Submitted on Briefs: February 1, 2017
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DC 13-464 Honorable
Robert L. Deschamps, III, Presiding Judge
Appellant: Nancy G. Schwartz, N.G. Schwartz Law, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark,
Deputy County Attorney, Missoula, Montana
Christina Harrison fled the hospital after being transported
there for a blood draw following her arrest for driving under
the influence. Harrison sought to dismiss the resulting
tampering with evidence charge. The District Court denied her
motion and a jury convicted Harrison of tampering with
evidence. We reverse and remand.
AND FACTUAL BACKGROUND
A Missoula police officer pulled Harrison over in September
2013 after observing her driving at night with no headlights.
After making contact with Harrison and observing various
signs of intoxication, the officer administered preliminary
field sobriety tests. Harrison failed the tests, and the
officer asked her to take a preliminary breath test, which
The officer placed Harrison under arrest and transported her
to the police station, where the officer applied for a
telephonic search warrant to obtain a blood sample from
Harrison. After obtaining the warrant, the officer
transported Harrison to the hospital for a blood draw. There,
the officer removed Harrison's handcuffs to facilitate
the blood draw. While the officer was filling out paperwork,
Harrison fled. She was not located until the next day.
The State charged Harrison with tampering with or fabricating
physical evidence in violation of § 45-7-207, MCA. The
charge was based on Harrison's leaving the hospital and
thereby preventing a blood sample from being drawn. Harrison
sought dismissal of the tampering charge on the ground that
blood is not evidence until it is removed from the body. She
relied on our decision in State v. Peplow, 2001 MT
253, 307 Mont. 172, 36 P.3d 922, to support her position.
The District Court denied Harrison's motion. Harrison
renewed her motion following the State's presentation of
evidence, and the District Court again denied it. The jury
found Harrison guilty. The court sentenced Harrison to a
period of four years with all four years suspended for the
tampering count. Harrison appeals her conviction and sentence
We review a district court's decision on a motion to
dismiss in a criminal case de novo. State v. Nelson,
2014 MT 135, ¶ 16, 375 Mont. 164, 334 P.3d 345. When the
dismissal is based upon the interpretation or construction of
a statute, we determine whether the district ...