Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Berger

Supreme Court of Montana

September 19, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
MICHAEL L. BERGER, Defendant and Appellant.

          Submitted on Briefs: June 14, 2017

         APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DC 16-68 Honorable Deborah Kim Christopher, Presiding Judge.

          For Appellant: Sean Hinchey, Hinchey & Hinchey, PC, Kalispell, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Kathryn McEnery, Hot Springs City Attorney, Hot Springs, Montana.

          MICHAEL E WHEAT J.

         ¶1 Michael Berger appeals the ruling of the Montana Twentieth Judicial District Court, Sanders County, affirming the Hot Springs City Court's denial of his motion to dismiss. We affirm.

         ISSUE

         ¶2 Did the District Court err when it affirmed the Hot Springs City Court's denial of Berger's motion to dismiss?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In March 2016, Hot Springs Police Officer Smith responded to multiple calls that Michael Berger was behaving violently and driving erratically and dangerously. Upon locating Berger and approaching him in the presence of multiple witnesses, all claiming Berger was intoxicated and had been driving erratically, Smith observed that Berger was visibly intoxicated. After Berger failed multiple field sobriety tests, Smith took Berger into custody, read the advisory for a preliminary alcohol screening test (PAST), and asked Berger to submit to the test. Berger refused and Smith arrested him for reckless driving, criminal mischief, DUI-second offense, and negligent endangerment and transported him to the detention center. Officer Smith did not inform Berger that he had the right to obtain an independent alcohol blood test.

         ¶4 In May 2016, Berger filed a motion to dismiss, arguing that Smith failed to read the Montana implied consent advisory required by § 61-8-405, MCA, and that such failure was a violation of Berger's due process rights. On May 31, 2016, the Hot Springs City Court denied Berger's motion. In August 2016, reserving his right to appeal the City Court's denial of his motion, Berger entered into a plea agreement pleading guilty to reckless driving, criminal mischief, and DUI-first offense. The charge of negligent endangerment was dismissed. The Hot Springs City Court approved the plea agreement and entered its Sentence and Order on August 3, 2016. On the same day, Berger filed his notice of appeal to the Twentieth Judicial District Court.

         ¶5 On September 16, 2016, the District Court issued its Order Upholding Denial of Defense Motion to Dismiss. The court held that the appropriate remedy for the failure of an officer to advise an accused of the right to an independent test is suppression of any blood or breath tests the State may have undertaken. The court thereby suppressed "any evidence of the [PAST] or any other blood or breath alcohol testing performed by the police." In November 2016, Berger appealed the District Court's order.

         STANDARD OF REVIEW

         ¶6 District courts serve as intermediate appellate courts for cases tried in municipal courts. The scope of district court review on intermediate appeal is confined to review of the record and questions of law. We review district court appellate decisions under the applicable standard of review as if originally appealed to this Court. City of Helena v. Grove, 2017 MT 111, ¶ 4, 387 Mont. 378, 394 P.3d 189 (internal citations omitted). The denial of a motion to dismiss is a question of law subject to de novo review. State v. Harrison, 2017 MT 60, ¶ 6, 387 Mont. 52, 390 P.3d 945.

         DISCUSSION

         ¶7 Did the District Court err when it affirmed the Hot Springs City Court's denial of Berger's motion to dismiss?

         ¶8 Berger maintains on appeal that Officer Smith was required to inform him of his right to obtain potentially exculpatory evidence through independent testing and that the officer's failure to read the Montana implied consent advisory to him as required in § 61-8-405, MCA, was a violation of his due process rights. He further argues that because he declined the PAST and there was no blood alcohol sample in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.