. After completing a citation for expired registration, Officer Harrison administered a Horizontal Gaze Nystagmus test (HGN test) to Turbiville. He then read a Preliminary Alcohol Screening Test Advisory, stating in relevant part:
Under Montana law, I have the right to ask you to take a preliminary breath test to estimate your alcohol concentration level. You may refuse to take this test. However, if you do, your driver's license will be suspended for six months. If you have refused to take a similar test in the past 5 years, your driver's license will be revoked for one year.
Will you take a preliminary breath test?
Turbiville, a North Dakota resident and holder of a North Dakota driver's license, was provided no additional information concerning his rights regarding the preliminary breath test (PBT). In particular, Officer Harrison did not advise Turbiville that he could refuse to take the test and challenge the seizure of his license in district court.
After hearing the advisory, Turbiville submitted to the PBT, which estimated a body alcohol content in excess of the legal limit. As a result, Turbiville was placed under arrest for driving under the influence of alcohol (DUI) and transported to the Fallon County Sheriff's Office. Upon arriving at the Sheriff's Office, Turbiville was asked to submit to a test on the Intoxilyzer 5000, a non-portable device designed to measure the body's blood alcohol content, and read the Montana Department of Justice Implied Consent Advisory, which states in pertinent part:
If you refuse this test, your driver's license will be seized and suspended
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