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State v. Harrison

Supreme Court of Montana

March 14, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
CHRISTINA LOUISE HARRISON, Defendant and Appellant.

          Submitted on Briefs: February 1, 2017

         APPEAL 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

          For Appellant: Nancy G. Schwartz, N.G. Schwartz Law, PLLC, Billings, Montana

          For 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

          Beth Baker Justice

         ¶1 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.[1] We reverse and remand.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 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 she refused.

         ¶3 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.

         ¶4 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.

         ¶5 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 for tampering.

         STANDARD OF REVIEW

         ¶6 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 ...


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