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State v. Simmons12/14/2000
APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Stillwater, Honorable G. Todd Baugh, Judge Presiding
Submitted on Briefs: June 15, 2000
1 Brian Paul Simmons pled guilty to driving under the influence (DUI), reserving his right to appeal the denial of his motion to suppress evidence on two grounds. We affirm the decision of the Thirteenth Judicial District Court, Stillwater County.
2 The issues are:
3 . Did the District Court err in denying Simmons' motion to suppress the results of his breath test on grounds that prior to taking the test Simmons was provided erroneous and misleading information as to the ramifications of his taking or not taking the test?
4 . Did the court err in denying Simmons' motion to suppress his answers to questions on grounds that he had stated his wish to have an attorney present?
5 Simmons was arrested for DUI on Highway 78 in Stillwater County, Montana, during the early morning hours of December 29, 1995. Following his arrest, he was taken to the Stillwater County Sheriff's Office, where an audiovisual tape was made of the proceedings.
6 Police Officer Donald Hardesty, of Columbus, Montana, read Simmons the Montana Implied Consent Advisory concerning the administration of testing to determine the level of alcohol in the blood. Among other things, this form states:
(2) If you refuse this testing, your driver's license will be seized and suspended for six months.
(3) If you have refused similar testing within the past five years and you refuse again today, your driver's license will be seized and revoked for one year.
(4) You will not be eligible for a probationary driver's license during the suspension or revocation.
After reading Simmons the Implied Consent Advisory, Officer Hardesty requested a breath sample and Simmons complied.
7 Officer Hardesty then read Simmons his Miranda warnings from another form. At the end, he read a series of three questions from the form. The first question was, "Do you understand each of these rights I have explained to you?" Simmons answered, "Yes, sir." The second question was, "Having these rights in mind, do you wish to talk to me now?" Simmons replied, "Sure." The officer asked, "That's a yes, right?" and Simmons replied, "Yes." The third question was, "Do you wish to have an attorney present?" Simmons first replied, "What am I being charged with?" to which Officer Hardesty responded, "I'm not sure all the charges, but this is in reference to driving under the influence of alcohol." Simmons then said, "Okay, yes." Officer Hardesty marked on the Miranda form that Simmons answered "Yes" to the question, "Do you wish to have an attorney present?" At that point, the following exchange occurred:
Officer Hardesty: Okay, Brian, could you come up here and see if I wrote down the things that you said, and if I checked the ones that you answered, please sign here. I asked you do you wish to have an attorney present. Do you want an attorney present or no?
Simmons: I do not wish to have an attorney present just for this part, no.
Officer Hardesty: So you do not wish to have an attorney present?
Simmons: No, not at this point.
Officer Hardesty: So, I am going to change this because you said "yes" before. So, I am going to change it. Okay, so you can see my change, "Do you wish to have an attorney present? No." Is that correct?
Simmons: Okay.
Officer Hardesty then interrogated Simmons, asking him among other questions, "Have you been drinking?" to which Si
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