In a split decision, the Montana Supreme Court recently upheld the felony driving under the influence conviction of a Ravalli County man whose blood tests were found to be three times over the legal limit following his arrest.
Michael Earl Moore appealed his conviction of a March 2015 DUI, saying the district court had erred when it denied a motion to suppress the blood test results obtained through a search warrant.
According to court documents, a Montana Highway Patrol Officer pulled Moore over near Corvallis after seeing Moore’s vehicle leave the road on the right-hand side and then overcorrect to the left, crossing the center line.
During the stop, the trooper noticed a half-full, one-liter bottle of vodka beneath Moore’s coat.
Moore’s slurred reply was, “I don’t know where that came from,” and he told the officer the vehicle belonged to his son.
Moore did not have any identification. Dispatch informed the trooper that Moore had three prior DUI convictions, a suspended driver’s license and a pending arrest warrant. Moore declined field sobriety tests, citing a back injury.
After Moore refused to complete a preliminary breath test, the trooper began to read the implied consent advisory to Moore.
Under Montana’s implied consent statute, anyone driving on public roads is considered to have given consent to tests of their blood or breath. If someone is arrested and refuses the test, the arresting officer is required to immediately seize their driver’s license.
And if, as in this case, the person has previously been convicted of DUI, then the officer can apply for a search warrant to collect a blood sample.
The person accused of DUI also has the right to obtain a sobriety test independent on what’s being offered by the officer. That fact must be conveyed by the officer.
Before the trooper could complete reading the advisory, according to court documents, Moore interrupted and said, “We can cut this short. I’m not gonna do anything until I talk to my attorney.”
The trooper stopped reading the advisory, including the portion that said Moore could seek an independent sobriety test. The trooper told Moore that he was going to apply for a search warrant to have Moore’s blood drawn, according to court records, and Moore said OK.
During the trip to the Hamilton hospital, Moore appeared to drift in and out of consciousness. While in the vehicle, the trooper called a justice of the peace and made an oral application for a search warrant.
During that process, the trooper incorrectly stated that Moore had been informed of his right to an independent blood test.
The justice found there was probable cause to draw Moore’s blood. An analysis found a .322 blood alcohol concentration. In Montana, a person is consider impaired while driving at .08 BAC.
After being charged with felony DUI and misdemeanor counts of driving while suspended, reckless driving, failure to have liability insurance and unlawful possession of an open container, Moore moved to suppress the blood tests obtained due to the warrant on an assertion that due process had been violated because of the trooper’s failure to inform him of his right to an independent blood draw. Moore also moved to suppress medical records obtained through a subpoena with an argument that it violated his right to privacy.
During an evidentiary hearing on Moore’s suppression motions, Ravalli County District Judge James Haynes ruled that Moore had failed to rebut the state’s argument “that any irregularity in the telephonic search warrant process had no effect on the substantial rights of Moore.”
Moore then pleaded guilty to felony DUI, while reserving the right to appeal on the suppression issues.
The Montana Supreme Court found that Moore’s due process rights were not violated because Moore interrupted the trooper when he was attempting to read the implied consent advisory and said he wouldn’t do anything until he spoke with his attorney.
The trooper accepted that statement at face value that Moore would not do “anything” more and also when Moore said “OK” when he told that a search warrant would be obtained for his blood, the ruling read.
“Considering the circumstances, we conclude that Moore’s due process rights were not violated,” read the ruling. “As we have explained herein, the independent test advisory is of constitutional dimension and we do not excuse its reading lightly. However, the substantial circumstances, including the advisory’s reading was impeded by Moore, have convinced us that there was no fundamental unfairness and that circumstances ‘fall short of such a denial’ of due process.”
Three justices dissented, saying Moore’s due process rights were violated because he wasn’t provided sufficient notice of his right to independent blood test.