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State v. Zakovi4/12/2005
kaldie (1978), 179 Mont. 283, 587 P.2d 1298, and State v. LaFlamme (1976), 170 Mont. 202, 551 P.2d 1011. The State argues this is Zakovi's burden pursuant to the implied consent provisions of § 61-8-402(1), MCA (2001), and our holding in State v. Turbiville, 2003 MT 340, 318 Mont. 451, 81 P.3d 475.
However, neither party cites authority directly on point. Neither Kirkaldie nor LaFlamme dealt with DUI situations involving the implied consent statute. Turbiville was a DUI case which recognized the option to refuse a blood test is a matter of grace bestowed by the Legislature, but did not address the burden of proof issue. We note that " t is not this Court's job to conduct legal research on the [parties'] behalf . . . to develop legal analysis that may lend support to that position." Johansen v. State Dept. of Natural Res. and Conservation, 1998 MT 51, 24, 288 Mont. 39, 24, 955 P.2d 653, 24. Further, because disposition of this issue does not turn on resolving the burden of proof question, we deem it appropriate to resolve the issue another day when we may have more complete briefing on this question. For purposes of this appeal, we will assume that the State had the burden of proving that Zakovi consented to providing the blood sample.
To determine whether a defendant voluntarily gave consent, we examine the totality of the circumstances and whether there exists substantial evidence in the record to support the court's conclusion that the defendant's consent was voluntary. See State v. Nelson (1997), 283 Mont. 231, 237, 941 P.2d 441, 445.
Upon examination of the record, we conclude the State offered substantial evidence establishing Zakovi's voluntary consent. First, Officer Cohenour testified that he advised Zakovi of the right to refuse consent, pursuant to § 61-8-402(4), MCA (2001), before requesting Zakovi to sign the Consent to Blood Alcohol Examination Form (Consent Form). Second, Zakovi's signature on the Consent Form noted his voluntariness to submit a blood sample. It states, "I, the undersigned, hereby consent to the drawing of a blood sample of the undersigned by St. Peter's Community Hospital employees . . . ." Third, the State offered the testimony of Binfet that her compliance with Officer Cohenour's request was contingent on Zakovi's understanding of the Consent Form; that, before Zakovi acknowledged consent, she informed Zakovi that his signature on the Consent Form authorized the hospital to withdraw a blood sample and deliver it to Officer Cohenour; that she read the form to him, he understood and signed the Consent Form.
Furthermore, Zakovi's repeated questioning about the necessity of the sample is not dispositive of the issue. His statements were not refusals of the test; he simply questioned whether Officer Cohenour needed a blood sample in light of his admission that he had been drinking prior to the accident. Following Officer Cohenour's explanation that a test was still necessary, Zakovi proceeded to give his consent. We conclude that substantial evidence supports the District Court's conclusion that Zakovi voluntarily gave consent to submit a blood sample.
Turning to Zakovi's second argument, the record contradicts his contention that his consent to drawing a sample did not extend to ordering a BAC analysis. The Consent Form "authorize the hospital and its employees to deliver the blood sample to any peace officer requesting the same . . . ," and moreover, noted that Officer Cohenour's signature was a request that a blood sample be drawn for the purpose of a BAC analysis. Binfet's testimony that she advised Zakovi of this authorization and determined he understood before withdrawing a blood sample is further evide
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