                                                                                                April 8 2014


                                          DA 13-0422

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 93



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JOSEPH GIACOMINI,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 2013-0210
                       Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Brad L. Arndorfer; Arndorfer Law Firm; Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Brenda K. Elias, Assistant
                       Attorney General; Helena, Montana

                       Melanie S. Pfeifer, Billings City Attorney’s Office; Billings, Montana



                                                    Submitted on Briefs: February 26, 2014
                                                               Decided: April 8, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Joseph Giacomini (Giacomini) appeals from the order entered by the Thirteenth

Judicial District Court, Yellowstone County, affirming the Billings Municipal Court’s

denial of his motion to suppress evidence obtained by a blood draw following a DUI stop,

and denial of his subsequent “Request for Hearing.” We affirm, restating Giacomini’s

issues on appeal as follows:

¶2     1. Did the District Court err by affirming the Municipal Court’s determination
that law enforcement properly withdrew Giacomini’s blood against his will after
obtaining a valid search warrant?

¶3   2. Did the District Court err by affirming the Municipal Court’s decision to deny
Giacomini’s “Request for Hearing” as untimely?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     On May 9, 2012, at 2:27 a.m., Officer Sean Weston (Officer Weston) of the

Billings Police Department observed Giacomini driving westbound on an eastbound,

one-way street. After initiating a traffic stop, Officer Weston noticed that Giacomini had

watery, blood-shot eyes and smelled of alcohol. Officer Weston engaged him in a series

of field sobriety tests, which indicated a likelihood of impairment. When Officer Weston

asked Giacomini to provide a preliminary breath sample, he refused. Officer Weston

then arrested Giacomini and transported him to the Yellowstone County Detention

Facility (YCDF) for further testing.

¶5     At the YCDF, Giacomini again performed poorly on field sobriety tests and again

refused to provide a breath sample. A search of his driving records revealed that he had

previously refused to provide a breath sample on November 12, 1990. Officer Weston


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contacted the Honorable Russell C. Fagg (Judge Fagg) via telephone in order to obtain a

search warrant authorizing withdrawal of a sample of Giacomini’s blood. The following

conversation took place under oath:

      [Officer Weston:] Judge, I have probable cause to believe that there is now
      in the body, blood or bodily fluid of Joseph Giacomini . . . alcohol and, or
      drugs; that together with the evidence constitutes the crime of Driving
      Under the Influence of Alcohol or drugs . . . . Mr. Giacomini was observed
      driving westbound in the twenty seven hundred block of Montana, which is
      a one way street that travels eastbound. Ahm, the following observations of
      symptoms and, or impairment were made of Mr. Giacomini by myself.
      Ahm, he had watery bloodshot eyes. He had a faint odor of a-, ahm,
      alcoholic beverage on his person. Ahm, he, ahm, was often swaying or
      staggering and couldn’t, had ahm, difficulty keeping his balance. Ahm,
      throughout the course of the, ahm, S.F.S.T.’s, I observed six out of six
      possible clues on the H.G.N., four out of eight possible clues on the walk
      and turn. And, on the one leg stand I observed three clues and indicating
      impairment. Ahm, he refused a P.B.T. test, as well as an intoxilyzer
      test. . . . I believe there is an immediate need to obtain this evidence in a
      timely manner because, based on my training and experience, alcohol and,
      or drug concentration in the body change and are completely eliminated
      from the body simply with the passage of time. Therefore, the evidence is
      perishable in nature and a time delay would render it useless. Based on the
      preceding facts, I am seeking a Telephonic Search Warrant. This concludes
      my affidavit, Your Honor. Do I have your permission to sign you[r] name
      to this affidavit and search warrant and then execute the search warrant?

      [Judge Fagg:] Yes you do. I believe you have, ahm, probable cause to
      execute the search warrant. So, you may do so.

Pursuant to the warrant, YCDF personnel attempted to draw a blood sample from

Giacomini. He became argumentative and had to be placed in a restraint chair. Law

enforcement videotaped the entire process. Eventually a blood sample was obtained and

sent to the Montana State Crime Lab, where subsequent testing established that

Giacomini’s blood alcohol content (BAC) was 0.12. Accordingly, the State charged

Giacomini with DUI under § 61-8-401(1)(a), MCA.

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¶6     After an omnibus hearing, Giacomini moved to suppress the results of the blood

test, arguing that the act of drawing his blood violated the Montana Constitution and was

not supported by probable cause. The Municipal Court orally denied his motion on

September 24, 2012, and issued its written Findings of Fact, Conclusions of Law and

Order on October 1, 2012. The court determined that law enforcement did not violate

Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant.

On November 7, 2012, Giacomini filed a motion entitled “Request for Hearing,” which

asked the Municipal Court to reconsider the suppression issue in light of video evidence

showing that YCDF personnel “continually stuck” him with needles. The court denied

the motion as untimely. Giacomini then entered a plea of nolo contendere, reserving the

suppression issues for appeal.

¶7     Giacomini filed a notice of appeal with the Thirteenth Judicial District Court.

After receiving the parties’ briefing, the District Court affirmed the Municipal Court’s

rulings. Giacomini appeals.

                                 STANDARD OF REVIEW

¶8     When reviewing a Municipal Court’s decision, a district court functions as an

intermediate appellate court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont.

81, 296 P.3d 461 (citing §§ 3-5-303, 3-6-110, MCA). In this capacity, a district court is

limited to a “review of the record and questions of law.” Section 3-6-110(1), MCA.

“Our ultimate determination is whether the district court, in its review of the trial court’s

decision, reached the correct conclusions under the appropriate standards of review.”

Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. When evidence

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gathered pursuant to a search warrant is subject to a motion to suppress, “this Court’s

function as a reviewing court is to ensure that the court issuing the search warrant had a

substantial basis to determine probable cause existed.” State v. St. Marks, 2002 MT 285,

¶ 12, 312 Mont. 468, 59 P.3d 1113 (citations omitted). A trial court’s determination that

a motion to suppress is untimely is a conclusion of law that we review for correctness.

State v. Greywater, 282 Mont. 28, 36, 939 P.2d 975, 980 (1997) (citation omitted). We

exercise plenary review over questions of constitutional law. State v. Daniels, 2011 MT

278, ¶ 11, 362 Mont. 426, 265 P.3d 623 (citation omitted).

                                     DISCUSSION

¶9     1. Did the District Court err by affirming the Municipal Court’s determination
that law enforcement properly withdrew Giacomini’s blood against his will after
obtaining a valid search warrant?

¶10   Montana’s implied consent statute provides, in pertinent part:

      (1) A person who operates or is in actual physical control of a vehicle upon
      ways of this state open to the public is considered to have given consent to
      a test or tests of the person’s blood or breath for the purpose of determining
      any measured amount or detected presence of alcohol or drugs in the
      person’s body.
                                          . . .

      (4) If an arrested person refuses to submit to one or more tests requested
      and designated by the officer as provided in subsection (2), the refused test
      or tests may not be given except as provided in subsection (5) . . . .

      (5) If the arrested person has refused to provide a breath, blood, or urine
      sample under 61-8-409 or this section in a prior investigation in this state
      or under a substantially similar statute in another jurisdiction or the arrested
      person has a prior conviction or pending offense for a violation of
      45-5-104, 45-5-106, 45-5-205, 61-8-401, 61-8-406, or 61-8-411 or a similar
      statute in another jurisdiction, the officer may apply for a search warrant to
      be issued pursuant to 46-5-224 to collect a sample of the person’s blood for
      testing.

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Section 61-8-402, MCA (emphasis added).          Blood samples drawn in violation of

§ 61-8-402, MCA, are inadmissible to prove DUI. State v. Thompson, 207 Mont. 433,

435, 674 P.2d 1094, 1095 (1984) (citation omitted). Prior to 2011, this statute did not

permit law enforcement to apply for a search warrant in DUI cases if an arrested person

refused to submit to BAC testing. See § 61-8-402, MCA (2009) (“If an arrested person

refuses to submit to one or more tests requested and designated by the officer . . . the

refused test or tests may not be given . . . .”). A blood sample could be taken pursuant to

a search warrant in cases where law enforcement had “probable cause to believe that an

offense other than the underlying DUI ha[d] occurred.” Collins v. Dept. of Just., Div. of

Hwy. Patrol, 232 Mont. 73, 78, 755 P.2d 1373, 1376 (1988); see Thompson, 207 Mont. at

436-39, 674 P.2d at 1096-97 (holding that evidence obtained from a nonconsensual blood

draw was admissible to prove negligent homicide). However, the statutory framework

was revised in 2011 by the Legislature’s passage of Senate Bill 42. Senate Bill 42 added

subsection (5) to § 61-8-402, MCA, quoted above, which authorized law enforcement to

apply for a search warrant for a blood draw in cases where an arrested person has

previously refused to provide a BAC sample. Laws of Mont., 2011, ch. 283, § 2.

       A.     Probable Cause

¶11    Giacomini begins his argument by challenging the search warrant authorizing the

blood draw as unsupported by probable cause. Montana law provides for issuance of a

search warrant when a law enforcement officer, under oath or affirmation, and in writing

or by telephone:


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       (1) states facts sufficient to support probable cause to believe that an
       offense has been committed;
       (2) states facts sufficient to support probable cause to believe that evidence,
       contraband, or persons connected with the offense may be found;

       (3) particularly describes the place, object, or persons to be searched; and

       (4) particularly describes who or what is to be seized.

Section 46-5-221, MCA. When evaluating whether probable cause exists to support the

issuance of a search warrant, this Court applies the “totality of the circumstances” test set

forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983). State v. Tucker, 2008 MT

273, ¶ 16, 345 Mont. 237, 190 P.3d 1080. Under this test, “the issuing judicial officer

must make a practical, common sense determination, given all the evidence contained in

the application for a search warrant, whether a fair probability exists that contraband or

evidence of a crime will be found in a particular place.” Tucker, ¶ 16 (citations omitted).

Probable cause does not require facts sufficient to establish that criminal activity has

occurred, only that there exists a probability of criminal activity. State v. Barnaby, 2006

MT 203, ¶ 30, 333 Mont. 220, 142 P.3d 809. We pay great deference to a magistrate’s

determination that probable cause exists to issue a search warrant, and we “draw all

reasonable inferences possible to support the issuing magistrate’s determination of

probable cause.” State v. Cotterell, 2008 MT 409, ¶ 59, 347 Mont. 231, 198 P.3d 254

(citations omitted).

¶12    Giacomini argues that his prior refusal of a breath test is insufficient to establish

probable cause to support a search warrant to draw his blood. Noting the change to

§ 61-8-402, MCA, in 2011, he argues that “[t]he legislature did not and cannot establish

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probable cause,” but that “judges in the state have taken that to mean that if there has

been a prior conviction, or a prior breath test refusal that is probable cause to issue a

search warrant.” The State responds that Giacomini “appears to conflate the statutory

authority granted to law enforcement officer[s] to apply for a search warrant with the

statutory requirements of a judge to issue a search warrant.” (Emphasis in original.)

¶13    We agree with the State. The revisions made to § 61-8-402, MCA, by Senate Bill

42 merely removed the statutory prohibition on seeking a search warrant for a blood draw

in those cases where the arrested person has previously refused a test.1                      See

§ 61-8-402(5), MCA (2011) (If the arrested person has previously refused to provide a

sample, then “the officer may apply for a search warrant to be issued pursuant to

46-5-224 to collect a sample of the person’s blood for testing.”) (emphasis added). An

arrested person’s prior refusal does not itself establish the necessary probable cause for a

warrant, but merely permits police to apply for a warrant, for which they must

demonstrate probable cause.        Here, there was a substantial basis for Judge Fagg’s

determination that probable cause existed to authorize a draw of Giacomini’s blood.

Under oath, Officer Weston informed Judge Fagg that Giacomini: (1) had driven the

wrong way down a one way-street, (2) had watery, bloodshot eyes, (3) smelled of

alcohol, (4) swayed and staggered, and (5) performed poorly on standard field sobriety

tests. Applying the totality of the circumstances test, Judge Fagg had an ample basis to


1
  The statute also authorizes officers to apply for a search warrant where the arrested person has
previously been charged or convicted of certain specified offenses, but these grounds are not at
issue in this case.

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believe that a probability existed that criminal activity (DUI) had occurred, and that

evidence of the crime would be found in Giacomini’s blood.

¶14    Giacomini cites the United States Supreme Court’s recent decision in Missouri v.

McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013), which held that the natural dissipation of

alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying

a warrantless blood draw in a DUI investigation. Giacomini argues that “[i]f dissipation

is insufficient for exigent circumstances, it is insufficient for probable cause” and that,

here, the warrant was based on “[t]he mere fact of alcohol dissipation.” However, the

record clearly demonstrates that the probable cause determination was not based solely

on alcohol dissipation in Giacomini’s blood stream.         Officer Weston’s mention of

potential alcohol dissipation conveyed the time-sensitive nature of the evidence collection

process and was no doubt a motivation for seeking a telephonic warrant, but this did not

negate the considerable evidence demonstrating probable cause that Giacomini had

driven under the influence of alcohol. This case does not involve a warrantless blood

draw based upon exigent circumstances.

       B.     Right of Privacy

¶15    “The right of individual privacy is essential to the well-being of a free society and

shall not be infringed without the showing of a compelling state interest.” Mont. Const.

art. II, § 10. A compelling state interest can be found where the State enforces its

criminal laws to protect other fundamental rights of its citizens. Even so, “the State may

not invade an individual’s privacy unless the procedural safeguards attached to the right



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to be free from unreasonable searches and seizures are met.” State v. Elison, 2000 MT

288, ¶ 53, 302 Mont. 228, 14 P.3d 456.

¶16    Although Giacomini expressly states he is not challenging the constitutionality of

the blood draw provisions of the statute, he argues that “forced blood draws for a DUI

without exceptional circumstances such as injuries or potential death from an accident

violate the Montana Constitution.”         This argument appears to challenge the

constitutionality of the revisions made by Senate Bill 42 that authorize applications for

blood draw search warrants in certain cases not involving injury or death. His argument

is premised on this Court’s caution that “we will not hesitate to hold that a blood test

taken without probable cause or exigent circumstances is unreasonable and an invasion of

a person’s right to individual privacy.” Collins, 232 Mont. at 83, 755 P.2d at 1379.

However, as noted above, Giacomini’s case does not involve a blood test taken without

probable cause, so his argument fails.

¶17    Giacomini also argues that “[a]llowing needles to be stuck in people without their

permission simply for being suspected of being under the influence is going too far” and

violates the right of privacy. He further contends that allowing law enforcement to draw

his blood based on “a 22 year old breath test refusal” is unreasonable and “too close to

the rack and pinion” to pass constitutional muster. He states that “[t]he central issue is

sufficient probable cause to overcome our Right to Privacy.”

¶18    Giacomini’s arguments do not allege that police exceeded the authority granted by

the statute to seek a blood-draw warrant or that police exceeded the scope of the warrant

in drawing his blood. Rather, Giacomini appears to be making an as-applied challenge to

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the authority granted by the statute as a violation of his right of privacy. As such, these

arguments necessarily implicate a constitutional challenge, which Giacomini has not

supported with proper briefing or relevant authority.       Neither has he addressed our

holding in Collins that “[w]e do not believe that the taking of a blood sample by trained

medical personnel is either harmful or offensive given the present state of medical

technology and blood testing techniques.          Millions of Americans submit to blood

sampling every day without ill effect.” 232 Mont. at 80-81, 755 P.2d at 1378. We

decline to address these arguments further and they are denied.

¶19 2. Did the District Court err by affirming the Municipal Court’s decision to deny
Giacomini’s “Request for Hearing” as untimely?

¶20    Section 46-13-101, MCA, provides in pertinent part:

       (1) Except for good cause shown, any defense, objection, or request that is
       capable of determination without trial of the general issue must be raised at
       or before the omnibus hearing unless otherwise provided by Title 46.

       (2) Failure of a party to raise defenses or objections or to make requests that
       must be made prior to trial, at the time set by the court, constitutes a waiver
       of the defense, objection, or request.

       (3) The court, for cause shown, may grant relief from any waiver provided
       by this section. . . .

Counsel “must be prepared to discuss” motions to suppress at the omnibus hearing.

Section 46-13-110(3)(h), MCA.       When a trial court denies a defendant’s motion to

suppress as untimely, this Court has “consistently upheld” that denial. Greywater, 282

Mont. at 36, 939 P.2d at 980 (citation omitted).

¶21    In his “Request for Hearing,” Giacomini characterized the “numerous attempts”

by YCDF personnel to draw his blood as “shocking,” and asked the court to review video

                                             11
footage of the process as “additional evidence to support our previously filed Motion to

Suppress.” The Municipal Court declined, holding that the video should have been

presented earlier.   The District Court likewise found that Giacomini’s “Request for

Hearing” was untimely and constituted an attempt to reargue the suppression issue.

¶22   On appeal, Giacomini does not dispute that he filed his “Request for Hearing” on

November 8, 2012, over three months after the omnibus hearing on July 17, 2012—the

statutory deadline. He maintains that any delay on his part “is understandable” but makes

no effort to establish that the video evidence was unavailable earlier or that there was

other good cause for the delay that would justify relief from the deadline. Under the

plain language of § 46-13-101, MCA, Giacomini’s “Request for Hearing” was untimely.

The District Court did not err in affirming the Municipal Court’s decision to deny

Giacomini’s motion.

¶23   Affirmed.


                                                /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER




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