                                          No.    90-414
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                1991



THE STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
BRIAN TRENT WELDELE,
            Defendant and Appellant.



APPEAL FROM:        District Court of the First Judicial District,
                    In and for the County of Lewis & Clark,
                    The Honorable Jeffrey Sherlock, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                    Charles A. Graveley, Helena, Montana.
            For Respondent:
                    Hon. Marc Racicot, Attorney General, State of
                    Montana, Helena, Montana;      Michael J. Rieley,
                    Assistant City Attorney, City of East Helena, Luxan
                    & Murfitt, Helena, Montana.



                                                       Submitted: March 28, 1991
                                                       Decided :   May 7, 1991
Filed:

         STA-rE GF i i ~ ~ e i + ~ i ~ i i ~
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Brian Trent Weldele appeals an order and a judgment of the
First Judicial District, Lewis and Clark County, which denied his
motion to dismiss and found him guilty of driving while under the
influence of alcohol (third offense), a misdemeanor. The District
Court sentenced Weldele to the following:    one year imprisonment
with thirty days suspended, a $1,000.00 fine, a $10.00 mandatory
surcharge fee, court costs, suspended his driver's license, and
ordered him to attend the ACT program through Boyd Andrew Care
Center.   We affirm.
     The sole issue presented on appeal is a factual dispute:
following his arrest for driving under the influence of alcohol,
did Weldele request a blood test during the booking process, and
did the arresting police officer deny him this right? A videotape
of the Weldelels booking process, although poor in quality, is
consistent with the arresting police officer's testimony that
although Weldele once inquired about a blood test, he never at any
time requested that a blood test be performed. We therefore agree
with the District Court and hold that, based upon the videotape and
the testimony of the arresting police officer, Weldele did not
request a blood test during the booking process and accordingly,
was not denied his right to a blood test.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
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     this Court   and   by   a   report   of   its result   to West

Publishing Company.
     Let remittitur issue forthwith.




We concur:
                         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          No. 90-414

         THE STATE OF MONTANA,                         1
                                                       1
--   -     --
                         Plaintiff and Respondent,     1
           -    v.
                     -

                                                       ;-
                                                       1
                                                               - - -   --




         BRIAN TRENT WELDELE,                          1
                                                       1
                         Defendant and Appellant.      1


              On May 7, 1991, the Opinion of this Court was issued in the
         above-entitled appeal. It appearing that there is an error in said
         Opinion,
              IT IS ORDERED that the following language found at page 2 of
         the Opinion of this Court dated May 7, 1991,          . . . one year
         imprisonment with thirty days suspended, .        .
                                                     . I 8 be amended to read,

         It.   . .
                one year imprisonment with all but thirty days suspended,

              The Clerk is directed to mail a true copy of this order to
         coun.sel of record for the respective parties.
              DATED this )        day of May, 1991.
