                                                               NO.              92-127

                        I N THE SUPREME C U T O THE STATE O M N A A
                                         O R   F           F OTN

                                                                        1992



J M E S STANLEY TEN EYCK

                      P e t i t i o n e r and A p p e l l a n t ,



STATE O F M N A A
           O T N ,
DEPARTMENT O JUSTICE,
             F

                      Respondent and F.esponden.t.




APPEAL F O :
        R M                              D i s . t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
                                         I n and f o r t h e County o f F l a t h e a d ,
                                         The Honorable R o b e r t Boyd, J u d g e p r e s i d i n g .



COUNSEL O F RECGRD:

                      For A p p e l l a n t :

                                         David M. O r t ! e y , A t t o r n e y a t TJaw, K a l i s p e l l , Montana

                      F o r Resporl6ent:

                                         Hon.      Marc Kacicot, Attorney G e n e r a l ,                     Helena,
                                         Montana
                                         K a t h y See1 e y , Assistant Attorney General, H e l e n a ,
                                         Montana
                                         Ted 0 . L y ~ a p u s , County A t t o r n e y , K a l i s p e l l , Montana
                                         E d C o r r j g a n , D ~ p u t y County A t t o r n e y , Ka1.ispel I.,
                                         Montana



                                                                       S u b m i t t e d on B r i e f s :   June 2 5 , 1 9 9 2
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                          - 1992
                              ,                                                              Decided:       August 6 , 1992
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    Justice John Conway Harrison delivered the Opinion of the Court.

           This is an appeal from the District Court of the Eleventh
    Judicial District of the State of Montana, in and for the County of
    Flathead.     On January 14, 1992, the driver's license of appellant
    James Stanley Ten Eyck (Ten Eyck) was seized pursuant to 5 61-8-
    402 (3), MCA, due to his refusal to submit to a chemical test to
    measure or detect alcohol in his body.        Ten Eyck appealed the
    suspension of his license to the District Court pursuant to 5 61-8-
    403, MCA, and following an evidentiary hearing, the District Court
    refused to reinstate the appellant's driver's license.          Ten Eyck
    now appeals, we reverse.
           Two issues are presented on appeal:
           1.   Should the District Court have rescinded the suspension of
    Ten Eyckls driver's license on the ground that the hearing on his
    petition was held more than ten days after written notice of the
    petition for judicial review was provided by defense counsel to the
    county attorney?
           2.   Did the District Court err in holding that Ten Eyck was
    placed under arrest prior to his refusal to submit to a blood test
    to determine the presence or amount of alcohol in his body?
           On January 14, 1992, at approximately 9:30 p.m.,          Officer
    Clancy King of the Montana Highway Patrol received a report of a
    two-vehicle accident on Highway 93, north of Kalispell, Montana.
    When he arrived at the scene of the accident he found only a blue
    Ford pickup which was located in front of Ten Eyckls residence.

    The pickup had recently sustained extensive front-end damage.          The
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owner of the Ford pickup had abandoned the vehicle and left the
scene of the accident. A witness reported to Officer King that he
believed he saw another vehicle involved in the accident being
parked in Ten Eyckls garage.     Tire tracks leading from the scene
through the snow supported the witness1 statement.
        Approximately ten minutes after Officer King arrived at the
scene, Ten Eyck walked down his driveway to speak with Officer
King.     He admitted that he was one of the drivers involved in the
accident.     Officer King observed Ten Eyckls pickup parked in his
garage and noted that it too had recently sustained damage
including extensive damage to the bumper area, the tailgate and box
area and the rear window had been broken out.    Officer King asked
Ten Eyck to have a seat in his patrol car to examine his driver's
license; at that time the Officer became aware of an odor of
alcohol coming from Ten Eyck.    Officer King questioned Ten Eyck if
he had been drinking and Ten Eyck informed the Officer that he,
indeed, had consumed a couple of beers.
        Although Ten Eyck suffered minor injuries from the accident
including an injury to his left arm and a bump on the head as a
result of hitting his head on the rear window of the truck, he did
not request medical assistance. Officer King testified that he did
not notice any impairment of Ten Eyckls speech, noting that it was
understandable but was marked with frequent hesitation or pauses.
Further, Officer King did not notice any impairment in Ten Eyckss
balance.     Due to the head injury, Officer King decided that the
"one-legged standg1 field sobriety test should not be given.
Officer King did, however, perform a Horizontal Gaze Nystagmus

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    (HGN) test on Ten Eyck and testified that "there was a nystagmus at
    the maximum deviationv' indicating to the Officer that Ten Eyckts
    blood alcohol content was "[mlost likely,   . . . over a   .lo, which

    is blood alcohol concentrati~n.~~
                                   However, Officer King went on to
    say that "[a] head injury will cause a nystagmus in some people."
            Due to the Officer's perception of the odor of alcohol, Ten
    Eyck's admission that he had been drinking, and the results of the
    HGN test, Officer King testified that he informed Ten Eyck that he
    was going to request a blood test.      During direct examination,
    Officer King testified that Ten Eyck was under arrest for Driving
    under the Influence, DUI, but on cross-examination the Officer
    testified that after he had       administered the HGN test, and
    discussed with Ten Eyck his injuries from the accident, he informed
    him that another officer would be coming shortly to transport him
    to the hospital, where they would request a blood test.        Officer
    King conceded on cross-examination that while sitting in his patrol
    car he did not specifically tell Ten Eyck that he was under arrest;
    but said that later when he was reading the implied consent form to
    Ten Eyck in the hospital's emergency room, he told Ten Eyck that he
    was under arrest.      On further cross-examination, Officer King
    admitted that he did not recall at any time at the hospital or
    throughout the incident specifically telling Ten Eyck: "You are
    under arrest."
            While Officer King and Ten Eyck were waiting for another
    officer to take Ten Eyck to the hospital, Ten Eyck's wife arrived
    home; she ultimately took Ten Eyck to the hospital, due in part to
    the additional officer's less than timely arrival.     After being
   I
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examined at the hospital, Officer King had conversations with both
Mr. and Mrs. Ten Eyck and ultimately Ten Eyck refused to give a
blood sample.      Officer King testified that Ten Eyck read the
implied consent form before he refused the test.          Ultimately Ten
Eyck was allowed to return home with his wife. Ten Eyck's driver Is
license was subsequently seized.
       Ten Eyck filed his petition for judicial review of the
suspension of his driving privilege on January 23, 1992.          Later,
the District Court gave the county attorney and Ten Eycklsattorney
written notice that the matter was set for a hearing ten days
later, on February 10, 1992.
       In response to the issue of whether the District Court erred
in denying    the appellant's motion     for a   rescission of         the
suspension of his driver's license on the ground that the hearing
on the appellant's petition was held more than ten days after a
written notice was given to the county attorney, we note that the
District Court had fully complied with this Court's interpretation
of the requirements of 5 61-8-403, MCA, in the case of State v.
Johnson (1979), 182 Mont. 24, 594 P.2d 333.           In Johnson, the
statute provided for thirty days' written notice of the hearing to
the county attorney; it was amended in 1983 to be limited to a ten-
day time period.    Here the notice requirements of   §   61-8-403, MCA,
have been fulfilled.    In appellant's reply brief, he acknowledges
that he was unaware of the decision in Johnson.           Ten Eyck sets
forth no support for his claim that he was denied due process.         He
received a District Court hearing within nineteen days after he
filed his petition for judicial review of his driver's license

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    suspension.    There is no evidence presented before the District
    Court as to whether the appellant was affected by the suspension or
    even whether he complied with the suspension of his license.      He
    apparently had possession of his driver's license for at least part
    of the time between his refusal and the hearing.   The law provides
    that Ten Eyck was entitled to a 72-hour driving permit following
    the seizure of his license and could have obtained a stay of
    suspension of his license pending his appeal.       See Matter of
    Vinberg (1985), 216 Mont. 29, 699 P.2d 91.
           As to the second issue presented to us, whether the District
    Court erred in holding that Ten Eyck was placed under arrest prior
    to his refusal to submit to a blood test to determine the presence
    or amount of alcohol in his body, we find that the record does not
    support the District Court's holding.
           The record does not support a finding that the appellant was
    placed under arrest or ever physically restrained by Officer King.
    It is evident that on both direct and cross-examination there is
    considerable question whether Officer King directly indicated to
    Ten Eyck, either at the scene of the accident or throughout their
    discussions, that he was under arrest. Ten Eyck was allowed to go
    to his house while an investigation was made by the Officer; the
    Officer allowed Ten Eyck's wife to take her husband to the hospital
    and it was not until several hours after the accident and after he
    had been read the implied consent form, that Ten Eyck had any
    reason to believe he could not walk away free; after Ten Eyck
    refused to take the blood test, Officer King left the hospital and
    Ten Eyckts wife took Ten Eyck home; no citations were issued; no
court dates were set; and Ten Eyck had no reason to believe that at
any time during this period he was under arrest.
     On this record we conclude that Ten Eyck was not arrested and
the subsequent suspension of his driver's license was unlawful and
said suspension should be rescinded. We reverse the District Court
in this matter and direct the court to reinstate James Stanley Ten
Eyck's driver's license.   Reversed and remanded.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur:        /
