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                                                                No. 98-075



                              IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 12N




                                                       STATE OF MONTANA,



                                                       Plaintiff and Respondent,



                                                                      v.



                                                       HARVEY CALDWELL,



                                                       Defendant and Appellant.




                               APPEAL FROM: District Court of the Third Judicial District,

                                                  In and for the County of Powell,



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                                           Honorable Ted L. Mizner, Judge Presiding.




                                                      COUNSEL OF RECORD:



                                                              For Appellant:



                              Patrick T. Gallagher, Skakles & Gallagher, Anaconda, Montana



                                                             For Respondent:



                           Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins,

                                          Assistant Attorney General, Helena, Montana



                                Chris Miller, Powell County Attorney, Deer Lodge, Montana




                                               Submitted on Briefs: January 7, 1999



                                                      Decided: January 26, 1999



                                                                   Filed:




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                                      __________________________________________

                                                                     Clerk




                      Chief Justice J. A. Turnage delivered the Opinion of the Court.



¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. In proceedings on appeal from the Powell County Justice Court to the Third
Judicial District Court, Powell County, Harvey Caldwell moved to dismiss a charge
against him of driving under the influence of alcohol (DUI), third offense, arguing
that the arresting officer did not have a particularized suspicion justifying an
investigatory stop and that the officer illegally obstructed his right to obtain an
independent blood test. Caldwell's motion to dismiss was denied, he appealed to this
Court, and we ruled that the appeal was not premature. State v. Caldwell, 1998 MT
261, 968 P.2d 711, 55 St.Rep. 1076. We now affirm the decision of the District Court.

¶3. In arguing that the arresting officer did not have a particularized suspicion
justifying the stop of his vehicle, Caldwell points out that the officer testified that
Caldwell was not swerving, weaving, or crossing the center line of the highway while
he was driving. Caldwell also contends that the court's finding that he was driving
too fast is clearly erroneous because, on cross examination, the officer indicated that
he was not close enough to observe Caldwell's vehicle swerve or weave. Caldwell says
that if the officer was not close enough to observe whether Caldwell was swerving or
weaving, the officer was not close enough to observe whether Caldwell was driving
too fast.

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¶4. Whether particularized suspicion exists is a question of fact depending on the
totality of the circumstances. State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540,
542-43. In this case, the officer had received the report of a citizen informant that
Caldwell was drunk and was driving a vehicle matching the description of Caldwell's
vehicle in the direction and in the area in which the officer spotted him. The officer
observed Caldwell's license plate number and was told by his dispatcher that the
plates were expired. Further, after the officer made a U-turn and began following
Caldwell's vehicle, Caldwell stopped in the traffic lane for ten to fifteen seconds, then
started up again and made a quick left turn at the first cut-off road. Then Caldwell
accelerated heavily as he rounded a curve. The officer testified that he knew Caldwell
was driving too fast because he had to attain a similar speed to keep up with
Caldwell. We hold that the District Court did not err in finding that the officer had a
particularized suspicion justifying an investigatory stop.

¶5. Caldwell's argument that the officer obstructed his right to obtain an
independent blood test is based on his contention that he requested such a test only
twenty to thirty minutes after he was read the implied consent law. The District
Court found that Caldwell's request for a blood test was made approximately forty-
five minutes after he was booked and put in a cell.

¶6. The accused must timely assert his right to a blood test. City of Whitefish v.
Pinson (1995), 271 Mont. 170, 172, 895 P.2d 610, 612. The arresting officer testified
that Caldwell originally declined the opportunity for an independent blood test, but
after forty-five minutes to an hour changed his mind and asked to have one. Caldwell
himself admitted that it may have been up to an hour after he was booked that he
requested a blood test. It was the prerogative of the court, as the trier of fact, to
resolve this conflict in the evidence as to how much time passed before Caldwell
asked for an independent blood test. See State v. Sattler, 1998 MT 57, ¶ 55, 956 P.2d
54, ¶ 55, 55 St.Rep. 230, ¶ 55.

¶7. The record demonstrates no impediments to Caldwell's assertion of his right to
have an independent blood test prior to the time he finally requested one. We hold
that because Caldwell did not make his request when, or even shortly after, he was
advised of his right to obtain an independent blood test, his request was not timely
and was properly denied.

¶8. We affirm the decision of the District Court.

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/S/ J. A. TURNAGE



We concur:



/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART




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