*1 ex MIKE MONTANA, McGRATH, STATE OF rel. Attorney of Montana, General
Relator, MONTANA TWENTY-FIRST JUDICIAL COURT, DISTRICT THE HONORABLE Judge, JEFFREY H. LANGTON, District Respondent. No. 01-536. 28, 2001.
Decided December
issues: in this jurisdiction 1. exercise matter? Whether should Llewellyn’s in suppressing the District Court erred Whether for emergency medical authorities
blood test results obtained test refused to consent to a blood Llewellyn treatment implied consent request under pursuant police officer’s Montana’s statute? control, Order reverse the District Court’s We assume further and remand for Llewellyn’s suppress motion
granting proceedings.
BACKGROUND 2000, rear-ended another 28, Llewellyn allegedly September On Highway at of Eastside light at a red the intersection stopped vehicle Llewellyn, significant who suffered Highway County. 93 in Ravalli accident, a breath injuries as a of the refused submit to result room of transported emergency at scene. She was then to the County Community Medical Center in Missoula for treatment. While treatment, Llewellyn highway was undergoing asked Montana patrol 61-8- refused and her refusal documented However, during emergency officer. course room treatment, Llewellyn upon blood was drawn from the order of a physician diagnosis of medical and treatment. The lab tests revealed the legal alcohol content above allowable limit. The results the prosecution pursuant were obtained to an investigative subpoena. Llewellyn filed a suppress motion admission
test obtained for medical and treatment diagnosis purposes claiming the State could compliance required not show with the in the collection of the blood test evidentiary purposes; and that she withdrew her consent to a blood responded test. The State and contended that blood tests taken for diagnosis treatment as “other evidence” to our decision State v.Newill P.2d granted Llewellyn’s concluding motion decision Newill *3 distinguishable from the case at hand since the defendant thus, to a Llewellyn; Newill consented unlike admitting Llewellyn’s blood test obtained results for medical treatment would “render null and right provided void her to refuse consent” 61-8-402(4), MCA District Court then concluded that “other competent eye evidence” could include testimony witness Llewellyn’s manner concerning of driving, appearance, gait, breath smell, etc., but could not include medical treatment Llewellyn previously statutory had exercised her right and refused to to a determining submit blood test for her (“BAC”). blood alcohol content The District Court concluded that permit allow the admission of such an run evidence would end around implied Legislature consent statutes which the Montana could not have intended. The District did not address whether Llewellyn’s collecting were followed test. filed the Subsequently, petition supervisory State writ of contending control before us District order of Court’s suppression directly contrary is to our decision in Newill.
494 OF
STANDARD REVIEW dispute, Where the facts are not review district court’s ruling to whether the district suppress plenary on a motion to is Devlin, correctly State v. 1999 interpreted applied court law. omitted). (citation 90, ¶7, ¶7, 215, 1037, MT P.2d 980
DISCUSSION 1 ISSUE in this jurisdiction Whether we should exercise matter? control is when a “district court is Supervisory appropriate which, uncorrected, if proceeding based on a mistake of law would remedy injustice, by appeal cause and where the significant Court, v. 1998 MT inadequate.” Park Montana Sixth Judicial District ¶13, 1267, ¶13, Mont. P.2d Given the State’s 961 ¶13. ability evidentiary ruling, previously limited an we have appeal the introduction of evidence prevent exercised control ruling by where a later court decision would be correction ex Mazurek District Montana Fourth ineffective. State rel. Court of 349, 353, Judicial 477. As District herein, conclude that the District Court is subsequently discussed we if the proceeding Additionally, under mistake of law. District Court’s uncorrected, would be without an mistake of law left adequate remedy Accordingly, grant on we the State’s appeal. original jurisdiction over this matter to Article accept 17(a), VII, 2(2), Constitution, M.R.App.P. Montana and Rule Section ISSUE Llewellyn’s suppressing Court erred in Whether emergency treatment test results obtained medical authorities for to consent to a blood test purposes when refused statute? police request implied to a under Montana’s officer’s (1999), commonly known as Montana’s Section or statute, the consensual collection of blood governs persons driving arrested for under the breath test from officer. drugs pursuant from request influence of alcohol (10) “[t]his expressly Subsection states that section tests, used of medical samples, analyses ... injured specifically motorist....” In Newill treatment or care *4 relative implied of consent laws applicability Montana’s addressed injured of an for and treatment diagnosis to blood drawn medical (1995), MCA concluded motorist and §
495 purposes. blood tests taken for medical treatment in injuries The Defendant suffered head an automobile Newill During hospital, physician accident. treatment at the the attending sample diagnostic part took a as of blood and treatment procedure. previously normal Newill had to a blood hospital consented requested under an officer, medically give but unable to one. Evidence Newill’s of analysis physician taken was admitted into evidence and Newill appealed. Newill contended that the taken should not be admitted as evidence of her blood alcohol content. We determined in Legislature Newill the Montana had
provided evidentiary provisions
of blood tests
taken for
61-8-404(1)(a),
(1995),
medical treatment
MCA
§
provides
any
which
“evidence of
amount
measured
or detected
presence
drugs
of alcohol or
in the
at
person
alleged,
the time of the act
admissible”;
person’s
shown
...
and §
(1995),
MCA
which
provisions
states that
“[t]he
do
any
not limit the introduction
other
evidence
bearing
on the
whether
person
was under the influence
Newill,
88-89, 946
of alcohol...”
285 Mont. at
P.2d at
We
136-137.
also
determined that
requirements
the foundational
of 61-8-404(1)(b),
(1995),
MCA
were inapplicable to blood
taken
tests
for medical
treatment applied only
since those
requirements
tests
administered
Newill,
MCA
Then,
at
946 P.2d at
only question
left
us to determine
in Newill was whether the blood
taken
hospital
test
at the
request by
Newill’s treating physician was
as “other
admissible
competent evidence” under
Accordingly,
MCA
examined the skills of the medical personnel
involved and concluded
that the
was admissible as other competent
bearing
evidence
Newill,
on whether
under
Newill was
the influence
alcohol.
Mont. at
addition, MCA was amended in deleting “administered provision 61-8-404(1)(b), under 61-8-402”. Section report MCA states “a facts results of or more one person’s breath is if ....” evidence 61-8-404(1)(b)(ii), Consequently, the foundational § as necessitated *5 (1999), 61-8-404(1)(b)(ii), MCA are competency requirement of § to case at the hand. Although amended, statute the resolution of this the true, in Newill. it is as the District is controlled our decision While to correctly recognized, that Newill did the her BAC sample determining officer to have a blood taken for 61-8-402, not, admissibility under MCA did criteria for § (1999), administered under the relating to blood tests by hospital to taken inapplicable diagnostic statute are blood tests Therefore, treating physician. legally we see no relevant distinction here the facts confronted in presented between facts we suppression Court’s order of Newill. We thus conclude that conflicts with decision in Newill. Here, requirements, arising competency there additional (1995), 61-8-404, the 1997 amendment to MCA that were not at
from § 61-8-404(1)(b)(ii), requirements in issue Newill. The foundational § (1999), (1999), to applied MCA must be MCA and § hand of the evidence. We note competency case at to ascertain need a blood for medical treatment not administration of request peace as 61-8- required § conducted at the be 405(1), requirement only applicable is to MCA since such 61-8-402, pursuant whereby MCA § conducted 61-8-402(2)(a), (1999), requires MCA that blood tests administered administered at the direction of a pursuant that section “must be Further, under charged driving a defendant with peace officer”. procedural safeguards is entitled to contained influence alcohol Incashola, Rules 1998 MT the Administrative of Montana. See State (citation omitted). 184, ¶8, ¶8, Montana, specifically Rules Rule Accordingly, the Administrative 23.4.220, ARM, drug the collection of blood regarding applied to the case at hand to and/or alcohol must be However, competent if evidence. the blood test is determine ARM, 23.4.220(1), collected Rule that blood be requirement of officer or officer the court” “upon request written treatment purposes, test conducted for medical tests conducted requirement applies (1999). MCA Hence, remaining is whether medical blood test the question evidence for “competent” treatment
taken The MCA under the evidence was no whether District Court made determination 61-8-404(1)(b)(ii), MCA and the Administrative Rules of determination Consequently, Montana. are unable to reach a we Thus, presented remand Therefore, this case for such determination the District Court. IT HEREBY the petition IS ORDERED that for writ of this control GRANTED and that case is remanded for proceedings further with Opinion. consistent of Court a copy Clerk is directed to mail of this Order to all counsel Jeffrey of record and the Honorable H. Langton. day December,
DATED this 28th GRAY, CHIEF REGNIER, NELSON, JUSTICE JUSTICES COTTER, LEAPHART and RICE concur. concurring dissenting
JUSTICE TRIEWEILER *6 part. I with part majority opinion concur that of the which concludes 61-8-404(l)(b)(ii),
that the foundational found §at and applicable are to evidence of regardless alcohol content of whether the source is blood drawn 61-8-402, MCA, to or for purposes medical treatment. I would compliance add that regulations with necessary. is also I part majority opinion dissent from that the which concludes
that blood test results obtained medical providers admissible to prove of a operation motor vehicle while under the influence alcohol or drugs though even the motorist from the whom drawn refused to to submit similar tests when requested do so consequences suffered of that refusal. I affirm would the District our prior reverse decision in v. Newill 61-8-402, I MCA, that requires conclude consent driver suspected of operating motor vehicle under influence alcohol before tests he prove presence can administered to of alcohol or drugs body. in a person’s consequences denying that refusal hold, majority done, are set forth in MCA. To as the has that can requirement by going consent be circumvented to the hospital test results -without subpoenaing records drawn procedural requirements driver’s consent renders the in MCA, it provides give and the sanctions that for failure to subparagraph meaningless. provision I would also conclude that the (10) which that section drawn for provides refers assumption of medical treatment to the (1) for in and the sanctions for withdrawal of
provided subparagraph interpret subparagraph To subparagraph that assumed consent (10) does inconsistent. majority internally renders statute MCA, Finally, provides any I comfort disagree that § 61-8-404, MCA, simply been majority’s position. to the Section has evidence to in enacted to the blood breath consented 61-8-402, MCA, judicial proceeding prescribed in a if the necessary are followed and the foundation for (a) any laid. refers to evidence of the measured Subparagraph (b) refers drugs present subparagraph amount of alcohol or MCA, other report of blood or breath test results. All of § subparagraph presence than refers to blood or alcohol (3) Therefore, subparagraph refers person’s body. of alcohol evidence,” necessarily it “any other refers to evidence reason, For it cannot serve the other than breath or blood tests. majority. it is used purpose which Therefore, majority opinion I dissent from that which MCA, -404, permit 61-8-402 and admission §§ construes test results taken for of medical treatment from motorist has to submit would measure the testing who declined which body already in that and has suffered the presence person’s alcohol consequences for that refusal.