Submitted on Briefs: June 14, 2017
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.
Appellant: Sean Hinchey, Hinchey & Hinchey, PC,
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.
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
Did the District Court err when it affirmed the Hot Springs
City Court's denial of Berger's motion to dismiss?
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
Did the District Court err when it affirmed the Hot
Springs City Court's denial of Berger's motion to
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 ...