State of Montana v. Michael L. Berger

Summary

The Montana Supreme Court affirmed the denial of Michael Berger’s motion to dismiss charges arising from a DUI investigation. The Court held that an officer’s failure to advise Berger of his right to obtain an independent blood test did not violate due process because the officer requested only a preliminary alcohol screening test, Berger refused it, and the State obtained no blood or breath testing evidence. The Court also held that dismissal was not warranted for the related reckless driving and criminal mischief charges.

Holdings

1. When an officer requests only a preliminary alcohol screening test under § 61-8-409, MCA, and does not request a blood or breath test under § 61-8-402, MCA, the officer's failure to advise the accused of the right to obtain an independent blood test does not impede that right or violate due process.
2. The officer's failure to advise Berger of the right to an independent blood test did not entitle him to dismissal of the reckless-driving and criminal-mischief charges.
3. Suppression was unnecessary because there was no blood or breath test result or other testing evidence to suppress.

Questions Presented

1. Whether an officer's failure to advise a suspect of the right to obtain an independent blood test, when the officer requested only a preliminary alcohol screening test under § 61-8-409, MCA, violated due process.
2. Whether that failure required dismissal of the DUI charge or the non-DUI charges.
3. Whether suppression was an available remedy when the State obtained no blood or breath test evidence.

Disposition

affirmed