State v. D. HesserState v. D. Hesser
¶1 Donald Aaron Hesser, Jr. (Hesser) pled guilty in the Eighth Judicial District Court, Cascade County, to felony driving under the influence (DUI). As part of his plea agreement, Hesser reserved his right to appeal the denial of his motion to suppress. The execution of his sentence was stayed pending the outcome of this appeal.
¶2 We restate the issues on appeal as follows:
1. Was there probable cause to issue an investigative subpoena to obtain Hesser‘s blood sample?
2. Was law enforcement authorized under
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On May 4, 2021, Montana State Trooper Daniel Arnold (Arnold) was dispatched to a scene involving a motorcycle accident in Cascade County. The driver of the motorcycle—later identified as Hesser––was found by first responders laying in a ditch in critical condition and was taken by helicopter to Benefis Health Systems for treatment. The weather was sunny, and the road was paved, dry, and in good condition. Investigation at the scene indicated Hesser was approaching a gradual lefthand curve when he drifted to the right and went off the road. There was no evidence indicating that Hesser had attempted to brake or correct his steering. Thus, law enforcement could not determine why Hesser had an accident.
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¶5 In his motion to suppress, Hesser argued that Trooper Arnold lacked authority to apply for an investigative subpoena because, pursuant to
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¶7 Hesser appeals.3
STANDARD OF REVIEW
¶8 This Court “review[s] a district court‘s denial of a motion to suppress evidence for whether the court‘s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law.” State v. Vegas, 2020 MT 121, ¶ 8, 400 Mont. 75, 463 P.3d 455 (citing State v. Ruggirello, 2008 MT 8, ¶ 15, 341 Mont. 88, 176 P.3d 252). “A court‘s findings of fact are clearly erroneous if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed.” Vegas, ¶ 8 (quoting Ruggirello, ¶ 15).
DISCUSSION
¶9 1. Was there probable cause to issue an investigative subpoena to obtain Hesser‘s blood sample?
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In the case of constitutionally protected material, such as but not limited to medical records or information, a subpoena may be issued only when it appears upon the affidavit of the prosecutor that a compelling state interest requires it to be issued. In order to establish a compelling state interest for the issuance of such a subpoena, the prosecutor shall state facts and circumstances sufficient to support probable cause to believe that:
(a) an offense has been committed; and
(b) the information relative to the commission of that offense is in the possession of the person or institution to whom the subpoena is directed.
“Probable cause exists ‘where the facts and circumstances within an officer‘s personal knowledge prove sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense.‘” State v. Kelm, 2013 MT 115, ¶ 25, 370 Mont. 61, 300 P.3d 687 (quoting State v. Ellington, 2006 MT 219, ¶ 16, 333 Mont. 411, 143 P.3d 119). In State v. Nelson, we explained that “[w]hen an investigative subpoena seeks discovery of protected medical records or information, the subpoena can be likened to a search warrant which must satisfy the strictures of the Fourth Amendment and Article II, Section 11 of the Montana Constitution. A search warrant can only issue upon a showing
¶12 In the affidavit filed in support of the investigative subpoena, Deputy Attorney Payne set forth several factors supporting the issuance of the subpoena:
On May 4, 2021, Donald Hesser was eastbound on Armington Road on a motorcycle. There was no inclement weather, the roads were dry, and the weather was sunny. Hesser was driving [] around a left-hand curve and drifted off the right road edge, where his motorcycle bottomed out and became airborne. Hesser never corrected. . . . Hesser does have three prior DUI convictions and is believed to have been intoxicated when this wreck occurred.
The affidavit thus noted several factors that supported probable cause to believe Hesser had committed the offense of DUI. First, at the time of the accident, it was daylight, sunny, the roads were dry, and there was no inclement weather. Second, the affidavit noted there was no evidence of any corrective action taken by Hesser. Finally, the affidavit noted that Hesser had prior DUI convictions. Thus, the affidavit established that Hesser was in a single-vehicle accident and nearly died; the accident was unexplainable because Hesser had drifted off the road for no reason; Hesser took no corrective action at all; and Hesser had a history of driving under the influence.
¶13 Hesser claims that if we were to find this was enough to justify probable cause “any person with a prior DUI conviction who was in a crash and transported to the hospital
¶14 In its order denying Hesser‘s motion, the District Court noted that Hesser was found “unconscious at the scene of a serious wreck[,] [t]he road and weather conditions did not show any reason why the wreck should have occurred[,]” and Hesser had prior DUI
¶15 Hesser cites State v. Hala, 2015 MT 300, 381 Mont. 278, 358 P.3d 917, Nelson, 283 Mont. 231, 941 P.2d 441, and State v. Decker, 251 Mont. 339, 828 P.2d 1342 (1991), to support his argument that there must be clearer indications that alcohol was involved before probable cause can be found to exist. In Hala, however, the issue on appeal was whether a blood test drawn eight hours after the accident was obtained within a reasonable time under the circumstances. Hala, ¶ 2. We did not address the sufficiency of probable cause. Similarly, in Decker, we did not address the sufficiency of probable cause because the sole issue on appeal was whether the district court erred when it allowed testimony of a forensic scientist regarding Decker‘s blood alcohol content.
¶16 In Nelson, Nelson appealed an order denying his motion to suppress the results of his blood alcohol test obtained by means of an investigative subpoena. 283 Mont. at 233, 941 P.2d at 443. Nelson was involved in an accident after he drifted off the road while traveling on Interstate 94 and struck a guardrail. Nelson, 283 Mont. at 233-34, 941 P.2d at 443. Nelson was later driven by a friend to an emergency room where he was treated for a broken jaw. Nelson, 283 Mont. at 234, 941 P.2d at 443. Concerned over his apparent lack of pain, the treating physician ordered a blood alcohol test. Nelson, 283 Mont. at 234, 941 P.2d at 443. Nelson reported the accident to the Montana Highway Patrol the following morning and during the subsequent investigation revealed that he had “consumed
Even if we disregard [the treating physician‘s] thinly veiled comment to Sgt. Mahlum as to the reason for Nelson‘s lack of pain, the balance of the information known to law enforcement was sufficient to establish probable cause. That is, that Nelson had consumed a couple of drinks before the accident; that the road was bare and dry; that he ran into a guardrail; that he suffered a broken jaw; and that he had received medical treatment at the Glendive Medical Center.
Nelson, 283 Mont. at 244, 941 P.2d at 449-50. While in Nelson law enforcement obtained an admission of alcohol use prior to the accident, Trooper Arnold could not obtain any admissions because of Hesser‘s serious medical condition that rendered him unconscious. Moreover, here, while there was no direct evidence of alcohol consumption by way of an offender‘s admissions, there was evidence of numerous DUI convictions. Thus, under the totality of the circumstances, which is our guidepost, there was more than adequate evidence to support probable cause to believe Hesser had committed the offense of DUI.
¶17 We conclude the District Court was correct when it found there was sufficient probable cause that Hesser had committed the offense of DUI.
¶18 2. Was law enforcement authorized under
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(1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person‘s blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person‘s body.
Additionally, “[t]he test or tests must be administered at the direction of a peace officer when: (iii) the officer has probable cause to believe that the person was driving or in actual physical control of a vehicle . . . involved in a motor vehicle accident or collision resulting in serious bodily injury. . . .” Section 61-8-402(2)(a)(iii), MCA (2019). Hesser was unconscious at the hospital and thus statutorily determined not to have withdrawn his consent to provide a blood sample pursuant to § 61-8-402(3), MCA (2019), which provides, “[a] person who is unconscious or who is otherwise in a condition rendering the person incapable of refusal is considered not to have withdrawn the consent provided by subsection (1).”
¶20 Here, Hesser was operating a motor vehicle upon a road of the state. He therefore impliedly consented to the administration of a blood test. Because Hesser was unconscious, intubated, and had not regained consciousness prior to Trooper Arnold‘s arrival, he was considered statutorily not to have withdrawn his consent. We conclude Trooper Arnold could have lawfully directed medical staff to obtain a blood sample
CONCLUSION
¶21 We conclude that the District Court did not err when it denied Hesser‘s motion to suppress and found there was sufficient probable cause for issuance of the investigative subpoena. Additionally, Trooper Arnold was authorized to request a blood draw pursuant to § 61-8-402(2)(a), MCA (2019), and Hesser, because he was unconscious, was considered statutorily not to have withdrawn his consent pursuant to § 61-8-402(3), MCA (2019).
¶22 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ JIM RICE
/S/ JAMES JEREMIAH SHEA