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State v. Minkoff2/25/2002
APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Jeffrey Sherlock, Judge presiding.
Heard: November 27,2001
Submitted: December 5,2001
Decided: February 25,2002
A jury convicted Allen Francis Minkoff of driving under the influence of alcohol (DUI) and the First Judicial District Court, Lewis and Clark County, sentenced him and entered judgment accordingly. Minkoff appeals.
Minkoffs first issue on appeal is whether the District Court erred in failing to dismiss the charge against him on grounds that his right to have an independent blood test was frustrated when the arresting officer told him a blood test would result in a higher alcohol reading than the breath test. Because we reverse on this issue, we do not reach the other issues Minkoff raises.
BACKGROUND
A Helena, Montana, police officer stopped Minkoff on suspicion of DUI early on the morning of January 3 1,1999. Based on his performance on field sobriety tests, Minkoff was arrested and taken to the Lewis and Clark County Detention Center. There, the ofticer read him the implied consent form, which included a provision informing Minkoff of his right to have a doctor or nurse administer an independent test for alcohol or drugs at his own expense, and asked him to take a breath test.
After being read the implied consent form, Minkoff asked the officer whether he should get an independent blood test. Initially, the officer replied that he could not advise Minkoff and that an independent blood test would be given only at Minkoffs own expense.
The following exchange, recorded on a videotape which is part of the record on appeal, then took place:
"MINKOFF: What should I do? . Is there any difference between the blood test and the breath test?
OFFICER: Yeah, but the blood test comes out with the exact amount and it's going to be higher than what the breath test is.
MINKOFF: So, it's going to be worse?
OFFICER: It's going to be higher on the blood test, but the blood test isn't mine. The blood test, if you wanted it, would be . . it would be yours, it would be at your expense.
MINKOFF: Well, thank you for that."
Minkoff then took the breath test, which measured his breath alcohol concentration at .167.
He did not request an independent blood test.
After a jury convicted Minkoff of DUI, the District Court sentenced him and entered judgment. Minkoff appeals.
DISCUSSION
Did the District Court err in failing to dismiss the charge against Minkoff on grounds that his right to have an independent blood test was frustrated when the arresting officer told him a blood test would result in a higher alcohol reading than the breath test?
Minkoff moved the District Court to dismiss the charge against him on the basis that he was denied due process of law. He contended he did not exercise his right to an independent blood test because of the ofticer's response to his inquiry about whether to get the blood test. The District Court denied his motion and Minkoff asserts error.
A district court's grant or denial of a motion to dismiss in a criminal cast presents a question of law which we review de novo, State v. Sidmore (1997), 286 Mont. 218,223,951 P.2d 558, 562 (citation omitted).
It is undisputed that a person accused of a criminal offense has a due process right to obtain existing exculpatory evidence. See State v. Swanson (1986), 222 Mont. 357,360,722 P.2d 1155, 1157. It also is undisp
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