*1 190 Appellant, R. v. H. MONTANA, Plaintiff and
STATE OF
Respondent.
MANGELS, Defendant
No. 12863.
21, 1975.
Jan.
Submitted
14, 1975.
Decided Feb.
Robert D. Morrison n Havre, respondent. for defendant and Opinion of the
MR. WELL delivered the JUSTICE HAS Court. justice Mangels court of was convicted the
Herbert R. driving influence of intox- County for while under the Blaine appealed icating liquor. from that conviction to the dis- He there, suppress Prior to trial he filed a motion to trict court. level, evidence of his blood alcohol derived from a blood sample shortly alleged taken after the The motion offense. granted, appeals was from that and the State here order. suppress solely district court motion considered the to supporting of the basis facts and pf by parties. argu- memoranda No or oral further evidence ment was received. August 26, evening 1973, of defendant was involved
On the Highway 2, Lohman, in a collision on No. near two-vehicle U.S. injured Only and, Montana. while he was hospital, awaiting transportation nearby odor to a high- investigating alcohol was breath detected on his patrolman. way approxi- hospital by
Defendant ambulance arrived at the mately forty-five occurred. minutes after the accident appeared duty nurse on “that noted défendant suffering from and contusions”. confused abrasions prepared nurse highway patrolman, At the blood sample determining to take a blood for defendant’s going that she alcohol level. told defendant The nurse purpose doing blood, not tell him her to draw his but did objected expressly consented so. Defendant nor neither Analysis taking sample. later re- vealed a .19 alcohol level. blood any patrolman defendant highway did talk to at prior sample. At no had taking of the time time blood been that he was under arrest that he defendant told *3 charged driving with while under the influence of intoxi- was cating liquor. patrolman's opinion, In he did not arrest the give him citation on morn- although he did a the defendant, following the and the test. Several weeks ing accident blood complaint justice a later, filed in court and warrant a was was issued. for defendant’s arrest held, granting suppress, in motion to district court the The not been arrested and since had that since defendant had he test, taking to the the given his actual consent the of not 32-2142.1, in of section R.C.M.1947. This violation only. presents appeal that issue controlling statute, as in The cited the district court’s 32-2142.1, provides: It order, R.C.M.1947. is section person operates Any upon who a motor vehicle the “(a) to highways given, of this state shall be deemed public subject provisions 32-2142, consent, of section R.C.M. blood, breath, of or urine chemical test his for 1947, to a determining the alcoholic content of purpose of his blood physical driving in actual or peace for officer arrested a if intoxi- of the influence while under motor control of a vehicle * * * may designate arresting officer cating liquor. shall administered. tests which of the aforesaid in who is otherwise person unconscious “(b) Any who is refusal, be deemed incapable shall rendering him of a condition by paragraph provided the consent not to have withdrawn (a) of this section. a upon of
“(c) person If arrest refuses a under by the designated test peace to a chemical officer to submit section, (a) of this provided paragraph in arresting officer as * # The ab- [Emphasis given. added.] none shall be that asserts disputed, but the State of an arrest is not sence (b). Defendant required paragraph an under is in a nor “otherwise argues that neither unconscious he was incapable refusal” and therefore rendering him condition clearly requires Paragraph (a) paragraph (a) controls. operative. implied provision consent becomes arrest before the requirement clear, both on the face of statute 131, 1971. original Ch. Laws of 1, title of the act. Sec. requirement equally apparent is no similar It is there paragraph (b). applicability before establish
Unless facts us paragraph (b), must affirm the district court’s order we preceding suppressing for lack of a arrest. the blood test question consciousness, Since there is no as defendant’s paragraph (b) only apply if defendant “in a can rendering incapable him refusal”. condition bring case facts are insufficient this They provisions paragraph (b). within do not estab rendering incap in a condition him lish that defendant was *4 hospital in able of refusal. The nurse did not indicate that intoxicated. record attempts argument by to meet that asserting
The State physical condition that the defendant’s was so that unstable 194 injurious. been
any Questions by patrolman would argu- support that not. agreed does The statement of facts ment. em adoption of the rationale
Finally, urges our the State (Fla.1971), ployed by in v. Mitchell the Florida court State there presented statutes So.2d 618. the facts and While per case, not we are parallel are instant somewhat arresting argues that Although suaded. the State here making his determination officer must have discretion employed by the Florida capacity,-the rationale result potential for The vesting much discretion. court is a of too officer, under the broad dis arresting abuse is manifest. which to only fact on granted, find some cretion there need not need incapacity, and then he base a conclusion of ordering its test, administration. or before' likely suggest that such abuse is We do not mean to outweighs any Montana, potential for incon but the abuse from a narrower construction. might which result venience R.C.M.1947, 32-2142.1, limits the officer’s discretion Section refusing subject incapable of where to those cases Here, only require incapacity determined we that the test. reasonably available of the best evidence which is on the basis of facts does so to the officer. indicate here. suppress-
Accordingly, affirm the district court’s order we ing of the blood the results test. MR. T. HARRISON and
MR. CHIEF JUSTICE JAMES DALY concur. and JOHN C. HARRISON JUSTICES CASTLES, (dissenting): MR. JUSTICE I I hold that evidence of the blood dissent. would against admissible him. from defendant is taken majority proposition opinion of the stands for the patrolman police highway officer the scene does *5 whether have the discretion to make the determination rendering incapable suspect “in him is a condition agreed facts that, refusal” but statement of case, in this support finding was insufficient a that this defendant was rendering incapable “in a him I would condition of refusal”. support hold that the of facts does such a finding. emergency in the room of the hospital. supine position He was a at all times. The nurse duty “appeared on noted that defendant to be confused and suffering actually To abrasions contusions.” placed quite possibly defendant under at this time physical could have worsened his and emotional condition. policy interpretation Public demands liberal laws con- cerning driving public highways while under the influence responsible great per- alcohol. The drunk driver is for a centage of traffic highways. deaths on the nation’s “implied law consent” a enacted as deterrent force keep drunk off give drivers the road. In order to effect law, law enforcement officers must be able to use enforcing discretion in it. This discretion, unbridled majority opinion suggest, as the would but is discretion re- viewable at all times the courts