                                No. 8 7 - 0 2 1
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



STATE OF MONTANA, CITY OF BOZEMAN,
                 Plaintiff and Respondent,
         -vs-
ROBERT PETERSON,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:
         For Respondent:

                 Honorable Mike Greely, Attorney General,
                 Dorothy McCarter, Assistant Attorney General,
                 Helena, Montana,
                 Bruce Becker, Bozeman City Attorney,
                 Bozeman, Montana.
         For Appellant:

                  Larry Jent, Bozeman, Montana.


                                     Submitted on Briefs:    March 26, 1 9 8 7
                                        Decided: July 2 0 , 1987


Filed:     Jut 2 0 1487


                                    Clerk
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     Defendant was convicted of driving under the influence
of alcohol by the District Court, Eighteenth Judicial
District, Gallatin County.      We reverse and dismiss the
judgment of the District Court.
     At approximately 2:00 a.m., on March 23, 1985, Robert D.
Peterson was arrested in Bozeman, Montana, for driving under
the influence of alcohol.    He made a motion to dismiss in
Bozeman City Court on the grounds that the arresting officer
refused to allow him to take a blood test. The City Court
denied the motion and Peterson pled guilty on June 25, 1985.
The same day, Peterson filed a notice of appeal to the
District Court for a trial de novo. On September 6, 1985,
Peterson again made a motion to dismiss on the grounds he had
been denied due process of law by the officer's refusal to
allow him to take a blood test.
     The motion was scheduled for hearing September 27, but
the parties stipulated for a continuance until October 18,
1985.   The hearing on the motion was held October 25 and
taken under advisement by the District Court.     No further
action was taken until March 28, 1986, when the State of
Montana filed a motion to set a trial date.
     On April 11, 1986, the District Court denied Peterson's
motion to dismiss and set a trial date of May 30, 1986. On
May 21, 1986, Peterson filed a second motion to dismiss on
the grounds that he had been denied his constitutional right
to a speedy trial. The District Court denied this motion and
trial was held May 30. The court again took the matter under
advisement until September 30, 1986, when the court found
Peterson guilty of driving under the influence of alcohol.
Peterson was sentenced to pay a fine of $300, to spend 24
hours in the Gallatin County Detention Center, to attend
court school, and to have his driver's license suspended for
six months.     Peterson now appeals this conviction, raising
the following issues:
      1. Whether a person suspected of driving under the
influence of alcohol who refuses a breath test is entitled to
an independent blood test at his or her own expense?
      2. Whether the District Court's delay in considering
the defendant's motions denied him his constitutional right
to a speedy trial?
      The first issue has been decided by this Court in State
v. Swanson (Mont. 1986), 722 P.2d 1155, 1157, 43 St.Rep.
1329, 1332, where we held "one accused of a crime involving
intoxication has a right to obtain an independent blood test
to establish his sobriety regardless of whether he submits to
a police designated test." The question we decide here today
is whether the Swanson rule is to be applied retroactively.
      Generally, judicial decisions will apply retroactively.
Solem v. Stumes (1984), 465 U.S. 638, 642, 104 S.Ct. 1338,
1341, 79 L.Ed.2d 579, 586. The United States Supreme Court
has stated that "at a minimum, 'all "new" rules of
constitutional law must  ...    be applied to all those cases
which are still subject to direct review    ...   at the time
the "new" decision is handed down. ' "      Shea v. Louisiana
 (1985), 470 U.S. 51, 57, 105 S.Ct. 1065, 1069, 84 ~.Ed.2d 38,
45 (quoting United States v. Johnson (1982), 457 U.S. 537,
548, 102 S.Ct. 2579, 2586, 73 L.Ed.2d 202, 212.       Complete
retroactive application of a new constitutional rule is most
appropriate where the rule is designed to enhance the
accuracy of criminal trials.     Solem v. Stumes, 465 U.S. at
643, 104 S.Ct. at 1342, 79 L.Ed.2d at 587.          The basic
principles of retroactivity in criminal cases have been
enunciated in Linkletter v. Walker (19651, 381 U.S. 618, 85
S.Ct. 1731, 14 L.Ed.2d 601 and Tehan v. United States ex rel.
Shott (1966), 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453.
The factors to be considered in applying a new rule
retroactively or prospectively have been set forth by this
Court in LaRoque v. State (1978), 178 Mont. 315, 319, 583
P.2d 1059, 1061:
     1. Does the decision in question either establish a new
     principle of law by overruling established precedent on
     which the litigants relied or decide an issue of first
     impression    whose   resolution    was   not    clearly
     foreshadowed?
     2.   What are the merits of each case?
           A. What is the history, purpose and effect of the
           new principle of law?
           B. Whether retroactive application will further or
           retard the new principle's operation?
     3. Whether substantial inequity will result from
     retroactive application?
     The first factor we consider is whether the Swanson rule
overruled established precedent or decided an issue of first
impression whose resolution was not clearly foreshadowed. In
Swanson, this Court interpreted        61-8-405(2), MCA, as
granting to the defendant the right to obtain an independent
blood test to establish his or her sobriety regardless of
whether the defendant submitted to a police designated test.
Swanson, 722 P.2d at 1157, 43 St.Rep. at 1331-32. In that
case, the defendant was allowed to obtain a blood test at his
own expense after refusing the breath test requested by the
police. However, the blood sample was not properly preserved
and therefore could not be analyzed. In this case, defendant
Peterson refused to take the breath test requested by the
arresting officer and demanded to make a telephone call to
his attorney and to obtain a blood test. The police told him
if he did not take the breath test, he could neither make a
telephone call nor obtain a blood test. The defendant was
then placed in a holding cell until the afternoon of the same
day.
      In denying defendant's motion to dismiss for lack of due
process, the District Court may have relied on State v. Logan
 (Mont. 1985), 705 P.2d 123, 42 St.Rep. 1317.I In Logan, the
issue before this Court was whether the requirement under §
61-8-402 (3), MCA, that all persons arrested for suspicion of
driving under the influence of alcohol must take a breath
test before being allowed a blood test was a denial of due
process. This Court held there was no denial of due process,
absent any evidence of prejudice in the record of the
defendant's ability to defend himself. While Logan construed
5 61-8-402(3), MCA, and Swanson construed 5 61-8-405(2), MCA,
it is clear that the Swanson holding overruled the Logan
holding which denied a defendant the right to obtain a blood
test even after refusing the chemical test initially
designated by the police officer.
      The second factor we look to is the history, purpose and
effect of the Swanson rule and whether retroactive
application will further or retard its operation.           In
deciding Swanson, this Court relied on the Arizona Court of
Appeals' interpretation of a statute identical to $
61-8-405(2), MCA, in Smith v. Cada (Ariz. Ct. App. 1977), 562




1    The District Court in its order denying the motion cited
     State v. Christopherson (Mont. 1985), 705 P.2d 121, 42
     St.Rep. 1320. However, that case involved whether the
     refusal of a breath test and a request for an
     independent blood test constituted a refusal under 5
     61-8-402, MCA.
P.2d 390. Both this Court and the Arizona Court found that
refusal by the police to allow a defendant a blood test at
his or her own expense was an unconstitutional restraint on
the right of a criminal accused to attempt to obtain
independent evidence of his or her innocence.       Thus, the
purpose of the rule is to assure a defendant's due process
right to obtain exculpatory evidence. The effect of the rule
is to insure an accused is not wrongfully convicted by
suppressing evidence which may be favorable to him or her.
     We next consider whether retroactive application will
further or retard operation of the Swanson rule. Retroactive
effect should be given to new constitutional rules "whose
major purpose is to overcome an aspect of the criminal trial
that substantially impairs its truth-finding function and so
raises serious questions about the accuracy of guilty
verdicts in past trials." United States v. Johnson, 457 U.S.
at 544, 102 S.Ct. at 2584, 73 L.Ed.2d at 210 (quoting
Williams v. United States (1971), 401 U.S. 646, 653, 91 S.Ct.
1148, 1152, 28 L.Ed.2d 388, 395). Since a blood test relates
directly to fact-finding and may provide evidence of a
defendant's sobriety, retroactive application of the Swanson
rule will further its operation. In this case, although the
police informed Peterson he could call an attorney and obtain
"another" test, he was not allowed to do so until some ten
hours after his arrest.        This interference with the
defendant's right to obtain exculpatory evidence is the type
of denial of due process against which the Swanson rule was
designed to protect.
     Finally, we examine whether substantial inequity will
result from retroactively applying the Swanson rule.      The
State argues it would be inequitable to apply the rule
retroactively since the law under Logan was relied upon by
law enforcement officers and district court judges. However,
no empirical evidence is given in support of this contention.
The police in this case informed Peterson he had the right to
consult an attorney and to have another blood test at his own
expense, but they then prevented him from doing so by placing
him in a holding cell for over ten hours. The District Court
relied on State v. Christopherson (Mont. 1985), 705 P.2d 121,
42 St.Rep. 1320, for the rule that a police officer has the
right to choose the initial test. A police officer's choice
of the initial test to be administered does not obviate the
defendant's right to refuse that test and request another.
Further, the decision in Swanson which "established" the
right to obtain an independent blood test was based on a
factual situation where the police had allowed the defendant
to obtain an independent blood test, but then failed to
preserve the sample. So it cannot be said that the uniform
interpretation of $ 61-8-405(2) in this state was to deny a
defendant an independent blood test.
     For the purpose of clarification of our rule in Swanson
that one accused of a crime involving intoxication is
entitled to obtain a blood test, it should be explained that
the rule applies only when (1) the defendant has timely
claimed the right to a blood test, and (2) the officer or
officers do not unreasonably impede the defendant's right to
obtain a blood test.    If a blood test of the defendant is
unavailable through no unreasonable acts of an officer or
officers, the Swanson rule does not apply.
     We therefore reverse the order of the District Court and
order that the defendant's motion to dismiss on the grounds
of lack of due process be granted.         For the foregoing
reasons, we do not reach the second issue of speedy trial.


                                         Justice
W e Concur:




          Justices
