State v. SheppState v. Shepp
- Reporters:
- , , ,
- Before:
- Shea, McGrath, Cotter, McKinnon, Wheat
For Appellant: Dwight J. Schulte, Schulte Law Firm, P.C., Missoula.
For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Anne Sherwood, Legal Intern, Helena; Bill Fulbright, Ravalli
JUSTICE SHEA delivered the Opinion of the Court.
¶1 Carl R. Shepp appeals an order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to suppress the results of a blood test that led to his conviction for Driving Under the Influence (DUI). We address the following issue:
Whether or not the District Court erred by denying Shepp‘s motion to suppress the results of his blood test.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 On September 19, 2014, Ravalli County Deputy Sheriff Gordy Jessop pulled Shepp over after observing Shepp fail to signal a turn. Deputy Jessop asked Shepp if he had been drinking, and Shepp responded that he had “five or six beers” before driving. Deputy Jessop conducted a series of field sobriety tests and asked Shepp to consent to a preliminary breath test. Shepp refused. Deputy Jessop then asked Shepp to consent to a blood test at Marcus Daly Memorial Hospital in Hamilton. After several minutes of indecision, Shepp stated: “Sure, I‘ll take the blood test.” Deputy Jessop helped Shepp into his patrol car and explained the blood test procedure, to which Shepp responded: “Yes, sir.”
¶4 When he arrived at the hospital, Shepp was given a “Patient Consent and Financial Agreement” (Patient Consent Form) to sign. The Patient Consent Form provided: “I consent to the treatment and procedures to be performed in connection with my inpatient, outpatient and/or emergency medical treatment at Marcus Daly Memorial Hospital....” After Shepp studied the Patient Consent Form for several minutes without signing it, Deputy Jessop took it from him and signed on the signature line. Seconds later, Shepp‘s blood was drawn. Shepp did not verbally or physically resist the blood test.
¶5 On September 19, 2014, the State charged Shepp in the Ravalli County Justice Court with DUI in violation of
STANDARDS OF REVIEW
¶6 An appeal from a justice court that is not a court of record “must be tried anew in the district court on the papers filed in the justice‘s ... court unless the [district] court, for good cause shown and on terms that are just, allows other or amended pleadings to be filed in the action.”
¶7 We review a district court‘s grant or denial of a motion to suppress “to determine whether the court‘s findings of
DISCUSSION
¶8 Whether or not the District Court erred by denying Shepp‘s motion to suppress the results of his blood test.
¶9 Shepp concedes that he verbally consented to a blood test at the scene of the stop but contends he withdrew his consent by not signing the Patient Consent Form. “We have held that certain uncooperative actions by the motorist may comprise a refusal. A refusal to take a blood test does not have to be express but may be implied ....” Wessell v. State, 277 Mont. 234, 239, 921 P.2d 264, 266 (1996) (citing Johnson v. Division of Motor Vehicles, 219 Mont. 310, 711 P.2d 815 (1985) (holding that a defendant impliedly refused to take a breath test by continuing to ask for an attorney to be present before the test)); see Hunter v. State, 264 Mont. 84, 869 P.2d 787 (1994) (holding that a defendant impliedly refused to take a breath test because she was capable of completing the test but gave a deficient performance). Shepp contends that the facts of this case are analogous to the facts of Hunter and Johnson. The District Court rejected this argument, holding that Shepp gave express verbal consent to a blood test and never withdrew that consent.
¶10 In reaching its decision, the District Court found: “Shepp admitted he never informed Deputy Jessop or hospital personnel that he had changed his mind and withdrawn his consent, nor did he give any verbal indication that he refused consent.” This finding also is supported by Shepp‘s testimony at the July 13, 2015 suppression hearing, from which
¶11 Finally, the District Court found that the Patient Consent Form has no bearing on consent under Montana‘s DUI law. The District Court found that the Patient Consent Form is “an agreement between the hospital and its patients that encompasses issues regarding treatment, services, and payment.” We agree with the District Court‘s assessment, and note that Shepp has not pointed to any evidence to contradict this finding. The District Court‘s factual findings are not clearly erroneous, and the District Court correctly interpreted and applied the law to those facts. See Wagner, ¶ 9.
CONCLUSION
¶12 The District Court‘s order denying Shepp‘s motion to suppress the results of his blood test is affirmed.
CHIEF JUSTICE McGRATH, JUSTICES COTTER, McKINNON and WHEAT concur.