                                        No.     96-081
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                              1996


STATE OF MONTANA,
              Plaintiff      and Appellant,
         v.
GREGORYS. STUECK,
              Defendant      and Respondent.



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


COUNSEL OF RECORD:
              For Appellant:
                      Hon. Joseph P. Mazurek, Attorney                   General,
                      Barbara C. Harris, Ass't Attorney                   General,
                      Helena, Montana
                     Mike Salvagni,  Gallatin County Attorney,
                     Jane Mersen, Deputy County Attorney,
                     Bozeman, Montana
              For Respondent:
                      Karl   P. Seel,     Attorney        at Law, Bozeman, Montana



                                              Submitted     on Briefs:        July   18, 1996
                                                              Decided:        December 9, 1996
Filed:
Justice          Karla     M. Gray delivered                  the Opinion            of the Court.


           The State         of     Montana        (State)         appeals          from      the   order     of     the
Eighteenth           Judicial          District         Court,          Gallatin         County,        suppressing
blood       alcohol        evidence          obtained       from Gregory              S. Stueck         (Greg).       We
affirm.
           The dispositive              issue     on appeal             is whether          the District          Court
erred       in concluding             that      Montana's         implied          consent      statute      applies
to a negligent             vehicular            assault       prosecution             so as to preclude              the
admissibility              of blood            sample evidence              forcibly          drawn after           Greg
refused          to submit         to a blood        alcohol            test.
           Shortly       before       midnight       on January             19, 1995, Montana Highway
Patrol        Officer        Joseph          Campbell         (Campbell)            was traveling            east     on
Interstate           90 near Belgrade,              Montana.             He observed           what appeared          to
be a large           cloud        of either       smoke or steam developing                         approximately
three-quarters               of     a mile        ahead of him in                  the      westbound       lanes     of
traffic.          As he approached                the scene,            Campbell         saw a vehicle        emerge
from       the    cloud;      the      vehicle       itself         was trailing               a huge cloud           of
steam       and traveling               west       toward         the     Belgrade           interchange.             It
appeared          to Campbell           that      an accident            had just           occurred.
            As Campbell             approached          the       accident          site,      he saw a pickup
truck       in    the median,            a man staggering                 near       the pickup          and debris
from the accident                  littering        the median and the highway.                           The dazed
man, Eric          W. Troth          (Troth),       was the driver                 of the disabled            pickup
in the median;               he had sustained                 a substantial              bump on the back of
his     head.        Campbell         theorized           that     the vehicle              he had seen emerge

                                                              2
from        the         vaporous            cloud         was          responsible                for          the         accident.
Observing              a "fluid           trail"         heading          west         on the           highway             from       the
point       of         impact,      Campbell             put      Troth         in     his       patrol          car        and they
began following                   the fluid          trail        toward          the Belgrade                 interchange.
         Campbell              and Troth           followed          the fluid           trail          until         it    led them
off     the highway               and down several                     local         roads;       it      then        tapered          off
to a point              where Campbell was unable                          to detect             its      direction.                 With
an injured                man in          his      car       and debris                from       the          accident             still
littering              the      highway,           Campbell            decided         that         his        best        course           of
action       was to return                 with      Troth         to the accident                      scene.             He did           so
and immediately                   began clearing                  the highway                 and investigating                        the
accident.                 After         a wrecker              arrived          and lifted                 Troth's            pickup,
Campbell           detected             a powder          blue         paint         transfer             on Troth's               dark-
colored           pickup          which      appeared             to     have been left                        by the         vehicle
responsible               for     the accident.
         Officer             Dennis DeLaittre                   (DeLaittre)            responded               to the accident
scene        five         to      ten     minutes            after        Campbell              and Troth's                   return.
DeLaittre              began following               the fluid            trail         down and off                  the highway
and, eventually,                   to Amsterdam Road.                      DeLaittre                could        see where the
vehicle           leaving          the       fluid        trail          had made a right                         turn         off          of
Amsterdam               Road onto           Thorpe           Road.             The fluid               trail          became more
infrequent,               often     was in the wrong lane and ultimately                                             consisted              of
an accumulation                    of      fluids         deposited               from        the       vehicle             after           it
either           hit      a bump or                braked         for     a corner.                     About          that         time,
Campbell           radioed         DeLaittre             that     a baby blue paint                       transfer           had been
found       on Troth's             pickup.

                                                                     3
          DeLaittre         continued              down Thorpe Road.                      When the road                    surface
changed to gravel,                     he followed             a single          set of tire                tracks     visible
in      the    early      morning              frost       to where            a vehicle           appeared            to        have
skidded         on the           roadway,              backed        up and pulled                into         a driveway.
DeLaittre         observed              a "baby blue                Ford pickup            truck        with         extensive
front-end         damage on the driver's                            side"      in the driveway,                 and radioed
Campbell         that     he had located                   the vehicle.
          Campbell         met          DeLaittre              at        the     driveway          entrance                to      the
residence          on Thorpe                  Road where                the    baby      blue      Ford         pickup             was
parked.           Before         approaching               the          house,     the    officers             radioed             the
dispatch         office          for     a registration                   check on the pickup.                        Dispatch
called        the registered                   owner,      Don Stueck,             who reported               that         his     son
Greg had been using                      the pickup;                he also       provided         Greg's            telephone
number.
          The     sheriff's              office          telephoned              Greg's      home in             the            early
morning         hours     of January              20, 1995, and reached                     Greg's            wife,         Kristy
Stueck         (Kristy)                 She was asked                    to    go outside              to     talk         to      two
officers         who were parked                  in her yard.                 Kristy     complied            and Campbell
and DeLaittre             left         their      patrol        cars and met her at the front                                   door.
After         explaining           to         Kristy       that          an accident             had        occurred,              the
officers         asked her               if     she had been driving                       or     if        Greg had been
driving         and if     Greg had been drinking.                               When she answered                   that        Greg
had been driving                 the truck,             they        asked her to have Greg come to the
door.         Kristy      responded              that      he was sleeping                and she was unable                         to
wake him.              The officers               returned              to their        patrol         cars      and,           after
Kristy's          second          attempt          to      awaken him,              Greg         came to             the        door.

                                                                    4
According        to Campbell,                  Greg motioned              the officers             to the house and
eventually        called            them inside.
          Campbell       could        smell          the strong          odor of alcohol                 on Greg at the
outset      of the        interview              and observed               that       Greg started              "fumbling
and trying         to pull           his       boots         on which        took       quite       a bit        of     effort
and      concentration                     .    .     .'I       Greg      initially            told       Campbell          and
DeLaittre        that         his    friend          "Bill"          had been driving                  the pickup          that
night,      but that           he did not know Bill's                           last     name.          Greg then          left
the      house    abruptly            and walked                outside          to    the     truck       to     find      his
registration            and proof              of insurance;              the officers             followed.             After
further        questioning,             Greg admitted                    that      he had been driving                      the
truck      and had fallen              asleep           at the wheel.                  When he felt             the impact
of the accident,                Greg panicked                  and drove           away from the scene.
          Greg was arrested                    for      three        misdemeanor             traffic        violations,
including        negligent            vehicular               assault,          and transported                 to Bozeman
Deaconess Hospital.                    The officers                  did not advise               Greg of the terms
of the implied                consent          statute,          but did request                  a blood        sample to
determine        his     blood        alcohol               content.        When Greg refused                    to give          a
blood      sample,       it     was taken              from him forcibly.
          The State           charged          Greg in Gallatin                  County Justice                 Court     with
negligent        vehicular            assault,                failure       to     stop      at    the      scene of             an
injury      accident           and failure                  to give      immediate           notice       of an injury
accident.         Greg moved to suppress                             the evidence            seized      from his Ford
pickup      and his           residence,             as well           as 'I [‘cl he blood             sample forcibly
withdrawn              . . at Bozeman Deaconess Hospital,"                                      and to dismiss              the
charges.         Following             a hearing,                the      Justice         Court         suppressed          the

                                                                 5
evidence         resulting         from the forced                       blood drawing,              but denied Greg's
motion        to dismiss.            The State             appealed,                and Greg cross-appealed,                     to
the District            Court.
         The District            Court        granted            Greg's            motion      to suppress            the blood
sample        evidence          and denied                 the        rest         of   his     motions.            The State
appeals        from the District                    Court's              suppression               of the blood          sample
evidence.
         Did the District     Court err in concluding   that Montana's
         implied   consent law applies      to a negligent   vehicular
         assault  prosecution    so as to preclude the admissibility
         of blood    sample evidence     forcibly   drawn after     Greg
         refused to submit to a blood alcohol test?
         In      granting          Greg's           motion               to        suppress         the       blood      sample
evidence,          the District               Court         rejected               the State's            contention         that
State     v.     Thompson (1984),                     207 Mont.                433,      674 P.2d 1094,               rendered
§ 61-8-402,            MCA, inapplicable                         to any offense                    other       than    driving
under      the     influence            of      alcohol               (DUI).            The court             distinguished
Thomuson,          concluding                that          §     61-8-402,               MCA, Montana's                 implied
consent         statute,           applies            to        the       charge         of     negligent           vehicular
assault         and,       as    a    result,               that          the       blood          sample      evidence          is
inadmissible            because          it     was taken                     in    violation           of    the     statute.
Where a district                court         grants            a motion            to suppress              based on legal
conclusions,           we review              those        conclusions                  to determine           whether       they
are     correct.           State      v.       Williams                  (1995),        273 Mont.            459,     462,    904
P.2d 1019,          1021 (citation                  omitted).
         We begin            our      analysis                  by       focusing             on    §      61-8-402,         MCA,
Montana's           implied          consent                   statute.                 Section           61-8-402,          MCA,
provides,          in pertinent               part:

                                                                     6
                  (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,    subject   to
          the provisions         of 61-8-401,     to a test or tests    of the
          person's       blood,    breath,   or urine    for the purpose of
          determining       any measured amount or detected       presence of
          alcohol      or drugs in the person's        body if arrested    bv a
          peace officer       for drivins    or for beinq in actual ohvsical
          control       of a vehicle        while   under the influence      of
          alcohol,      drugs, or a combination       of the two. .
                          .

                 (3)     If a driver       under arrest     refuses  upon the
          request of a peace officer          to submit to a test or tests
          designated       by the arresting       officer     as provided    in
          subsection      (l), a test may not be siven, but the officer
          shall,   on behalf of the department,         immediately  seize the
          person's    driver's    license.    . . .     [Emphasis added.]
In     interpreting             a statute,       we look      first      to      the    language          used
therein      by the legislature.                 State     v. Gould      (1995),        273 Mont.         207,
219, 902 P.2d 532, 540.                   "Where the language            is plain,           unambiguous,
direct,      and certain,            the statute      speaks for        itself          .       .'I     Gould,
902 P.2d at 540 (citation                     omitted).
          According           to the plain      and unambiguous          language           used,      § 61-8-
402(l),       MCA, applies               when the     defendant         has      been       arrested        for
committing          the DUI offense            set forth     in § 61-g-401,             MCA.           In such
an event,          a defendant's          refusal     to submit        to a blood            alcohol      test
mandates          that    the     test    "may not be given."              Section           61-8-402(3),
MCA.       Moreover,           blood     samples     drawn in violation                of     the      implied
consent       statute          are   inadmissible         as evidence         in prosecutions               for
DUI.       Thompson,           674 P.2d at 1095 (citing               State      v. Mangels            (1975),
166 Mont.          190,       531 P.2d 1313).
          Here,     Greg was not arrested             for violating           § 61-8-401,             MCA, the
statute      defining           the offense      of DUI.     He was arrested,                however,       for

                                                      7
committing                the misdemeanor                       offense          of negligent          vehicular            assault
in violation                of § 45-5-205,                      MCA. A person                 commits that            offense      if
he or she (1) operates                              a vehicle               in a negligent            manner;         and (2) is
driving           while      under the influence                            of alcohol            or drugs,         "as provided
for       in 61-8-401(l)                  [;I"          and (3) his              or her      conduct         is     the cause of
bodily           injury      to another.                    Section             45-5-205(l),          MCA. Thus,             the DUI
offense           set forth              in § 61-L-401,                 MCA, is a specific                   element        of--and
subsumed in--the                    negligent               vehicular              assault        offense.          As a result,
it    is     clear         that,          in the language                       of § 61-8-402(l),                 MCA, Greg was
"arrested               by a peace officer                            for       driving       or for     being         in     actual
physical            control          of a vehicle                  while         under the influence                  of alcohol
.     .            I,      Consequently,                    we conclude                   that      § 61-8-402(3),              MCA,
prohibited              the State                from forcibly                  giving      the blood        test     after     Greg
refused            to     submit           to      it     and the blood                    sample     evidence          drawn      in
violation               of the           statute           is    inadmissible.                    Thomoson,         674 P.2d at
1095.
           The State               correctly              points            out that,            in Thomuson,         we held           §
61-8-402,               MCA, inapplicable                        to a negligent                   homicide        prosecution.
It        contends,          therefore,                   that        Thompson renders                  § 61-E-402,             MCA,
inapplicable                to      the          negligent             vehicular            assault      charge         at     issue
here        and does not                  preclude              the     admissibility               of the blood              sample
taken            without           Greg's               consent.                The       State     reads         Thomoson        too
broadly.
            In      Thomuson,                the          defendant               was       charged          with      negligent
homicide,               which       is     statutorily                 defined            as negligently             causing      the
death        of another              human being.                      Section            45-5-104,     MCA.          He did      not

                                                                            8
consent       to the taking               of a blood               sample for purposes                    of determining
the     alcohol           content             in    his        blood;        nonetheless,                the      sample      was
taken.        The defendant                   moved for            suppression            of the blood             sample on
the basis          that     it     had been drawn against                           his        will      in violation          of
5 61-8-402,           MCA, and,                therefore,               was inadmissible.                      The district
court      refused         to suppress                the evidence,                it     was admitted              at trial
and the defendant                  was convicted                   of negligent                homicide.           Thomoson,
674 P.2d at 1095.                        The issue             before        us on appeal                was whether          the
prohibition           against            nonconsensual                  extractions             of blood          samples      in
§ 61-8-402,           MCA, applied                   to prosecutions                    for     negligent          homicide.
If    the prohibition               applied,              the blood           sample drawn in violation                        of
the      statute          was inadmissible                       and      should         have          been     suppressed.
Thomoson,          674 P.2d at 1095.
         We ultimately               concluded,                 based on three                 considerations,             that
§ 61-g-402,          MCA, did not apply                          to negligent                 homicide         convictions.
Thornson,           674 P.2d              at        1096.           First,        and most              importantly,           we
focused          on the legislative                       intent        as reflected              in the language              of
the statute.               Highlighting                the "if           arrested         by a peace officer                  for
DUI" language,              we concluded                  that      the protections                    afforded      by the §
61-E-402,          MCA, prohibition                   against           nonconsensual                 blood drawings          are
"not      engaged          until          there           is       an arrest            for       driving          under      the
influence."                      Thomuson,                674 P.2d           at   1096.               Next,     we reviewed
decisions           from         other         jurisdictions                 having           implied          consent      laws
similar          to Montana's            and determined                   that    "the better                 reasoned     cases
hold      that     the statute                does not apply                 to negligent               homicide       cases."
Thompson,          674 P.2d              at        1096-97         (citations           omitted).               Finally,       we

                                                                    9
addressed           the gravity           of the charged             offense       and opined               that,       where
a death        had been caused by a drinking                             driver,         a driver's                  license
suspension           was an insufficient                  penalty       for      refusing          to submit              to a
chemical           analysis.            Thomuson,         674 P.2d at 1097.
         Applying           the      three        Thomuson           considerations                to         this        case
involving           an arrest            for    negligent         vehicular            assault,             rather        than
negligent            homicide,            mandates          a     different            result           and          clearly
indicates           that     Thompson is              distinguishable.                   There,         we began by
applying           the plain        meaning           of the       "arrest       for     DUI"         language            in     5
61-8-402,            MCA,      to        the      negligent            homicide           charge             at        issue.
Thomoson,           674 P.2d         at        1095-96.          As noted         above,          the        offense            of
negligent           homicide        is defined            as negligently               causing          the death               of
another        human being.                     See    § 45-5-104,              MCA.        Nothin~g              in      that
definition           relates        in any way to operating                        a vehicle             while          under
the     influence          of alcohol.                Accordingly,            we properly               concluded               in
Thomoson           that      the     legislature             did       not      intend          the         protections
afforded           by § 61-8-402,               MCA, to apply            to an arrest                 for     negligent
homicide           because        the      statutory        language           was inapplicable                        "until
there     is an arrest             for     driving        under the influence."                       Thompson,            674
P.2d at        1096.         Here,        as discussed             above,       the negligent                 vehicular
assault       charge        includes,           as a specific          element,          driving            while       under
the     influence          of alcohol            as set      forth      in      5 61-a-401,             MCA.            See§
45-5-205(l),              MCA. Thus here,               unlike       in Thomuson, there                     has been an
arrest       for     DUI and the protections                     afforded        by 5 61-8-402,                   MCA, are
engaged.
         Having            concluded,             under          the         statutory            interpretation

                                                            10
consideration               which        necessarily               was          our         primary         concern           in
Thomoson, that              § 61-8-402,           MCA, applies                 to an arrest             for      negligent
vehicular         assault,          the remaining             Thomoson criteria                       are of limited
significance.                     With         regard         to      the              "other         jurisdictions"
consideration              from Thompson,               the State              cites         to State           V. Woolery
(Idaho       1989),        775 P.2d 1210,            and State                 v. Armenta            (Or.App.         1985),
702 P.2d 1113,              in support           of its      position            that        § 61-8-402,            MCA, is
not     applicable           to        non-DUI      offenses.                   Those         cases        are      readily
distinguishable              from the case presently                            before        us and,           therefore,
they      do not support               the State's           position            here.
          In Woolerv,            the     Idaho     Supreme Court's                      primary         focus       was not
whether       the      statute         applied      to the offense                      charged.           Rather,           the
Idaho       court       focused          on the         absence           of          any     statutory           language
prohibiting            a nonconsensual               blood         test         in     the      event      a requested
test    was refused.              Woolerv,         775 P.2d at 1214.                        The court           ultimately
determined          that     no statutory            right         to refuse             had been created               and,
therefore,          compliance--or               lack      thereof--with                     the     implied        consent
statute         was irrelevant              to     the       admissibility                    of     the      blood     test
evidence         so long          as the         constitutional                  requisites             for       a lawful
search       and       seizure          were     met.           Woolerv,               775      P.2d       at      1214-15.
Woolery has no application                       here where § 61-8-402(3),                            MCA, expressly
provides        that       a test       may not be given                  if     it     has been refused                and,
as a result,            our cases hold              that      a nonconsensual                       drawing        of blood
following        a 5 61-8-402,             MCA, refusal              to submit               to the test            renders
the     blood       test     evidence          inadmissible.                    See,        e.q.,       Thomuson,            674
P.2d at 1095.

                                                           11
          In Armenta,             the defendant              was charged with                    DUI and assault                  II

following          an accident                 which      resulted          in      injuries.              Armenta,             702
P.2d at         1113.        The trial             court       suppressed              blood        test        evidence          in
connection         with       both       charges        as a consequence                 of an invalid                   consent
under      the implied             consent         statute,        and the state                  appealed           only       the
inadmissibility                   of     the      evidence         vis-a-vis               the       assault             charge.
Annenta,         702 P.2d at 1114.                     The Oregon Court                 of Appeals              applied         the
statutory         language             specifically           rendering             the statute              inapplicable
to    non-DUI           offenses,               and     concluded             that       the         blood         test         was
admissible             as    to        the      assault        charge            assuming            compliance                with
constitutional               requirements.                    Armenta,            702 P.2d           at        1114.           Thus
Armenta,         like       Thomoson,             limited       the     applicability                   of the           implied
consent         statute           to     a DUI charge.                     Like        Thomuson,             and       for      the
reasons          set      forth         above,         Armenta         is        distinguishable                   from         the
present         case        involving             an arrest           for        the    offense            of      negligent
vehicular         assault,              which      includes        DUI as a specific                       element,             and
which,      therefore,             constitutes              an arrest         for      DUI pursuant              to § 61-8-
402(l),         MCA.
          The     final        Thomuson             consideration                 was the            gravity             of     the
charged         offense       and we observed,                 in that           regard,         that      the negligent
homicide         offense           at     issue        involved         the       death        of       a human being.
Thompson, 674 P.2d at 1097.                             Indeed,       negligent            homicide             is a felony
offense         punishable              by imprisonment               in    the state               prison         for        up to
ten     years      and a fine                of    up to       $50,000,             or both.               &        §§ 45-2-
lOl(22)         and 455-104(3),                    MCA.        In the         case presently                    before          us,
however,         negligent             vehicular        assault         is a misdemeanor                     offense           with

                                                              12
maximum punishments                  of one year         imprisonment           in the county          jail    and
a fine      of    $1,000,         or both.          &      §§ 45-2-lOl(41)                and 45-5-205(2),
MCA.      Thus,      while       we agree with            the State       that       this      consideration
is   of     very           limited       significance            in     light        of       the    paramount
importance            of       statutory        interpretation                  in     this         case,      its
application          here further          distinguishes              Thomuson and weighs in favor
of our conclusion                 that     5 61-E-402,          MCA, applies              to an arrest         for
negligent         vehicular          assault.
         We hold that           the District            Court   did not err          in concluding            that
§    61-S-402,             MCA,      applies        to     a    negligent            vehicular          assault
prosecution           so as to           preclude        the    admissibility               of blood        sample
evidence         drawn in violation             of the statute             and also           did not err        in
suppressing           that     evidence.
         Affirmed.


We concur:


              Chief        Justice




                  Justices

                                                          13
Justice       Karla         M. Gray,         specially             concurring.


         While        the      Court's        opinion             adequately             addresses          the      matters
raised       in Justice            Erdmann's         dissenting                opinion,         I write        separately
to add additional                  comments about several                        of the arguments                  contained
therein.
          First,          the dissent        states          that        the Court          cites      no cases which
support        its        position.          In this          regard,            I observe           only     that        it      is
not necessary               for    this     Court     to cite             "other         jurisdiction"              cases in
support       of a straightforward                    analysis                of Montana statutes                   and case
law such as the Court                       has conducted                 here.
         Next,        the dissent           quotes       from Zielke,                   a Wisconsin         case relied
on by        the      State         in    addition           to     the         Armenta         and Woolerv               cases
discussed            in the Court's             opinion.                 The Wisconsin               implied         consent
statute       at issue            in Zielke,        however--like                  the Idaho implied                 consent
statute       at issue            in Woolerv--did                 not         contain      language         prohibiting
a nonconsensual                   blood      test       in        the         event      a requested               test         was
refused.             See Zielke,             403 N.W.2d                  at     429.       Thus,       like         Woolerv,
Zielke       is not         applicable         here where 5 61-8-402(3),                               MCA, expressly
provides           that     a test        "may not be given"                    once it         has been refused                 by
the     arrestee.              As discussed             in        the         Court's      opinion,           it     is        this
specific       portion            of Montana's          implied               consent      statute       which renders
inadmissible               evidence         resulting              from        a nonconsensual                drawing             of
blood      following              a 5 61-8-402,              MCA, refusal                to submit          to the test
and which            negates          the    propriety              of        addressing         the      issue       of        the
constitutionality                   of the seizure                of Greg's             blood    which        the dissent

                                                              14
would        reach     in this      case.
         Finally,         while     I do not disagree               that        the Court's            resolution
of    this        case may appear           to    allow        defendants              in   alcohol      or drug-
related           accidents      to use the implied               consent        statute       as a "shield,"
I    disagree          with   the     dissent's           view     that         this        Court      can   simply
ignore        the     statutory       language       in        order      to produce            a politically
expedient           result.       The State's        "remedy"           lies      with       the legislature,

which        is    free    to amend the implied                 consent         statute        as other       state
legislatures              have done,        not with       this        Court.                   ,-~,




                                                          15
Justice         Charles                E. Erdmann                dissenting.

          I respectfully                        dissent          from        the majority's                     conclusion                  that         the

implied           consent                law,        §         61-E-402,                MCA,        apples            to       a       negligent
vehicular             assault             prosecution.                       The majority's                      opinion              allows             the

implied         consent                law to be used                  as a shield                 by defendants                      in     alcohol

Or      drug-related                       accidents                   and         allows               them        to        prevent                    the

introduction                      of       otherwise                   admissible                       evidence              of            chemical

impairment.                  Further,              although             not        reached          by the         majority,                     I would

conclude              that         a warrantless                       search             was      appropriate                    under                these

circumstances                     and      that          the     seizure             of        blood       did      not       violate                   Greg

Stueck's           right           of     privacy.                   I would            reverse           the      District                 Court          on

all     three         of         these      issues             and remand                 the      matter          for       trial.

          The District                    Court          granted         Greg's            motion          to suppress                     the         blood

sample       evidence                  by finding              that      State            v.     Thompson            (1984),               207 Mont.

433,       674        P.2d          1094,          does          not     apply             when         a charge              of       negligent

vehicular              assault             is      brought.               In       Thompson,               this           Court        held             that

the       implied                consent           law         did     not         apply           to     a negligent                       homicide

charge.            In reaching                    that         conclusion,                 the     Court          first        reviewed                   the

language          of        the        implied           consent         law,           and then           employed            a three-step

analysis              to     determine               whether             that             law      should           apply             to     charges

other       than           DUI.

          Given              the         clear            language                 of          5    61-E-402,                 MCA,                it       is

questionable                     whether            the          analysis               need        go      any           further                than           a

reading          of        the     statute.               This        basic        statutory              construction                      analysis




                                                                             I.6
is   the      first        of    the         Thomnson             criteria.              Section         61-E-402,             MCA,
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,       subject     to
         the provisions            of 61-8-401,     to a test       or tests       of the
         person's        blood,      breath,    or urine     for     the purpose         of
         determining         any measured      amount or detected          presence      of
         alcohol      or drugs in the person's             body if arrested           by a
         peace officer          for driving     or for beinq in actual          physical
         control       of     a vehicle       while    under     the    influence        of
         alcohol,       drugs,      or a combination      of the two.

(Emphasis         added.)             Section          61-e-401,              MCA, referenced            in     the        implied
consent       statute,           is     the         statute         that       prohibits          DUI.        By the          clear

language         of      the     statute              itself,           it     is    applicable          only         to      cases

involving          an arrest           for      DUI.            As this        Court       recently      noted        in      State

v.   Gould       (1995),         273 Mont.               207,       902 P.2d           532:

                   In interpreting             a statute,       we first      look    to the
         plain       meaning       of its      words.      Christensen, 877 P.2d at 469
          (citation        omitted).           If the legislative          intent     can be
         ascertained          from the plain          meaning of the words used, no
         further       interpretation            is required     and we will      not resort
         to legislative             history.        Clarke v.Massey (1995),       1271 Mont.
         4121,       897 P.Zd 1085, 1088.               Where the language         is plain,
         unambiguous,           direct,       and certain,      the statute       speaks for
         itself       and there        is no need to resort          to extrinsic       means
         of interpretation.                  Christensen, 877 P.2d at 469 (citation
         omitted).          In addition,

                       [i]n  the construction    of a statute,        the office    of
                      the judge is simply     to ascertain     and declare      what is
                      in terms or in substance       contained     therein,      not to
                      insert    what has been omitted               .

         Section          l-2-101,            MCA.

Gould,        902 P.Zd          at     540.

         As      correctly               recognized                  by        the       majority,            the           plain,

unambiguous              language              of        5      61-E-402,              MCA,     makes         the          statute


                                                                   17
applicable               only          where           there            has        been        an arrest                      for      DUI.             As Greg
was not           arrested               for        DUI,          the      only          logical               conclusion                       is    that         the

implied           consent                statute                 does      not          apply.                The        majority,                    however,

holds           that          §     61-E-402,                    MCA,        applies                to        a     charge                of         negligent

vehicular               assault,               and          in     doing           so,        concludes                  that          an arrest                   for
negligent               vehicular               homicide                 constitutes                      an arrest                   for        DUI.

          While          the        majority                is    correct               in noting                 that         driving               under         the

influence                of        alcohol             or         drugs            is         one        of        the          elements                    of     the

negligent                homicide               statute,                   that          does            not        make              an        arrest             for

negligent               vehicular                   assault              an arrest                  for           DUI.              The        Legislature

could       easily                have       extended                the        provisions                    of     the            implied             consent

statute           to both            vehicular                   homicide             and negligent                       vehicular                   assault,

but     has        chosen              not      to          do so.               In      concluding                      that          an arrest                   for

negligent               vehicular                   assault              constitutes                      an        arrest                for         DUI,         the
majority               has        inserted             provisions                     into       § 61-B-402,                         MCA,            that         were

omitted           by      the          Legislature.                        That          is      not          the        proper                function              of

this       Court.

          As       noted,              the          first           of        the         Thomuson                  criteria                    deals             with

legislative                   intent         and statutory                       interpretation,                              which          is discussed

above.            As the               plain          language                of        the      statute                 is         clear,            I do not

believe           that            further           analysis               is       necessary.                      However,                   even          if    the

second          and third                Thompson                 criteria               are     utilized,                     the        result             is    the

same.
           In     Thompson,                  this       Court            stated:

                  We find    that                            Section     61-E-402                          does not apply                               to
           negligent     homicide                             prosecutions.                               This  conclusion                              is

                                                                                18
based on three              considerations.            First      we consider      the
legislative           intent.        "Legislative         intent     must first      be
determined         from the plain           meaning of the words used; and
if     the     language         is   plain,       unambiguous,        direct,      and
certain,         the statute          speaks       for   itself."         Gist v. Segna
 (Mont.      1981),       622 P.Zd 1028 at 1029, 38 St.Rep.                    150 at
152, citing          Dunphy v. AnacondaCo. (1968),              151 Mont.     76, 438
P.2d 660.         The language         of the statute          and an examination
of the statutory               scheme of Title          61, Chapter       8, part      4
plainly       show that application               of the implied        consent    law
to      negligent           homicide        cases      was       not   within      the
legislature's            contemplation.            The operative       language      of
Section       61-E-402        reads,

        "Any person       who operates          a motor vehicle         upon
        the public        highways       of this        state     shall     be
        deemed to have given consent,                 subjectto theprovisions
        of 61-8-401, to a chemical               test    of his      blood,
        breath,        or     urine        for      the      purpose        of
        determining       the alcohol         content     of his blood if
        awesled by a peace ofJicerfor driving OYin actual physical control of
        n motor vehicle while under the infruence of alcohol. II (emphasis
        supplied)

The italicized         passage       above makes it           clear     that   the
protections      afforded       there are not engaged until              there is
an arrest      for driving         under the influence.                (But,   see
State v. Campbell (Mont.      1980) , 615 P.2d 190, 37 St.Rep.               1337,
where we held that an arrest               is not always a prerequisite
to administration          of a blood alcohol          test.)       Not only is
the section      specifically         premised    on such an arrest,           but
it    is made subject           to the section          of the code which
outlines     the offense         of driving      under the influence             of
alcohol     or drugs.            . . This      Court    does not have the
power to remove or ignore               language     in a statute.

         The second       consideration          is how similar            implied
consent           laws    have       been       interpreted                   other
jurisdictions.          . .      [Wle feel the better          reaszed        cases
hold       that     the  statute      does     not     apply     to     negligent
homicide         cases.     Relying     on the plain          wording       of the
statute,         these   cases     held    that      applying       the    implied
consent        laws to negligent        homicide      prosecutions        was not
what the legislature             had intended.

         The third     consideration       also weighed heavily            on the
courts       deciding       the    cases    cited       immediately        above;
suspension         of    the     driver's       license       is    simply      an
insufficient        penalty     for refusing       to submit     to a chemical

                                          19
           analysis       when there         has been a death             caused       by the
           drinking      driver.      The gravity        of the crime heightens             the
           importance        of the       blood     sample,     and it        appears       the
           legislature        felt    the administrative           remedy was simply
           inappropriate.           The decision        to modify      the scope of the
           implied        consent        law     properly        rests        within        the
           legislature's         power.      It is not within        our power to read
           into     a statute      more than is found there,                 as appellant
           would      have us do.            Therefore,       we hold       that      Section
           61-8-402      does not apply to suspects            in negligent          homicide
           prosecutions.

Thompson,            674 P.2d              at         1096-97            (citations              omitted).

           The Court's              discussion                  of the          first          Thompson           criteria           provides
additional              support           for          the     conclusion                that      the         Legislature               did         not

intend        the       implied           consent               law      to apply           to     charges             other        than            DUI.

The      protection              afforded                by the            implied             consent           law      simply              is     not

triggered            until          there             has      been       an arrest               for      DLJI.          In     this              case,
there       was no arrest                   for         DUI.

          After         reaching                its      conclusion                that          the      Legislature                intended

that       an       arrest          for          negligent                vehicular                assault              constitutes                    an

arrest        for     DUI,       the       majority               then       determines                 that      the     remaining                  two

Thompson             criteria              are          of       limited                significance.                      This           is         not

surprising              since,            after          attempting                to      distinguish                  the      cases              from

other         jurisdictions                       which               support            the       State's              position,                    the

majority            can      cite         no cases               which          support           its      position.                 State             v.

Woolery           (Idaho        19891,            775 P.2d               1210;      State         v.     Armenta             (Or.       Ct.         App.

1985),        702 P.2d              1113;         State          v.      Zielke           (Wis.         1987),         403 N.W.2d                   427.

           The      third           Thompson                  criteria            addresses                the         gravity            of         the

crime.            The       majority                  notes       that          vehicular               homicide              involves               the

death       of      an individual                      and is            a felony,              while      negligent                vehicular


                                                                           20
assault               is          merely               a     misdemeanor.                           While                conceding               that             this
criteria               is     of very                 limited             significance,                      the         majority          relies             on it
for     further               support                 of     its        conclusion                that            5 61-8-402,              MCA, applies

to     an arrest                    for         negligent                 vehicular                assault.                     The      Thomuson                 case

did     not       make any distinction                                      between              felonies                and misdemeanors                          and

that       is     a troublesome                             distinction                     to    create.                      Further,           it         cannot
be disputed                   that             negligent                vehicular                assault            is        a serious           crime            for

which           the         mere          sanction                 of    having          a license                   temporarily                  suspended
is     an insufficient                            penalty.

           The             negligent                   vehicular                   assault               statute                 requires               that             a
person:               (1)          operate                 a vehicle               in        a negligent~                      manner;            (2)         while

driving           under              the         influence                 of     alcohol               or        drugs;          and that              (3)        his

or     her       conduct                  is     the        cause          of     bodily            injury               to     another.                Section

45-5-205,                   MCA.               Under         the         majority's                rationale,                    if     the      victim              in

this       case             would             have         died,          the     implied               consent                law     would           not        have

applied,                   but           if       the         victim              were            only            injured,                seriously                  or

otherwise,                   it      would             apply.              Such         a judicially                       created            distinction

is      not           warranted                       and           places             an        unreasonable                         burden            on         law

enforcement                       officers             who investigate                           accidents                involving              alcohol             or

drugs.

           Whether                 applying                 the         basic      rules           of    statutory                    interpretation,

or      utilizing                         the          Thompson                  criteria,                   it          is       clear           that             the

Legislature                        did          not         intend              that         an     individual                        involved               in      an

alcohol           or drug-related                               traffic            accident              be able                to use the              implied

consent               law         as a shield                   to prevent                  evidence                of        chemical         impairment


                                                                                   21
to     be     introduced                at        trial.            As        noted             by      the        Wisconsin                  Court           in
Zielke:

                    The implied       consent   law is an important          weapon in
            the battle       against    drunk driving    in this    State.      Neither
            the law, its history          or common sense allows       this    court    to
            countenance       its use as a shield      by the defense       to prevent
            constitutionally         obtained   evidence   frombeing       admitted     at
            trial.

Zielke,           403 N.W.Zd                 at      434.

            While     not        addressed                 by the majority,                          I would             conclude              that      the
seizure           of blood             in     this         case     was a reasonable                               seizure                and did        not

violate           Greg's         privacy             interests.                 By the               time     the         officers              reached
Greg's          residence,                  approximately                     one      hour           and      twenty-five                      minutes

had passed            since            the        accident.               The additional                           time         in        obtaining                a
search          warrant           in        the      middle         of        the      night            would             have            resulted            in

further           dissipation                of Greg's              blood           alcohol             content                and the          loss          of

valuable            evidence.                The means and procedures                                       employed                 in     taking       the

blood        were         reasonable.                      Schmerber            v.         California                     (1966),             384 U.S.

757.

          While       this        Court            has recognized                     that           Montana             has a broad                  right

of privacy            in     Article               II,      Section            10,         of    the        Montana              Constitution,

the     right        of     privacy               contained              in     that            provision                 is     to        be weighed

against           any applicable                     state        interest.                     State         v.        Brown             (1988),        232

Mont.        1,     755      P.2d            1364;          State         ex        rel.         Zander             v.         District               Court

(1979),           180 Mont.             548,         591 P.2d            656.          Here,            the        State's                interest            is

to      enforce            the         criminal               and         traffic                    laws          which              protect            all

citizens,             and          specifically                      in         this             case,             to          apprehend                 and

appropriately                punish               the       person            who rear-ended                         the         Troth          vehicle

                                                                          22
and then     left          the     scene    of   an injury      accident.         I would      find      these
interests      to          be     compelling      and      outweigh      Greg's     right     of      privacy

associated          with         his   blood.

       For   the       foregoing           reasons        I would     reverse     the   District         Court

and remand          this         matter    for   trial.




                                                                       Justice




                                                          23
Chief       Justice         J.     A.   Turnage,          dissenting:
        I    concur         with        the    dissenting            opinion      of   Justice          Erdmann.            I

write       further         and in        addition         thereto.

        The       correct           decision         in     this       case     requires         an     analysis           of

three       separate             statutes.             The         majority      has       failed        to      analyze

correctly          these         operative           statutes           which    are       in   their         essential

parts       set    forth         as follows:

                61-s-401.     (1) It     is unlawful       and punishable        as
        provided      in 61-S-714     and 61-f-723      [penalty    for driving
        under    the influence      of alcohol]      for any person       who is
        under the influence        of:
                (a) alcohol      to drive     or be in actual           physical
        control     of a vehicle    upon the ways of this        state   open to
        the public;

                   i3i   '"Under the influence"                  means     that as a result            of
        taking       into     the body alcohol,                drugs,      or any combination
        thereof,         a person's          ability         to safely          operate       a motor
        vehicle        has been diminished.
                 (4)      Upon the trial             of any civil           or criminal         action
        or proceeding             arising       out of acts alleged                   to have been
        committed          by any person              driving       or in actual             physical
        control         of     a vehicle           while        under       the      influence         of
        alcohol,         the concentration                of alcohol          in the person            at
        the time alleged,                as shown by analysis                    of the person's
        blood,     urine,        or breath,         shall      give rise to the following
        inferences:
                 (a)      If there was at that time an alcohol                            concentra-
        tion    of 0.05 or less,              it may be inferred                  that the person
        was not under the influence                        of alcohol.
                 (b)      If there was at that time                    an alcohol         concentra-
        tion     in excess           of 0.05 but less                 than 0.10,           that    fact
        shall     not give rise            to any inference               that the person was
        or was not under the influence                           of alcohol          but such fact
        may     be considered               with       other       competent           evidence        in
        determining           the guilt        or innocence             of the person.
                 (c)      If there was at that time an alcohol                            concentra-
        tion    of 0.10 or more,              it may be inferred                  that the person
        was under           the influence            of alcohol.              The inference            is
        rebuttable.
                 (5)       The provisions             of subsection             (4) do not limit
        the introduction              of any other            competent        evidence       bearing
        upon the           issue      of whether             the person            was under         the
        influence         of alcohol,         drugs,        or a combination             of the two.


                                                            24
                  61-8-402.        (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,
          subject     to the provisions         of 61-8-401,      to a test or tests
          of the person's          blood,    breath,     or urine     for the purpose
          of determining          any measured       amount    or detected       presence
          of alcohol      or drugs in the person's              body if arrested          bv
             peace officer         for drivinq                a vehicle     while    under
          the influence         of alcohol[.]         [Emphasis    added.]


                   45-5-205.      (1) If a person operates      a motor vehicle
          in a negligent        manner and he is drivinq        while   under the
          influence        of alcohol      .       as provided      for  in 61-8-
          401(I),      and his conduct       is the cause of bodily     injury    to
          another,       he commits     the offense    of negligent     vehicular
          assault.       [Emphasis    added.]

           I      emphasize                the            fact          that          defendant                 Greg        Stueck              was      not

arrested               for      the       offense                 of     driving                 while      under         the        influence             of

alcohol.
          The          District             Court             erroneously                         concluded            that,          because            the

negligent               vehicular                assault                statute             requires            that        the      accused            must

be      operating                 a     motor             vehicle              in     a negligent                    manner             and      driving

while           under           the        influence                    of      alcohol,                 the      statute               necessarily

requires               compliance                    with         § 61-8-402,                      MCA,        the       so-called               implied

consent           statute.                 The majority                         of        this      Court        also        engages             in     that

erroneous                   analysis.                 Both         the       District                Court           and the            majority           of

this       Court             have       engaged              in        faulty             logic.

           Section              61-8-402,                   MCA,         the         implied             consent          statute,               applies

only       if         the      accused               is     arrested                 by     a peace            officer            for         driving          a

vehicle           while           under          the        influence                 of         alcohol.            This       is      clearly          not

the      fact          in     the     present               case.              Stueck             was not        arrested               for      driving
under           the         influence            of         alcohol.

           The inferences                        relating                to alcohol                 concentration                    in a person's
body       as         set       forth           in        5 61-8-401,                     MCA,        are      rebuttable                 inferences



                                                                                25
only       and,       as     in      that         section           provided,                    proof           of          such     alcohol

concentration                is    not          the     only       method             by     which              a conviction                  for
operating           a motor        vehicle             while       under         the        influence                   of     alcohol        can

be obtained.                 Any        other         competent               evidence            bearing                on that            issue

may be introduced                    and may result                      in    a conviction.

          State       v.     Thompson              (1984),          207        Mont.         433,           674         P.2d         1094,      is

clearly          on point          in     this         case,       and the            efforts              of      the        majority          to

distinguish                Thompson              are      misplaced.                       The        operative                     facts       in

Thompson           are     virtually              identical              to     the        facts           of      this         case.         The

fact      that      Thompson's              drunken            driving          resulted              in        a homicide               cannot

be     legally           distinguished                  from      the         facts         in     this           case.              Stueck's

driving          may well          have          resulted          in         a homicide                 instead              of     a bodily

injury        to    Mr.      Troth.              The     legal         principles                  set          forth         in     Thompson

are      applicable           here.

          I would          reverse          the        decision           of     the       District                Court.




                                                                                            /J<&    Chief               Justice




                                                                  26
