                                                                                         August 4 2015


                                       DA 14-0275
                                                                                       Case Number: DA 14-0275

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2015 MT 223N


STATE OF MONTANA,

          Plaintiff and Appellee,

     v.

JOHN HARVEY HOOTS,

          Defendant and Appellant.



APPEAL FROM:        District Court of the Thirteenth Judicial District,
                    In and For the County of Yellowstone, Cause No. DC 12-0477
                    Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                    John Harvey Hoots (self-represented); Shelby, Montana

                    Wade Zolynski, Chief Appellate Defender, James Reavis, Assistant
                    Appellate Defender; Helena, Montana

            For Appellee:

                    Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                    Assistant Attorney General; Helena, Montana

                    Scott D. Twito, Yellowstone County Attorney, Julie Patten,
                    Deputy County Attorney; Billings, Montana



                                                 Submitted on Briefs: July 15, 2015
                                                            Decided: August 4, 2015

Filed:

                    __________________________________________
                                      Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     John Harvey Hoots appeals the order and judgment of the Thirteenth Judicial

District Court, Yellowstone County, which sentenced him to 30 years at Montana State

Prison (MSP), and designated him a persistent felony offender, for the crime of operating

a motor vehicle with a blood alcohol concentration of 0.08% or more (DUI per se), a

felony. This charge was Hoots’ fourth felony charge for driving under the influence of

alcohol or drugs (DUI) and tenth lifetime DUI.

¶3     Hoots was arrested for DUI on July 31, 2012, after he drove away from a

confrontation with a neighbor, Daniel Belmarez. Belmarez saw Hoots drop his pants and

expose his genitals and buttocks while standing across the street from Belmarez’s house.

Belmarez yelled at Hoots to put his clothes on and called 911. Belmarez testified that

Hoots was visibly intoxicated. Hoots walked away, but later returned and began arguing

with Belmarez’s nephew. Belmarez, who was then inside with his mother, saw Hoots

gesture as if he was armed. Belmarez’s mother called 911 because she suspected Hoots

had a gun.

¶4     Officers Ross, Becker, and Frank responded to the call.          The officers and

Belmarez saw Hoots drive away in a pickup truck. The officers followed Hoots and
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pulled him over. Believing Hoots was armed, the officers approached the pickup with

guns drawn, and ordered Hoots to exit the pickup. Hoots smelled of alcohol, and his

speech was slurred. Hoots was unarmed, and the officers did not find a weapon in the

pickup. The officers discovered Hoots’ driver’s license was revoked, and they arrested

Hoots and took him to the Yellowstone County Detention Facility’s DUI processing

center for further investigation.

¶5     Officer Ross conducted the DUI investigation at the DUI processing center,

accompanied by Officers Frank and Becker. Hoots was given the Implied Consent

Advisory, which includes the right to have an independent blood test completed by a

doctor or a nurse after officers complete their evaluation. Hoots refused to take a breath

test, and requested an independent blood test. After the Implied Consent Advisory was

completed, Hoots stated, “But I request a blood test from Deaconess or St. Vincent’s.”

¶6     Officer Ross applied for a search warrant for a sample of Hoots’ blood. While

Officer Ross was applying for the warrant, Hoots stated, “I volunteer one. I request one.

Can I have a phone book?” Officer Becker, who was filming the evaluation, refused to

give Hoots a phone book. Hoots stated again, “I’d like a blood test.” Officer Ross

returned and explained that he had a warrant for a blood test. Hoots responded, “Cool.

Can I have a phone book to call my doctor?” Officer Ross refused the request for a

phone book. Hoots stated, “No phone call? No lawyer?” and Officer Becker responded,

“Not right now.” A blood sample was completed pursuant to the search warrant by Chris

Dumontier, LPN, with assistance from other officers. Hoots stated that his blood sample

was “going to blow the scale right out the roof.”
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¶7     Officer Ross then advised Hoots of his Miranda rights. Hoots declined to be

interviewed and requested an attorney. Officer Ross said, “Let’s get you next door and

get you booked in.” After Hoots was handcuffed, the following exchange took place:

       Officer Ross: Mr. Hoots, we’re going to go right this way, out the way we
       came. We’ll get you booked in, and you can make that phone call that
       you’ve been looking for.

       Hoots: Oh, you let me call a lawyer?

       Officer Ross: You can call whoever you want.

¶8     Hoots argues on appeal that he was denied his right to an independent blood test.

Hoots concedes this issue was not properly raised below and therefore requests we

exercise plain error review of this issue. This Court may discretionarily review claimed

errors that implicate a criminal defendant’s fundamental constitutional rights, even if no

contemporaneous objection is made, where failing to review the claimed error at issue

may result in a manifest miscarriage of justice, may leave unsettled the question of the

fundamental fairness of the trial or proceedings, or may compromise the integrity of the

judicial process. State v. Taylor, 2010 MT 94, ¶ 14, 356 Mont. 167, 231 P.3d 79.

¶9     Hoots argues that the State’s failure to allow him to obtain an independent blood

test was a violation of his due process right to obtain exculpatory evidence, and therefore

the charge should be dismissed according to § 61-8-405(2), MCA, and State v. Swanson,

222 Mont. 357, 722 P.2d 1155 (1986). Under § 61-8-405(2), MCA: “In addition to any

test administered at the direction of a peace officer, a person may request that an

independent blood sample be drawn by a physician or registered nurse.” In Swanson, a

defendant arrested for suspected DUI obtained an independent blood test from a
                                              4
physician, but the police did not properly refrigerate the sample making it unusable for

determining blood-alcohol content. Swanson, 222 Mont. at 359-60, 722 P.2d at 1156-57.

We held that the destruction of the sample by the police was a violation of Swanson’s due

process right to obtain exculpatory evidence, and therefore we instructed the district court

to dismiss the charge against Swanson. Swanson, 222 Mont. at 362, 722 P.2d at 1158.

¶10    We noted in Swanson that “[w]hile the police have no duty to assist an accused in

obtaining independent evidence of sobriety, they cannot frustrate such an effort through

either affirmative acts or their rules and regulations.” Swanson, 222 Mont. at 361-62,

722 P.2d at 1158. We have also held, however, that “the rule in Swanson will apply only

if the defendant can establish that he made a timely request for an independent test and

that a law enforcement officer unreasonably impeded his right to obtain the test.” State v.

Sidmore, 286 Mont. 218, 234, 951 P.2d 558, 568 (1997).

¶11    As soon as Officer Ross finished processing Hoots, he told Hoots, “You can make

that phone call that you’ve been looking for.” In response to Hoots’ inquiry, “Oh, you let

me call a lawyer?” Officer Ross responded, “You can call whoever you want.” Hoots did

not contact a doctor or nurse to obtain an independent blood test, although he could have

done so. The officers did not unreasonably impede Hoots’ right to an independent blood

test. Therefore, there was no violation of Hoots’ fundamental due process right to obtain

exculpatory evidence. This case is not appropriate for application of the plain error

doctrine.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion
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of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. Having reviewed the briefs and the record

on appeal, we conclude that the Appellant has not met his burden of persuasion.

Affirmed.



                                               /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




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