                                                                                           February 2 2016


                                          DA 15-0099
                                                                                          Case Number: DA 15-0099

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 26N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHRISTOPHER R. JOHNSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 14-469
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula,
                        Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Kirsten Pabst, Missoula County Attorney, Mac Bloom, Deputy County
                        Attorney, Missoula, Montana


                                                   Submitted on Briefs: December 30, 2015

                                                              Decided: February 2, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

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

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

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

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

Reports.

¶2     Christopher R. Johnson was convicted in the Fourth Judicial District Court of

driving while intoxicated (DWI). He challenges the District Court’s jurisdiction and

appeals the court’s orders denying his motions to dismiss for lack of a speedy trial and to

suppress the evidence of his intoxication. We affirm.

¶3     Missoula County Deputy Sheriff Ross Jessop arrested Johnson on April 17, 2014,

for DWI and transported him to the Missoula County Detention Facility (MCDF). Jessop

read Johnson the implied consent advisory form and asked him to submit a breath

sample. Johnson refused. After more discussion, Jessop asked if Johnson would provide

a blood sample and Johnson readily agreed. Jessop took Johnson to St. Patrick’s Hospital

where Johnson’s blood was collected. Later that same day, Johnson entered a not guilty

plea in the Missoula County Justice Court. Johnson’s blood test results indicated that

Johnson’s blood alcohol level at the time of the test was .12. On August 26, 2014, the

Justice Court granted Johnson’s motion to suppress evidence of his intoxication, finding

that Jessop had not followed proper procedure under § 61-8-402, MCA (the implied

consent law). The State appealed the Justice Court’s ruling to the District Court in




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accordance with § 46-20-103, MCA, seeking a trial de novo. The District Court assumed

jurisdiction of the case.

¶4     Johnson filed multiple motions in District Court, including a motion to dismiss for

violation of his right to a speedy trial, a motion to suppress the blood test evidence

against him, and a motion to dismiss for lack of jurisdiction. The District Court denied

all of these motions in December 2014 and January 2015.

¶5     Following a jury trial conducted on February 6, 2015, the jury found Johnson

guilty of driving while intoxicated. In addition to various fines, fees, and a requirement

to complete ACT class1, the court sentenced him to six months at MCDF, with all but one

day suspended. Johnson appeals arguing the District Court lacked jurisdiction to review

the case and that the court erred when it denied his motions to dismiss and suppress.

¶6     Johnson first argues that the District Court lacked jurisdiction to accept the State’s

appeal from the Justice Court’s suppression order. Relying on State v. Strizich, 286

Mont. 1, 952 P.2d 1365 (1997), he asserts that the Justice Court’s order was an

evidentiary ruling rather than an order of suppression and that an order declaring

evidence inadmissible is not entitled to de novo review. The State acknowledges that it

may not appeal decisions excluding evidence based upon the Rules of Evidence, but

asserts that the order in the case at bar is a suppression order that is appealable by the

State under § 46-20-103(2)(e), MCA.




1
   ACT (Assessment, Course, Treatment) is a program designed to help persons convicted of
driving under the influence or while intoxicated.


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¶7     Section 46-20-103(2)(e), MCA, provides that the State may appeal from any court

order or judgment the substantive effect of which results in suppressing evidence. The

District Court noted that Johnson’s “motion to suppress” and supporting brief to the

Justice Court did not seek to have the evidence excluded based upon a rule of evidence;

rather, it sought to have it suppressed based upon alleged statutory and constitutional

violations by law enforcement. The Justice Court agreed with Johnson and granted the

motion to suppress, and the District Court on review concluded the order was a

suppression order and that it therefore had jurisdiction over the appeal.

¶8     In Strizich, we concluded that an order excluding from evidence the results of a

field preliminary alcohol screening test was not a suppression order, but rather was an

order ruling the evidence inadmissible under the rules of evidence.         In reviewing

extra-jurisdictional cases distinguishing between suppression and inadmissibility, we

quoted State v. Dwyer, 847 S.W.2d 102 (Mo. Ct. App. 1992):

       The “suppression” of evidence is not the same thing as the exclusion of
       evidence on the basis of some rule of evidence. Suppression is a term used
       for evidence which is not objectionable as violating any rule of evidence,
       but which has been illegally obtained.

Strizich, 286 Mont. at 8, 952 P.2d at 1369. See also State v. Willis, 2008 MT 293, ¶ 18,

345 Mont. 402, 192 P.3d 691 (“[O]rders ‘suppressing evidence’ do not include pretrial

orders that exclude evidence based on the Rules of Evidence, such as relevancy,

probative value, or statutory inadmissibility.”).

¶9     In this case, the Justice Court ordered suppression of the blood test evidence

because Jessop failed to properly follow the procedure set out in § 61-8-402, MCA.



                                              4
While the Justice Court erred in interpreting the statute and suppressing the evidence, the

order nonetheless constituted a suppression order appealable under § 46-20-103(2)(e),

MCA. The District Court did not err in accepting jurisdiction over the appeal.

¶10    Johnson also asserts the District Court erred in denying his motion to dismiss for

lack of a speedy trial because the District Court did not bring him to trial for

misdemeanor DWI before October 17, 2014, i.e., six months after his April 17, 2014

arrest, in accordance with § 46-13-401(2), MCA.

¶11    Section 46-13-401(2), MCA, provides:

              After the entry of a plea upon a misdemeanor charge, the court,
       unless good cause to the contrary is shown, shall order the prosecution to be
       dismissed, with prejudice, if a defendant whose trial has not been
       postponed upon the defendant’s motion is not brought to trial within 6
       months.

¶12    We review a district court’s denial of a motion to dismiss misdemeanor charges

for violation of the speedy trial statute to determine whether the district court’s

interpretation of the statute was correct. State v. Bullock, 272 Mont. 361, 368, 901 P.2d

61, 66 (1995).

¶13    We addressed a similar situation in State v. Sunford, 244 Mont. 411, 796 P.2d

1084 (1990), where we stated “The six-month rule contained in § 46-13-201(2), MCA

(renumbered § 46-13-401, MCA, Code Commissioner, 1991), does not apply in

circumstances where the defendant is tried in justice court and the judgment is appealed

for trial de novo in district court.” Sunford, 244 Mont. at 415, 796 P.2d at 1086.

¶14    We revisited this ruling in Bullock, where we explained that “So long as the justice

court jurisdiction is exhausted within six months by some action which authorizes appeal


                                             5
de novo to the district court, § 46-13-401(2), MCA, has been satisfied.” Bullock, 272

Mont. at 369, 901 P.2d at 67. Here, the jurisdiction of the Justice Court was exhausted

within 6 months, as that court issued its suppression order approximately four months

after Johnson’s arrest. We have determined that the Justice Court’s suppression order

authorized an appeal de novo to the District Court. Thus, the misdemeanor speedy trial

statute has been satisfied, and Bullock squarely applies. The District Court did not err in

denying Johnson’s motion to dismiss for lack of a speedy trial.

¶15    Lastly, Johnson argues that the District Court erred when it denied his motion to

suppress the evidence of his intoxication based upon the arresting officer’s failure to

comply with § 61-8-402, MCA.

¶16    Johnson maintains that under this statute as soon as he refused to take the breath

test Jessop was required to seize his license and was not allowed to ask that he consent to

a blood test. The District Court determined that Jessop lawfully exercised discretion in

affording Johnson an opportunity to provide a blood test given Johnson’s distrust of the

Intoxilyzer.   We agree.     Section 61-8-402(2)(b), MCA, expressly provides that law

enforcement may exercise discretion in determining the test or tests to be administered.

As noted by the District Court, there is no language in the statute prohibiting an officer

from offering a defendant an alternate method of providing evidence. Section 1-2-101,

MCA, expressly provides that “In 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 or to omit what has been inserted. . . .” The District Court

did not misinterpret the statute.


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

our Internal Operating Rules, which provides for noncitable memorandum opinions. In

the opinion of the Court, this case presents questions clearly controlled by settled law.

¶18    Affirmed.


                                                  /S/ PATRICIA COTTER


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




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