                                                                                                04/10/2018


                                          DA 16-0499
                                                                                           Case Number: DA 16-0499

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2018 MT 81



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

LAURA LEE NEVA,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-Second Judicial District,
                       In and For the County of Stillwater, Cause No. DC 15-23
                       Honorable Brenda R. Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, J. Stuart Segrest, Assistant
                       Attorney General, Helena, Montana

                       Nancy Rohde, Stillwater County Attorney, Columbus, Montana



                                                    Submitted on Briefs: March 7, 2018

                                                               Decided: April 10, 2018


Filed:

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

¶1     Laura Neva appeals her conviction upon a nolo contendere plea for driving under

the influence (DUI) in the Twenty-Second Judicial District, Stillwater County. We affirm,

and address the following issue:

       Did the officer unreasonably impede Neva’s right to obtain an independent blood
       test?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     On the evening of July 6, 2014, Montana Highway Patrol Trooper Zachary

Grosfield responded to a low-speed, rear-end collision in Absarokee. Neva, driving a 1997

Ford pickup, had rear-ended an SUV stopped at a stop sign. The initial impact pushed the

SUV forward, and Neva then accelerated, hitting the SUV a second time.               While

questioning her about the accident, Officer Grosfield detected that Neva smelled of alcohol,

slurred some of her words, and exhibited reddening in her eyes. Grosfield administered a

field sobriety test, on which Neva did “very poorly,” though Neva stated she had a cow-

roping injury that prevented her from properly performing the tests. The preliminary breath

test indicated a .261 blood alcohol content. Neva seemed surprised, and requested to take

it again. Grosfield placed Neva under arrest and informed her that another breath test

would be administered on a different instrument at the Sheriff’s office in Columbus.

¶3     On the drive to Columbus, Neva implied she had sued local law enforcement in the

past, which resulted in four officers and a country attorney losing their jobs. Neva also

told Grosfield that she had prevailed at the Montana Supreme Court twice in a case against


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a former landlord. Upon arriving at the station, Grosfield asked another person at the

station to keep an eye on things, given Neva’s apparent interest in litigation.

¶4     At the station, Neva had difficulty providing a proper breath sample. Grosfield

noticed that Neva was placing her tongue into the straw and blowing around it. Grosfield

told Neva he knew she could provide a sufficient breath sample because she had already

done so. To inspire Neva to provide a proper sample, Grosfield stated, “otherwise we gotta

go down to the hospital and get a blood draw and that’s way too much work.” Grosfield

then read Neva the implied consent advisory, including the notification of her right to an

independent blood test. Several hours after the accident, and with much encouragement

from Grosfield, two breath samples were obtained from Neva, including readings of .199

and .184.

¶5     Neva again expressed surprise at the results because she did not feel intoxicated.

Grosfield explained that heavily intoxicated people often do not feel inebriated and began

to read Neva her Miranda rights. Neva interrupted to ask, “can I get a blood test too?”

Grosfield responded, “you can get a blood test,” explaining it would be at her own expense

and, “after we’re finished here.” Neva agreed to answer questions, but expressed continued

interest in a blood test during the interview.

¶6     After the interview, Grosfield asked Neva if there was someone she could call to

give her a ride to the hospital for the blood test. Neva asked Grosfield for a ride home, and

Grosfield reminded Neva that she wanted a blood test and needed to go to the hospital first.

Neva asked Grosfield to take her the hospital and then to her house. Grosfield explained

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he did not have time to do that, but went to his car to retrieve Neva’s phone so she could

arrange transportation to the hospital. When Neva stated she would call the friend she was

drinking with earlier, Grosfield advised that anyone who was transporting her needed to be

sober. Grosfield allowed Neva to attempt to arrange a ride while he finalized paperwork

related to Neva’s DUI charge. Neva made three phone calls, but no one answered.

¶7     Grosfield informed Neva he would take her to her house, and that she could

continue her efforts to arrange a ride for a blood test. He encouraged her to do it promptly,

given the amount of time that had elapsed since the accident. Arriving at Neva’s house,

Grosfield provided Neva with citations for aggravated DUI and careless driving, as well as

written warnings for Neva’s failure to have proof of insurance and a vehicle registration in

the vehicle, and to have her driver’s license. Grosfield again encouraged Neva to call

someone to take her to the hospital for a blood test.

¶8     Grosfield later testified that he did not have time to take Neva to the hospital and

wait for the blood draw, which could take several hours, because he was the only trooper

on duty that night in a three-county area, including Sweet Grass, Stillwater, and Carbon

counties. He explained that he had been unable to respond to a rollover accident, and that

there were fights at a barbeque competition in Absarokee. He testified that he could not

safely release Neva from the station to walk the approximately 10 blocks to the hospital,

nor could he drop her off at the hospital, because he believed she was “very intoxicated”

and had no way to get home, which was about 10 miles away. In addition to his concern

about her safety, Grosfield noted he was concerned about his and the hospital’s liability if

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he were to release Neva or leave her at the hospital, particularly if she tried to walk home

along the highway. Grosfield testified that he was not sure if there was a city police officer

or sheriff’s deputy who could have taken Neva to the hospital and then home, but that he

did not ask because it was a busy night and he prefers to handle his arrests to completion,

rather than tying up another officer. Grosfield testified he thought it was likely that Neva

would find someone to take her to the hospital, because she told him she had lived in the

area many years and used to own a business there.

¶9     Neva filed a motion to dismiss the DUI charge in the Stillwater County Justice

Court, arguing she had been deprived of her due process right to an independent blood test

pursuant to § 61-8-405(2), MCA. The Justice Court held a hearing wherein Grosfield

testified and portions of the investigation audio were played. The Justice Court held that

Grosfield had no obligation to transport Neva for a blood test and did not unreasonably

impede her ability to obtain a test by taking her home. A jury convicted Neva of DUI and

careless driving.

¶10    Neva appealed to District Court, where she again moved to dismiss the DUI charge.

A hearing was held wherein Grosfield again testified and audio from the investigation was

played. The District Court denied the motion, finding Grosfield’s testimony to be credible,

and holding that he had not unreasonably impeded Neva’s ability to obtain an independent

test. Neva entered a no contest plea to DUI and careless driving, reserving the right to

appeal the denial of her motion to dismiss.




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                               STANDARD OF REVIEW

¶11    We review de novo a district court’s decision denying a criminal defendant’s motion

to dismiss. State v. Minkoff, 2002 MT 29, ¶ 8, 308 Mont. 248, 42 P.3d 223 (citations

omitted).

                                      DISCUSSION

¶12 Did the officer unreasonably impede Neva’s right to obtain an independent blood
test?

¶13    One accused of DUI “has a right to obtain a sobriety test independent of that offered

by the arresting officer.” State v. Swanson, 222 Mont. 357, 360, 722 P.2d 1155, 1157

(1986); City of Whitefish v. Pinson, 271 Mont. 170, 172, 895 P.2d 610, 612 (1995)

(citations omitted); State v. Sidmore, 286 Mont. 218, 233, 951 P.2d 558, 568 (1997)

(citations omitted); Minkoff, ¶ 9 (citations omitted). The accused must be informed of her

right to obtain an independent test, and if she timely requests one, “the officer may not

frustrate or impede the person’s efforts to do so.” Minkoff, ¶¶ 9-10 (citations omitted). At

the same time, officers have no duty to affirmatively assist a person in obtaining an

independent blood test. Minkoff, ¶ 9 (citations omitted). Consistent with our holdings, the

Legislature has codified the process that is due with regard to an independent sobriety test:

       In addition to any test administered at the direction of a peace officer, a
       person may request that an independent blood sample be drawn by a
       physician or registered nurse for the purpose of determining any measured
       amount or detected presence of alcohol, drugs, or any combination of alcohol
       and drugs in the person. The peace officer may not unreasonably impede the
       person’s right to obtain an independent blood test. The officer may but has
       no duty to transport the person to a medical facility or otherwise assist the
       person in obtaining the test. The cost of an independent blood test is the sole
       responsibility of the person requesting the test. The failure or inability to
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       obtain an independent test by a person does not preclude the admissibility in
       evidence of any test given at the direction of a peace officer.

Section 61-8-405(2), MCA (emphasis added).

¶14    Neva first argues, relying on Swanson, that not releasing her at the station and

instead driving her home, ten miles from the hospital, was a deviation from standard

procedure that frustrated her ability to obtain an independent blood test. She argues that

under standard police policy, she should have been released to walk the ten blocks to the

hospital. In Swanson, the police allowed the defendant to obtain an independent blood

draw, and a vial marked “keep refrigerated” was given to the defendant. Swanson, 222

Mont. at 361, 722 P.2d at 1158. However, the officers took the vial from the defendant as

part of the routine inventory booking search, and left the vial on the counter, where its

evidentiary value spoiled. Swanson, 222 Mont. at 361, 722 P.2d at 1158. We held that this

action interfered with Swanson’s right to obtain exculpatory evidence, noting the police

deviated from their own procedure of preserving evidence taken from a defendant.

Swanson, 222 Mont. at 361-62, 722 P.2d at 1158.

¶15    We first note that Neva never asked to be released so that she could walk to the

hospital, but requested only that Grosfield drive her to the hospital, which, pursuant to § 61-

8-405(2), MCA, he had no obligation to do. Grosfield testified he was willing to release

an intoxicated person at the station, but only if they had arranged for a ride home. Thus,

upon Neva’s failure to obtain transportation, Grosfield’s action in driving her home to

ensure her safety, given her apparent state of intoxication, was not a departure from

procedure that denied her due process.
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¶16    Secondly, Neva argues that because Grosfield told her she could get a blood test, he

had an obligation to take her to the hospital to get one. We have held that, if an officer

promises to take a defendant for an independent blood draw, an obligation is created to

follow through on that promise. See Pinson, 271 Mont. at 175, 895 P.2d at 613. Neva

argues, “as in Pinson, Grosfield told Neva that she would be able to get the test,” thus

creating an obligation for Grosfield to transport her to the hospital. In Pinson, the

defendant refused a breath test and instead asked for a blood test. Pinson, 271 Mont. at

173, 895 P.2d at 612. The arresting officer told Pinson, “[w]e’ll go get blood in a little

while,” but never followed through on that promise, leaving Pinson in her cell. Pinson,

271 Mont. at 173, 895 P.2d at 612. We determined this violated Pinson’s due process right

to get an independent test. Pinson, 271 Mont. at 175, 895 P.2d at 613.

¶17    However, although Grosfield notified Neva that she had a right to an independent

blood test, he did not promise to transport her to obtain the test, as in Pinson. Grosfield

specifically told Neva that “you” can obtain a test “at your own expense.” Neva’s argument

would create an obligation for law enforcement to transport a defendant for an independent

test by merely notifying her of the right to get an independent test, which is inconsistent

with § 61-8-405(2), MCA, and our precedent. Rather, this case is closer to Sidmore, where

the officer provided Sidmore with a phone and phonebook to arrange an independent test,

and told him that transportation would be provided for the test once Sidmore had arranged

it. Sidmore, 286 Mont. at 237, 951 P.2d at 570. However, Sidmore failed to arrange for a




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test, and we held that the officer did not impede the right to due process. Sidmore, 286

Mont. at 237, 951 P.2d at 570.1

¶18    Lastly, Neva argues, relying on Minkoff, that driving her home, ten miles away from

the hospital, was an affirmative act that frustrated her ability to obtain a blood test. In

Minkoff, the arresting officer informed Minkoff that he had a right to an independent blood

test at his own expense. Minkoff, ¶ 3. When Minkoff asked an officer if he should get a

blood test, the officer told Minkoff that his blood alcohol concentration would be higher

on the blood test. Minkoff, ¶ 4. We held the statement unreasonably impeded Minkoff’s

due process rights, noting the officer’s statements, “albeit well-intentioned, were

affirmative acts which would frustrate, if not obliterate, the intention of any rational

arrestee to obtain an independent blood test.” Minkoff, ¶ 16. We concluded someone

would rarely assert their right to an independent blood test after being advised it would

show a higher concentration than the blood test. Minkoff, ¶ 16. Neva argues that Grosfield

unreasonably impeded her ability to obtain a blood test by the well-intentioned but

affirmative action of driving Neva to her home, leaving her in a place where she was

unlikely to be able to obtain a test and, further, that his assessment of her state of

intoxication and concern for her safety were “unsubstantiated” and “hypothetical.”

¶19    Minkoff is clearly distinguishable because Grossfield did not discourage Neva from

obtaining an independent test, as the officer did in Minkoff, but instead brought Neva’s



1
  Neva suggests that Sidmore was overruled by Minkoff, an argument raised by the dissent and
rejected by the majority in Minkoff.
                                          9
phone to her and encouraged her multiple times to arrange transportation for a test. Further,

Grosfield’s concern for Neva’s safety was credited by the District Court, which found

credible Grosfield’s testimony that Neva was “very intoxicated.” Thus, it was reasonable

for Grosfield to not release Neva ten miles from her home, in the middle of the night, with

no way to get home. Whether or not Neva was prone to litigation, Grosfield, by taking her

into custody, assumed a duty to protect her from harm. See Nelson v. Driscoll, 1999 MT

193, 295 Mont. 363, 983 P.2d 972.

¶20    Affirmed.



                                                  /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON




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