*1
MONTANA,
OF
STATE
Respondent,
Plaintiff
McGOWAN,
DENNIS JAMES
Appellant.
Defendant
05-254.
No.
22, 2006.
on Briefs March
Submitted
July
Decided
MT 163.
Mont. 490.
JUSTICE MORRIS Opinion delivered the of the Court. (McGowan) Dennis ¶1 McGowan appeals his conviction from the District, First Judicial Lewis County, and Clark for operating a motor vehicle with an alcohol concentration in excess of in .08 violation of § 61-8-406, MCA. We affirm. McGowan’sappeal presents
¶2 the following issue: Whether the State presented sufficient evidence to support the jury’s conviction of McGowan for driving offense of a noncommercial vehicle with an alcohol concentration in excess of .08.
FACTUAL AND PROCEDURAL BACKGROUND (Officer Herbst) Helena Police Officer Gary Herbst pulled McGowan over at approximately p.m. 11:50 on October for traveling 40 miles hour in a 30 mile per hour zone. Officer Herbst detected an odor of alcohol coming from inside the vehicle while speaking with McGowan. He further noticed that McGowan moved slowly and deliberately and that speech he slurred his slightly. Officer suspected Herbst driving McGowan of under the influence of alcohol and accordingly initiated a DUI investigation. Officer Herbst asked McGowan whether he had consumed night.
alcohol that McGowan admitted that he had consumed approximately five beers. Officer then Herbst administered two physical field tests. McGowan failed both the walk and turn test and one-legged stand test. agreed McGowan to take a portable brеath test. portable The breath presence test indicated the of alcohol in system. McGowan’s Officer Herbst arrested McGowan for under the influence of alcohol based on results ofthe field tests and portable breath test. Officer transported Herbst McGowan to the detention center and to a implied
read him the consent law. McGowan consented breath test Intoxilyzer on Herbst McGowan 5000. Officer observed for mandatory period 15 minute and administered the test at deprivation a.m., 12:40 after he approximately roughly stopped minutes first The Intoxilyzer McGowan. 5000 indicated that McGowan’s breath .092. Officer read McGowan his Herbst he felt he under rights Miranda McGowan then stated that influence of alcohol. charged The State McGowan with while under 61-8-401, (DUI), MCA, driving influence of alcohol in violation of § (DUI Se), with an alcohol concentration of .08 more Per violation MCA, 61-8-303, The speeding, violation of § City Court McGowan of and DUI Per Se speeding Helena convicted a trial following appealed bench on November 2004. McGowan jury held a trial on trial dе novo district court. District Court acquittal for a at the judgment March 2005. McGowan moved case, proven beyond had not arguing close of the State’s .08 doubt that his alcohol concentration was or more The District Court denied the motion. The time he was jury guilty appeal McGowan of DUI Per Se. This followed. found
STANDARD OF REVIEW *3 question sufficiency a of the evidence to We review on ¶8 whether, prosecution, any in to the light determine a most favorable trier of fact could have found the essential elements of rational Field, MT beyond a doubt. State v. 2005 crime reasonable 813, 15. Mont.
DISCUSSION Per requires the DUI statute the State McGowan contends that Se his .08 while he was prove that alcohol concentration was above Intoxilyzer of the 5000 test taken He asserts that the results driving. prove minutes his initially pulled after he was over cannot what driving. time The State alcohol concentration was at the he was jury that presented it evidence for a find counters that sufficient at the his was in excess of .08 time of alcohol concentration McGowan’s stop. “it provides that DUI Per Sе Section Montana’s any or actual control
is for to drive be in person unlawful... open this state to the upon ways of... a noncommercial vehicle concentration, by analysis person’s as shown public while the breath, urine, person’s blood, or more ....” Montana’s of the 0.08 or a of alcohol in provides, part, DUI statute in concentration system of a may by analysis sample be determined of the person’s alleged breath taken a reasonable time after the act person’s “within 61-8-401(4), therefore explicitly ....” Section MCA. DUI statute determine a person’s law enforcement allows act, a time after the while alleged concentration reasonable the DUI person’s Per to a only Se refers alcohol concentration while they driving. are argues McGowan that the DUI Per Se statute’s omission of “taken
n within a after alleged required reasonable time act” law enforcement to determine his alcohol concentration at the time he was actually driving, rather than minutes afterward. He notes that person’s alcohоl concentration continues to an period rise for unknown alcohol, they of time after stopped consuming plateaus have then begins decline. He maintains that his blood alcohol level could have rising at him pulled been the time Officer Herbst over. Accordingly, he that argues his alcohol concentration time he took the Intoxilyzer higher 5000 test could have been than was 50 minutes when he earlier The State that we counters must read the DUI together statutes and conclude that the Per Se DUI statute allows evidencе alcohol concentration tests taken a reasonable alleged amount of time after act of with an alcohol excess of .08. 61-8-404, MCA, may Section outlines the State against charged admit a person with DUI Per Se. That section provides, part, “evidence of measured amount or detected presence of person test, alcohol... in the at the of a as shown analysis an person’s breath, or is admissible.” Section 61-8- 404(1)(a), MCA. Montana’s implied provides consent law that a who
operates or is in actual physical ways control of a vehicle open public effectively the state to the to a test of consents their blood for the purpose determining any breath measured amount or presence 61-8-402(1), body. detected of alcohol their An officer must administer test or tests when the officer has grounds to believe has been under *4 influence the has a placed person alcohol and under arrest for 61-8-401, 61-8-402(2)(a)(i), violation MCA. Section MCA. A § screening preliminary test administered in the field used to person’s satisfy not person’s estimate alcohol concentration does a 61-8-402, obligation to to a test under MCA. Section 61-8- submit § 409(2), MCA. Therefore, suspicion officer a that a particularized if an has has been a motor vehicle while under the influence
person operating alcohol, screening may preliminary the officer administer a test to 61-8-402, system. estimate the amount of alcohol their MCA. DUI, for place person If the officer then to under arrest determines officer must another or breath test to determine administer system to present рerson’s pursuant the amount of alcohol 61- § 8-402(2)(a)(i), 61-8-402, MCA, by The test is not a required MCA. § administer Rather, the officer this second test at a field test. must approved of such tests the Montana location administration 23.4.215, Lab, Crime as a detention center. Rule ARM. such Administrative further law enforcement officers to require rules minute person deprivation period a for a fifteen before observe 23.4.212(7), administering Intoxilyzer ARM; on the 5000. Rule a test 122, Flaherty, 9, 168, 9, 112 1033, Mont. P.3d State v. 2005 MT ¶ ¶ 9.¶ construe, the law avoid interpret apply We so as to absurd Co., 62, 33, 338, 33, ¶ Prindel v. Ravalli 2006 MT 331 Mont. ¶
results. 165, pass presume 133 P.3d 33. We would ¶ relating harmonize to meaningless legislation and we seek to statutes Fregein subject give to to the same so as effect each. Wild Construction, 425, 20, MT 315 Mont. ¶ ¶ Moreover, statutory not lead to absurd results 20. construction should Wild, would avoid it. 20. interpretation if a reasonable statutory scheme for DUI offenses allows for admission 61-8-404, Se Intoxilyzer 5000 results DUI Per cases. Section Indeed, person if a law enforcement officer believes that has place the influence of alcohol and determines been under MCA, the officer pursuant under arrest for DUI person § test, Intoxilyzer as the at a administer a such must breath 61-8-402(2)(a)(i), approved facility. Section detention center or other Further, MCA; 23.4.215, ARM. an officer MCA; 61-8-409(2), Rule § deprivation minute period for a before person must observe the fifteen Flaherty, administering the test. 61-8-406, MCA, law require enforcement officers Reading lead while would person’s determine a alcohol concentration result, impossible for an officer to an would be absurd procedure driving. Proper suspect
administer test while over, оbserve the pull an officer to requires
495 a investigation, place person initiate a DUI determine to under arrest investigation, transport person to a detention center based on approved testing facility, person or other observe for the mandatory period, fifteen and then administer the deprivation minute Breath breath test. tests administered within a reasonable amount therefore Se alleged time after act are consistent with the DUI Per Per to Interpreting statute. the DUI Se statute allow for the admissibility of а breath tests administered within reasonable amount alleged driving of time after the act of under the while influence interpretation a represents statutory language, of the comports legislature’s intent, with the an and avoids absurd result. Wild, 20. argues The Dissent that the State be required prove should to person’s
evidence of a
they
alcohol concentration at the
that
were
driving through retrograde extrapolation
Dissent,
evidence.
31.
Retrograde extrapolation represents
technique
through which
experts estimatе alcohol concentration at
earlier
on
some
time based
(Tex.
2004),
the test results at some later time. Douthitt v. Texas
App.
327. The
points
S.W.3d
Dissent
further
to cases from other
jurisdictions
posit
that
that tests taken after person
driving
a
has been
accurately
person’s
do not
reflect the
alcohol concentration while the
driving. Dissent,
was
jurisdiction
cites,
At least one
to which
however,
the Dissent
has
changed
rejects
course and now
notion that
state needs to
present retrograde extrapolation evidence
support
to
convictions under
(Pa.
per
type
1994),
DUI
se
In Com. v. Yarger
statutes.
648 A.2d
531-32,
Supreme
Pennsylvania
Jarman,
Court of
differentiated
Dissent,
case
upon Yarger’s higher
cited
based
stop
concentration
the shorter duration of time
his
between
initial
and the administration
breath
Yarger,
test.
JUSTICE dissents. NELSON The Court violates one of the most elemental and blackletter
jurisprudential laws of this State in its Opinion. statute,
In the judge simply construction of a the officeof the ascertain and declare what is in in terms or substance contained therein, not to insert what has been omitted or to omit what has been inserted. 1-2-101, MCA; City Billings Gonzales, 24, 13,
Sеction 2006 MT 331 Mont. 61-8-406, MCA, “per statute, the DUI provides: se” (1) 61-8-442,61-8- It is and punishable provided unlawful as in 722, 61-8-723, and through any 61-8-731 61-8-734 for person to drive physical or be in actual control of:
(a) a ways noncommercial vehicle upon open of this state to the public person's concentration, while the as by analysis person's blood, breath, urine, shown or is 0.08 or [Emphasis more .... added.]
The plain unambiguous language Legislature utilized this statute requires the measurement of alcohol concentration to relate to the time To contrary, however, under the influence or DUI 61-8-401, MCA, provides, in pertinent part:
(1) It is punishable, 61-8-442, unlawful and provided 61- 8-714, through 61-8-731 for a who is under the influence of:
(a) alcohol to drive be actuad control aof vehicle ways of this state open public; to the (4) the trial criminal Upon civil or proceeding action or *7 arising out of acts alleged by any to have been committed person driving or in actual control of a vehicle while under the alcohol, influence of the concentration of person test, the time of a by analysis as shown of a sample person's of the blood or breath drawn or taken within a reasonable alleged act, after the gives following rise to the inferences: (a) If there was at that time an alcohol concentration of 0.04 or less, may it be inferred that the person was not under the influence of alcohol.
(b) If there was at that time an alcohol concentration in excess 0.08, of 0.04 may give any but less that that fact not rise to inference that the person was or was under the influence of 498
alcohol, may competent cоnsidered with other but the fact be person. or innocence of the determining guilt evidence in (c) 0.08 or time an alcohol concentration of If there was at that the influence more, was under may be inferred added.] [Emphasis The inference is rebuttable. of alcohol. statute, 61-8-406, MCA, clearly statute and the DUI theper Unlike se § of evidence of alcohol allows admission unambiguously alleged time after the taken “within a reasonable concentration to be act.” case than follow the law nothing do more this We need statutory rules of construction by Legislature and the
articulated Indeed, 2, it is 1, Code Annotated. Chapter in Title Montana set out In re Estate the law as it is written.” “duty Court’s ... to construe this 90, 1-2- (1979), 372, 378, (citing P.2d 94 182 Mont. 597 of Magelssen MCA). statute, the intention Moreover, the construction of a 101, “[i]n 1-2-102, MCA. possible.” if pursued is be intent, that... we beyond dispute “it is ascertaining Legislature’s In in a statute language used unambiguous plain [the] are bound means of history other legislative may not consider 264, 22, Vielleux, MT 302 2000 McKirdy v. statutory construction.” 207, (citing MacMillan v. State 18, 22, 19 P.3d Mont. 78). 208, 75, (1997), P.2d Mont. Ins. Fund Compensation be of the law will not in а the letter ambiguity “If no exists Magelssen, spirit.” of its pretext pursuing under the disregarded State Board Vaughn Ragsdale & 378, 597 (citing P.2d at 94 Mont. at 424). (1939), 109 Mont. Equalization primarily case is devoted decision in the instant The Court’s Legislature language which adding theper se statute justifying of alcohol concentration the measurement chose not to use-that can determined not while se statute be purposes rather, but clearly requires, driving, as that stop. time after the of the rules Court, justification of its violation again in language to the statute construction, to nоt add posits that statutory Legislature implies results” and produce “absurd would fact, it is point In is true. legislation.” Neither passed “meaningless evidence retrograde extrapolation, provide, by for the State possible the time of concentration at person’s of a Unfortunately, offer such evidence. case, the State did not In this from its own necessary to save the State feel it Court seems to this charge supporting at trial present failure to sufficient *8 against made McGowan. Here, the critical element ofthe State’s case was McGowan’s
alcohol concentration at the time he
driving.
only
The
presented was that his blood
fifty
alcohol concentration
minutes after
driving
he was
was 0.092%. The State presented no evidence relating
McGowan’sblood alcohol concentration back to the time he was driving
his vehicle. Accordingly, it
is not known whether his alcohol
higher, lower,
or the same as at the time he was
driving his
information,
vehicle. Without
plain
under the
language
per
se
there was not sufficient evidence to
support the vеrdict.
per
McGowan’s
se conviction should be reversed.
In
appeal,
his brief on
McGowan
persuasive authority
cites
from
jurisdictions
sister
support
that,
argument
his
under a
se type
requiring
the determination of alcohol concentration at the
driving,
tests after that time
accurately
do not
reflect the
content of
See,
blood alcohol concentration at the
time of
e.g.,
(Pa.
Commonwealth v.
1992),
Jarman
1229;
Conrad v. State
(Alaska
2002),
(Tex.
App.
313;
Ct.
Douthitt v. State
Ct. App.
2004),
It appears that Legislature Alaska would have the аuthority to define the offense in terms of the defendant's test result at a test administered specified within a time after the defendant operated or controlled a motor though vehicle-even test might result higher be than the defendant's blood alcohol level at the time the defendant operated or controlled the vehicle. Our review of case law and statutes from other reveals that a number of legislatures state have done this. states, however,
In these clearly specify statutes that a guilt defendant's rests on the tеst results and that the defendant's actual breath or blood alcohol content at the time driving is not an element. (footnote omitted).
Conrad, 54 P.3d Douthitt, Similarly, in court observed: [A] drinker's alcohol concentration describes curve that rises as absorbed, the alcohol is peaks point at some after drinking stops, and then declines as the alcohol is eliminated. If a driver is tested for alcohol concentration while he is still in the absorption phase, his alcohol higher concentration will be than it was when he stopped driving. If he tested, the elimination phase when his alcohol concentration could while higher be either or lower than
driving,
on when he reached his
concentration.
depending
peak
test,
and the
greater
greater
the time between
potential variation between the
concentration when
subsequent
test result.
(internal
omitted).
Douthitt,
state was driving. The noted that the defendant’s blood alcohol level while court 0.18%, Yarger significantly in was blood alcohol level of the defendant threshold, of lapse the and that the time between when above 0.10% test was only the defendant and when he submitted to the that two forty minutes. The court determined these factors previous extrapolation cases distinguished this case from where Yarger, at 531. evidence was required. on addition, In in noted that the statutе relied in Yarger the court time of and the case had amended the the offense
that
been
between
n.2. Unlike Montana’s DUI
Yarger,
court’s decision.
it is true the did revision, that the court did not state legislative is also true on the the court totally the revision. Because disregarded legislative that it decision, mentioning the revision in it is point legislative made of its impossible legislative to tell how much influence the revision had on court’s decision. Doutthit, Furthermore, response to this dissent’s citation to majority yet no court has explicitly concedes that in Texas to hold retrograde state required present extrapolation analysis is not Nevertheless, testimony. states that majority several Texas courts have admitted the results of alcohol concentration tests in the absence such testimony. majority One such case is Stewart cited (Tex. 2004), Stewart, Crim. 93. In App. S.W.3d Texas did Appeals ruling Court Criminal reverse lower court that breath retrograde extrapolation test results are inadmissible without However, majority holding, evidence. to mention that fails in so court Stewart noted that it reversed the lower court on basis of relevancy, sufficiency necessary not on the of the evidence to sustain Stewart, concurring a conviction. 129 S.W.3d As the opinion at 98. states, Stewart peculiar posture
because of the this appeal, [Stewart] does not problem resolve the trial courts: faces whether admit extrapolation breath-test results without appeal evidence. This [Tjhere presents only problem, relevancy.... half are serious *10 half, issues other weighing relevancy against about the the value possibly unfair prejudicial effect.
Stewart, J., at (Womack, 129 S.W.3d concurring). majority jurisdictions While the cites a from few cases various the of
supporting proposition retrograde extrapolation that the use necessary, evidence is not require there are that still the retrograde introduction of evidence. v. extrapolation Ladwig In State (S.D. 1989), 594, court N.W.2d the trial denied the defendant’s charges against ground motion to dismiss the on the him State to failed introduce sufficient to establish he had been that driving with a alcohol appeal, blood content of 0.10% or more. On the Suрreme Court of South Dakota the trial court because the reversed State [the defendant’s]
failed to that blood content was establish greater 0.10 he his percent at the time vehicle. Rather, merely produced [the defendant’s] evidence of at the without content time his blood was drawn extrapolate test to the time attempt to or relate the results back he was driving.
Ladwig, original). at 595-96 (emphasis N.W.2d (Vt. 886-87, 1982), Likewise, the in State v. Rollins
Supreme Court of Vermont stated: proof, prosecution its of the must do more than fulfill burden
[T]o requisite test. The State must also establish offer the chemical case, this operation. existed the time of In that the .10% level at relate the the to back .24% prosecution was incumbent (time test) (last p.m. 7:45 time of p.m. from of the reading 9:14 Thus, p.m. the 9:14 operation). any evidence relevant to whether alcohol level at reading accurately reflected the defendant’s blood admissible, indispensable to the only but p.m. 7:45 prosecution’s case. into Montana’s DUI se statute Finally, reading rather than there, of approach wоuld be that the that are not a better
provisions retrograde require Court who continued Supreme Arizona the amended its motor extrapolation evidence until Arizona admissibility for the of BAC tests taken vehicle statutes allow of the the hours of Prior to amendment within two intoxilyzer held of an test Supreme Court that results Arizona arrest admissible show taken time after were blood, percentage. Desmond presence of alcohol in the but not (Ariz. 1989), County 779 P.2d Superior Maricopa Court statutory under that driver was apply presumption 1266-67. Tо intoxicating if of alcohol liquor percentage the influence 0.10%, court in his blood or breath exceeded testimony relating the BAC back must be determined there Desmond, the arrest. all the reasons yeoman’s job explaining majority does not, hard, or will is too too inconvenient why retrograde extrapolation true, Interpret is otherwise, simple. If then the solution work. government that it is and let the branch the statute as written language. It is this offending fix the legislation rewrite and wrote the courts as to those who criticize gives traction kind of activism majority have precisely what acting super-legislatures. It is done here. law, I dissent. unwillingness to follow the By reason of our dissent of JUSTICE joins foregoing in the COTTER
JUSTICE *11 NELSON.