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State v. Neva

Supreme Court of Montana

April 10, 2018

STATE OF MONTANA, Plaintiff and Appellee,
LAURA LEE NEVA, Defendant and Appellant.

          Submitted on Briefs: March 7, 2018

          APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Stillwater, Cause No. DC 15-23 Honorable Brenda R. Gilbert, Presiding Judge.

          For Appellant: Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, J. Stuart Segrest, Assistant Attorney General, Helena, Montana, Nancy Rohde, Stillwater County Attorney, Columbus, Montana.



         ¶1 Laura Neva appeals her conviction upon a nolo contendere plea for driving under the influence (DUI) in the Twenty-Second Judicial District, Stillwater County. We affirm, and address the following issue:

Did the officer unreasonably impede Neva's right to obtain an independent blood test?


         ¶2 On the evening of July 6, 2014, Montana Highway Patrol Trooper Zachary Grosfield responded to a low-speed, rear-end collision in Absarokee. Neva, driving a 1997 Ford pickup, had rear-ended an SUV stopped at a stop sign. The initial impact pushed the SUV forward, and Neva then accelerated, hitting the SUV a second time. While questioning her about the accident, Officer Grosfield detected that Neva smelled of alcohol, slurred some of her words, and exhibited reddening in her eyes. Grosfield administered a field sobriety test, on which Neva did "very poorly, " though Neva stated she had a cow-roping injury that prevented her from properly performing the tests. The preliminary breath test indicated a .261 blood alcohol content. Neva seemed surprised, and requested to take it again. Grosfield placed Neva under arrest and informed her that another breath test would be administered on a different instrument at the Sheriff's office in Columbus.

         ¶3 On the drive to Columbus, Neva implied she had sued local law enforcement in the past, which resulted in four officers and a country attorney losing their jobs. Neva also told Grosfield that she had prevailed at the Montana Supreme Court twice in a case against a former landlord. Upon arriving at the station, Grosfield asked another person at the station to keep an eye on things, given Neva's apparent interest in litigation.

         ¶4 At the station, Neva had difficulty providing a proper breath sample. Grosfield noticed that Neva was placing her tongue into the straw and blowing around it. Grosfield told Neva he knew she could provide a sufficient breath sample because she had already done so. To inspire Neva to provide a proper sample, Grosfield stated, "otherwise we gotta go down to the hospital and get a blood draw and that's way too much work." Grosfield then read Neva the implied consent advisory, including the notification of her right to an independent blood test. Several hours after the accident, and with much encouragement from Grosfield, two breath samples were obtained from Neva, including readings of .199 and .184.

         ¶5 Neva again expressed surprise at the results because she did not feel intoxicated. Grosfield explained that heavily intoxicated people often do not feel inebriated and began to read Neva her Miranda rights. Neva interrupted to ask, "can I get a blood test too?" Grosfield responded, "you can get a blood test, " explaining it would be at her own expense and, "after we're finished here." Neva agreed to answer questions, but expressed continued interest in a blood test during the interview.

         ¶6 After the interview, Grosfield asked Neva if there was someone she could call to give her a ride to the hospital for the blood test. Neva asked Grosfield for a ride home, and Grosfield reminded Neva that she wanted a blood test and needed to go to the hospital first. Neva asked Grosfield to take her the hospital and then to her house. Grosfield explained he did not have time to do that, but went to his car to retrieve Neva's phone so she could arrange transportation to the hospital. When Neva stated she would call the friend she was drinking with earlier, Grosfield advised that anyone who was transporting her needed to be sober. Grosfield allowed Neva to attempt to arrange a ride while he finalized paperwork related to Neva's DUI charge. Neva made three phone calls, but no one answered.

         ¶7 Grosfield informed Neva he would take her to her house, and that she could continue her efforts to arrange a ride for a blood test. He encouraged her to do it promptly, given the amount of time that had elapsed since the accident. Arriving at Neva's house, Grosfield provided Neva with citations for aggravated DUI and careless driving, as well as written warnings for Neva's failure to have proof of insurance and a vehicle registration in the vehicle, ...

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