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State v. Moore

Supreme Court of Montana

May 8, 2018

STATE OF MONTANA, Plaintiff and Appellee,
MICHAEL EARL MOORE, Defendant and Appellant.

          Submitted on Briefs: April 4, 2018

          District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 15-215 Honorable James A. Haynes, Presiding Judge

          For Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney, Hamilton, Montana


         ¶1 Michael Moore appeals his conviction upon guilty plea for driving under the influence (DUI) in the Twenty-First Judicial District, Ravalli County. We affirm, and address the following issue:

Did the District Court err by denying Moore's motion to suppress blood test results obtained by a search warrant, for violation of due process?


         ¶2 On the evening of March 26, 2015, Montana Highway Patrol Trooper Adam Gane pulled Moore over near Corvallis after Gane observed Moore leave the road on the right, and then overcorrect to the left, crossing the center line. During the stop, Gane inquired about a half-full, one-liter bottle of Vodka beneath Moore's coat. Moore responded with slurred words that "I don't know where that came from, " and said the vehicle belonged to his son. Moore claimed he had consumed only a single beer that evening.

         ¶3 Moore did not have identification, but dispatch informed Gane that Moore had three prior DUI convictions, a suspended driver's license, and a pending arrest warrant. Gane observed that Moore smelled of alcohol, slurred his words, had bloodshot eyes, and had difficulty balancing. Gane conducted a horizontal gaze nystagmus test, which indicated Moore was intoxicated. Moore declined further field sobriety tests, citing a back injury.

         ¶4 Trooper Gane arrested Moore. Gane read Moore the preliminary alcohol screening test advisory and asked Moore to take a preliminary breath test. Moore refused. Gane then started to read the implied consent advisory to Moore. However, before Gane could finish reading the advisory, Moore interrupted him and said, "We can cut this short, I'm not gonna do anything till I talk to my attorney." Gane interpreted Moore's interruption and comments as a refusal of any further testing, and did not finish the advisory, including the portion stating that Moore could seek an independent sobriety test. Instead, Gane informed Moore that he was going to apply for a search warrant to have Moore's blood drawn, to which Moore replied, "OK."

         ¶5 Trooper Gane drove Moore to Marcus Daly Memorial Hospital in Hamilton. During the ride, Moore appeared to drift in and out of consciousness. While parked in the hospital parking lot, Gane applied for a telephonic search warrant for a blood draw from his patrol car. Gane relayed to the Justice of the Peace the results of his investigation that indicated Moore was driving under the influence. Part of Gane's oral application included reading from a pre-printed application form, during which Gane incorrectly stated that Moore had been informed of his right to an independent blood test. Gane later testified that Moore, sitting in the backseat, overheard the conversation, which was on speakerphone, and the District Court found that Moore did not dispute Gane's testimony in this regard. Upon consideration of the application, the Justice of the Peace found there was probable cause for issuance of a warrant authorizing the draw of two vials of Moore's blood. The blood obtained pursuant to the warrant was analyzed by the Montana State Crime Lab, indicating a .332 blood alcohol concentration. Moore was hospitalized that night due to a medical condition, and the hospital conducted an independent blood alcohol analysis for medical treatment.

         ¶6 The State charged Moore with felony DUI and misdemeanor offenses of driving while suspended, reckless driving, failure to have liability insurance, and unlawful possession of an open container. Moore moved to suppress the blood tests obtained pursuant to the warrant, asserting a violation of due process by Gane's failure to advise Moore of his right to an independent blood draw. The State then applied for issuance of an investigatory subpoena to the hospital, which ordered production of the following to the Ravalli County Attorney's Office:

A copy or reprint of any and all medical records, including but not limited to, x-ray reports, laboratory reports, admission records, progress notes, nursing notes, emergency room records, ambulance or emergency medical service records, physician orders and notes, treatment notes, related to the medical blood draw, and all other records ...

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