                                                                                                03/14/2017


                                          DA 14-0799
                                                                                            Case Number: DA 14-0799

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 60



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

CHRISTINA LOUISE HARRISON,

               Defendant and Appellant.


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


COUNSEL OF RECORD:

                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



                                                   Submitted on Briefs: February 1, 2017

                                                               Decided: March 14, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶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

1
 The jury also convicted Harrison of driving under the influence and escape. Harrison does not
challenge those convictions.
                                           2
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 court’s interpretation or construction is correct as a matter of law.

Nelson, ¶ 16.

                                     DISCUSSION

¶7     Whether the District Court erred in concluding that Harrison’s blood, while still
within her body, constituted physical evidence subject to tampering.

¶8     The District Court found Harrison’s arguments for dismissing the tampering count

“pretty compelling,” but it “vacillated back the other way” after considering the State’s

brief. After noting that there had recently “been a change in the law,” the court opined

that this was “an issue that ought to be resolved” by this Court. The court concluded that


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it was “going to let this evidence go forward,” and that it would “go forward on all three

counts.”

¶9    On appeal, Harrison asserts that our holding in Peplow controls. She contends that

legislative changes to the implied consent statutes do not alter our ruling in that case.

Harrison accordingly argues that the District Court erred in not dismissing the tampering

charge.

¶10   The State counters by contending that Peplow is factually distinguishable from the

instant case and was limited to the specific issue we considered in that case. Thus, the

State asserts that Peplow is inapplicable.    The State argues that even if Peplow is

applicable, it is no longer controlling given amendments to the relevant statutory

provisions.

¶11   In Peplow, the defendant was charged with tampering with evidence under

§ 45-7-207, MCA. Peplow, ¶ 11. The tampering charge was based on the fact that the

defendant consumed alcohol following an accident and prior to his blood alcohol level

being tested. Peplow, ¶ 11. We framed the issue as whether “consuming alcohol after a

vehicle accident constitute[d] tampering with physical evidence under § 45-7-207,

MCA.” Peplow, ¶ 18.

¶12   Section 45-7-207, MCA, provides in pertinent part:

      A person commits the offense of tampering with or fabricating physical
      evidence if, believing that an official proceeding or investigation is pending
      or about to be instituted, the person:




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       (a) alters, destroys, conceals, or removes any record, document, or thing
       with purpose to impair its verity or availability in the proceeding or
       investigation[.]

Section 45-7-207(1)(a), MCA. We noted in Peplow that while “physical evidence” is not

defined in the tampering statute, “evidence” is defined in § 26-1-101(2), MCA.

Peplow, ¶ 21. That section defines “evidence” as “the means of ascertaining in a judicial

proceeding the truth respecting a question of fact, including but not limited to witness

testimony, writings, physical objects, or other things presented to the senses.” Section

26-1-101(2), MCA. Reading the tampering statute together with the statutory definition

of evidence, we clarified that the specific issue to be decided in Peplow was “whether a

person’s blood alcohol content, as it exists inside their body and within their control,

constitutes ‘physical evidence,’ or a ‘thing presented to the senses.’” Peplow, ¶ 22

(quoting § 45-7-207, MCA, and § 26-1-101(2), MCA).

¶13    In concluding that blood within an individual’s body does not constitute physical

evidence or a thing presented to the senses, we emphasized that “evidence of alcohol or

drugs in a person must be ‘shown by an analysis of the person’s blood or breath’ for it to

be admissible.” Peplow, ¶ 25 (quoting § 61-8-404, MCA). “Stated otherwise,” we

clarified, one’s blood alcohol level “is not evidence until it exists in a state capable of

analysis.” Peplow, ¶ 25. We pronounced:

       Section 61-8-404, MCA, clearly does not contemplate that potentially
       measurable amounts of alcohol, still within the human body, constitute
       evidence. Until one’s breath or blood has been obtained or collected for
       analysis, it simply cannot be considered “physical evidence,” as set forth in
       § 45-7-207, MCA, or a “thing presented to the senses,” as explained in
       § 26-1-101(2), MCA. Because a person’s blood alcohol level cannot be
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       determined until he or she expels either a sample of blood, air, or urine,
       such fluids simply cannot be considered physical evidence prior to being
       removed from the body. We therefore conclude that physical evidence of
       one’s alcohol content is limited to that which is collected for analysis of
       the person’s blood or breath, under § 61-8-404, MCA. One’s blood, and
       blood alcohol level, while still within his body, simply is not physical
       evidence.

Peplow, ¶ 26. Such a conclusion, we stressed, “avoids absurd results.” Peplow, ¶ 27.

We thus held that “the District Court erred when it held that Peplow’s [blood alcohol

level], while still within his body, constituted physical evidence subject to illegal

tampering.” Peplow, ¶ 28.

¶14    The State’s contentions that the facts and issue presented in Peplow limit its

application are misplaced. The fact that Peplow drank following an accident and prior to

having his blood alcohol level tested did not prove central to our ultimate conclusion that

“[o]ne’s blood, and blood alcohol level, while still within his body, simply is not physical

evidence.” Peplow, ¶ 26. Similarly, the fact that we initially framed the issue as whether

“consuming alcohol after a vehicle accident constitute[d] tampering with physical

evidence under § 45-7-207, MCA,” did not confine our final holding that “the District

Court erred when it held that Peplow’s [blood alcohol level], while still within his body,

constituted physical evidence subject to illegal tampering.” Peplow, ¶ 28. We are further

unpersuaded by the State’s assertion that these explicit conclusions following detailed

analysis are dicta.

¶15    Contrary to the State’s argument, the Legislature’s amendments to the implied

consent statute, § 61-8-402(5), MCA, and the statute defining what may be seized with a

                                         6
search warrant, § 46-5-224(1), MCA, do not impact Peplow’s authority here. The issue

Peplow addressed—and the issue on appeal here—is whether an individual’s blood,

while still in her body, constitutes “physical evidence” under § 45-7-207, MCA. Peplow,

¶¶ 22, 28.    While we cited other statutes in addressing this question—including

§ 61-8-402(1), MCA—our holding that blood inside an individual’s body does not

constitute evidence subject to tampering rested on our interpretation of § 45-7-207, MCA,

the definition of “evidence” under § 26-1-101(2), MCA, and what constitutes admissible

evidence under § 61-8-404(1)(a), MCA. Peplow, ¶¶ 21-26. The relevant portions of

those statutes have not been amended since our decision in Peplow.

¶16    The Legislature has enacted provisions allowing officers to obtain a search

warrant for a driver’s blood in certain circumstances. Section 46-5-224(1), MCA—

which the State emphasizes heavily—now provides that a “warrant may be issued under

this section to search for and seize any . . . evidence, including blood samples that may

yield evidence of any measured amount or detected presence of alcohol or drugs in a

person’s body when subjected to testing.” This statute makes plain that blood samples

may be seized pursuant to a search warrant. That does not, however, change what

constitutes “evidence” in the first place. For starters, blood is not a “sample” until it is

withdrawn. Plus, the new language references blood samples “that may yield evidence.”

Section 46-5-224(1), MCA (emphasis added). Finally, lack of a search warrant to draw

Peplow’s blood was not pertinent to our conclusion that “[o]ne’s blood, and blood




                                         7
alcohol level, while still within his body, simply is not physical evidence.” Peplow, ¶ 26

(emphasis added). The State’s arguments to the contrary are unavailing.

¶17    The State does not ask us to overrule Peplow. We hold that Peplow is dispositive

in the present case. Its language affords but one interpretation. Until Harrison’s blood

was “obtained or collected for analysis, it simply [could not] be considered ‘physical

evidence’ as set forth in § 45-7-207, MCA, or a ‘thing presented to the senses,’ as

explained in § 26-1-101(2), MCA.” Peplow, ¶ 26. Because Harrison’s “blood alcohol

level cannot be determined until . . . she expels either a sample of blood, air, or urine,

such fluids simply cannot be considered physical evidence prior to being removed from

the body.” Peplow, ¶ 26. Consistent with this precedent, we conclude that “physical

evidence of [Harrison’s] alcohol content is limited to that which is collected for analysis

of [her] blood or breath.” Peplow, ¶ 26.

¶18    Finally, we reject the State’s argument that a ruling in Harrison’s favor will tie the

hands of law enforcement in conducting investigations. As noted, the law authorizes a

search warrant to obtain blood samples to detect the presence of alcohol or drugs.

Section 46-5-224(1), MCA. Harrison’s actions at the hospital to evade the ordered blood

draw resulted in her conviction for escape, and conceivably could have garnered an

additional charge for obstructing a peace officer under § 45-7-302, MCA. In other

words, there are specific statutory tools to ensure accountability for offenders who

impede lawful investigations.




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                                     CONCLUSION

¶19    We conclude that the District Court erred in denying Harrison’s motion to dismiss

when it determined that Harrison’s blood, “while still within [her] body, constituted

physical evidence subject to illegal tampering.” Peplow, ¶ 28. We reverse Harrison’s

conviction for tampering with evidence and remand for entry of judgment consistent with

this opinion.


                                                 /S/ BETH BAKER

We concur:

/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE

Justice Michael E Wheat, dissenting.


¶20    I dissent from the Court’s decision reversing the District Court’s denial of

Harrison’s motion to dismiss the tampering with evidence charge brought against her

after she fled the hospital to avoid having her blood drawn pursuant to a lawful warrant. I

conclude the factual distinctions in Peplow are significant and render Peplow inapposite

authority for the case before us. Additionally, the 2011 legislative changes to the statutes

applied in Peplow and applicable to the case at bar require a new analysis and application

to the facts currently before us.

¶21    As noted by the majority, Peplow, after crashing his vehicle, left the scene of the

accident before officers arrived. As Peplow walked along the road and away from the

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accident scene, a passing couple asked if he needed assistance but he declined. The

couple called 9-1-1 and reported the accident and their suspicion that Peplow was

intoxicated. Peplow went home, consumed alcohol, left home, went to a tavern, and

consumed more alcohol. It was at the tavern that Montana Highway Patrol Officer Tom

Hamilton, the officer dispatched to investigate the accident, located Peplow

approximately 1 to 1.5 hours after the accident. Hamilton conducted a Horizontal Gaze

Nystagmus (HGN) test which indicated Peplow was highly impaired.              Subsequent

detention center tests indicated that Peplow was intoxicated with a .202 blood alcohol

level.

¶22      Unlike the facts in Peplow, Harrison was pulled over for driving at night with no

headlights. The officer, after observing signs of intoxication, conducted field sobriety

tests that indicated that Harrison was intoxicated. Of the eighteen indicators measured in

field sobriety tests, Harrison displayed fifteen indicators of impairment.      After she

refused to provide a preliminary breath test, she was arrested.         She subsequently

withdrew her implied consent to provide a blood sample.           Based upon Harrison’s

extensive DUI history, the arresting officer obtained a telephonic warrant to collect a

blood sample from Harrison pursuant to § 61-8-402(5), MCA, and transported her to the

hospital for the blood draw procedure. While the officer was completing the necessary

paperwork, Harrison fled the hospital and hid until the following day at which time blood

test results were no longer relevant to her charge of DUI.




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¶23    A significant and critical factual distinction between Peplow and the case before

us is that when Peplow went home after the accident and drank three double shots of

whiskey, went to the tavern and began drinking a beer, he was not under lawful arrest, in

custody, or subject to a warrant obtained in accordance with statutory requirements. No

officer had observed Peplow or performed field sobriety tests to determine whether he

was impaired or intoxicated at the time of the accident. Moreover, there was no judicial

determination—through application for and acquisition of a warrant—that evidence of

impairment existed prior to Peplow altering his blood alcohol content by consuming

alcohol after the accident. Consequently, our ruling that consuming alcohol after a

vehicle accident did not constitute tampering with physical evidence was the correct

ruling in Peplow. That narrow ruling, however, does not apply to this case.

¶24    The Peplow Court was constrained in its interpretation and application of certain

relevant statutes by both the facts in Peplow as well as the language of the statutes as they

existed at that time. I acknowledge that the tampering with evidence statute applied in

Peplow, § 45-7-207, MCA, with the exception of two minor word changes in 2009, is

identical to the statute applied in this case     When the Peplow Court analyzed the

tampering statute, it noted that the words “physical evidence” were not defined in the

criminal code. Consequently, it turned to the general definition of “evidence” set forth in

the Montana Rules of Evidence, and while the definition of “evidence” contained “things

presented to the senses,” the Peplow Court concluded that blood alcohol content (BAC)

within the body did not constitute such a “thing.” Peplow, ¶ 22.

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¶25   Subsequent to Peplow, the Montana Legislature revised parts of the criminal code

and the motor vehicle statutes, including § 61-8-402, MCA, and § 46-5-224, MCA. At

the time Peplow was decided, § 61-8-402, MCA, the “implied consent” statute in the

Motor Vehicles title of the Montana statutes, did not include a section authorizing law

enforcement officers to apply for a search warrant to collect a blood sample if the

arrested person refused to agree to a blood draw.       In 2011, the Legislature added

subsection (5) which provides in relevant part, “If the arrested person has refused to

provide a . . . blood . . . sample under 61-8-409 . . . the officer may apply for a search

warrant to be issued pursuant to 46-5-224 to collect a sample of the person’s blood for

testing.” Section 61-8-402(5), MCA.

¶26   A search warrant requires a neutral third party—a judge or magistrate—to assess

the evidence presented by law enforcement to determine the existence of probable cause.

In this case, the arresting officer obtained a telephonic warrant after a judge determined

probable cause existed and that a blood test was relevant evidence and warranted based

upon the results of Harrison’s field sobriety tests and the officer’s observations. At the

time the warrant was issued, Harrison became obligated to allow a blood draw. As noted

by the Arizona Court of Appeals in State v. Clary, 2 P.3d 1255, ¶ 16 (Ariz. 2000), “A

search warrant is a court order that authorizes police to intrude into an individual’s

privacy.” In Clary, the court described BAC evidence as “critical and often dispositive in

DUI cases,” and concluded that a warrant for a blood draw in a DUI case could be




                                        12
executed through the use of reasonable force if necessary. Clary, ¶¶ 19 and 28 n. 5.

Decisions such as Clary illustrate the significance of the power of the search warrant.

¶27    Also in 2011, the Legislature amended § 46-5-224, MCA.                Prior to that

amendment § 46-5-224, MCA, provided that “A warrant may be issued under this section

to search for and seize any: (1) evidence; (2) contraband, or (3) person for whose arrest

there is probable cause, for whom there has been a warrant of arrest issued, or who is

unlawfully restrained.” After 2011, § 46-5-224(1), MCA, provides: “evidence, including

blood samples that may yield evidence of any measured amount or detected presence of

alcohol or drugs in a person’s body when subjected to testing.” With this revision, the

Legislature declared that “evidence” seizable by search warrant included a blood sample

drawn to ascertain a person’s BAC.

¶28    I conclude that these legislative revisions state that a blood sample is “evidence”

that may be specified in a search warrant; consequently, such blood evidence is “physical

evidence” and a “thing” that may not be tampered with. This interpretation comports

with our rule of statutory construction that “specific provisions prevail over general

provisions.” State v. Plouffe, 2014 MT 183, ¶ 27, 375 Mont. 429, 329 P.3d 1255. In

other words, relying on the revised specific provisions in the criminal procedure and DUI

statutes is more appropriate than relying on the general evidence statutes as was required

in Peplow.

¶29    I therefore conclude that under the facts in this case, Harrison’s blood alcohol

content within her body became evidence upon her arrest and the issuance of the search

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warrant. It also became a “thing” with which she was not allowed to tamper. This is not

a novel conclusion. See, e.g., Botka v. Sec’y, Dep’t of Corr., 2012 U.S. Dist. LEXIS

139062, 2012 WL 4466489 (Fla.), in which the U.S. District Court for the Middle

District of Florida, Orlando Division, applying a statute almost identical to our tampering

statute, found that a “person’s blood alcohol level does constitute a ‘thing’ for purposes

of the Tampering with Evidence statues [sic].”

¶30    I agree with the majority that in cases involving an escapee or other offender who

impedes lawful investigations, law enforcement may charge him or her with escape

and/or obstructing a peace officer, in addition to the original underlying charge or

charges. However, for the reasons set forth in this Dissent, I believe under circumstances

such as those presented in this case, our statutes support being able to charge the offender

with tampering with physical evidence as well.

¶31    For these reasons, I would affirm the District Court’s denial of Harrison’s motion

to dismiss the evidence tampering charge. I respectfully dissent from the majority’s

failure to do so.


                                                 /S/ MICHAEL E WHEAT


Chief Justice Mike McGrath and Justice Laurie McKinnon join the Dissent of Justice

Michael E Wheat.


                                                 /S/ MIKE McGRATH
                                                 /S/ LAURIE McKINNON


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