author: CHIEF JUSTICE TURNAGE HONORABLE BUYSKE, District Judge, JUSTICE GRAY,

text:
    SKYLINE SPORTSMEN’S ASSOCIATION, ANACONDA SPORTSMEN’S CLUB, MONTANA ACTION FOR ACCESS ASSOCIATION, and COALITION FOR APPROPRIATE MANAGEMENT OF STATE LANDS, Plaintiffs and Appellants, v. BOARD OF LAND COMMISSIONERS; DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION; and GOVERNOR MARC RACICOT; JOSEPH P. MAZUREK, ATTORNEY GENERAL; MIKE COONEY, SECRETARY OF STATE; NANCY KEENAN, SUPERINTENDENT OF PUBLIC INSTRUCTION; and MARK O’KEEFE, STATE AUDITOR; in their capacities as Members of the State Land Board, Defendants and Respondents. MONTANANS FOR THE RESPONSIBLE USE OF THE SCHOOL TRUST, Intervenors, v. SKYLINE SPORTSMEN’S ASSOCIATION, et al., and BOARD OF LAND COMMISSIONERS, et al., Defendants in Intervention.
    No. 96-668.
    Heard and Submitted October 21, 1997.
    Decided December 15, 1997.
    54 St.Rep. 1326.
    286 Mont. 108.
    951 P.2d 29.

      For Appellant: Brian M. Morris (argued), Goetz, Madden & Dunn, Bozeman.
    For Respondent: Tommy Butler (argued) and Richard E. Bach, Special Assistant Attorneys General, Helena; Roy H. Andes (Intervenor) (argued), Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District Court for the First Judicial District, Lewis and Clark County, granted Defendants’ motion for summary judgment and denied Plaintiffs’ request for a preliminary injunction, dismissing a challenge to a proposed land exchange between the Board of Land Commissioners and Turner Enterprises, Inc. We vacate and remand.

The dispositive issue is whether the District Court erred by granting summary judgment because Plaintiffs raised genuine issues of material fact.

Background

The Board of Land Commissioners (Board) is one of a handful of boards established by the Montana Constitution. The Board has direct constitutional authority to lease, exchange, and sell state trust lands.

The governor, superintendent of public instruction, auditor, secretary of state, and attorney general constitute the board of land commissioners. It has the authority to direct, control, lease, exchange, and sell school lands and lands which have been or may be granted for the support and benefit of the various state educational institutions, under such regulations and restrictions as may be provided by law.

Article X, Section 4, Mont. Const. In addition, Article X, Section 11(4), Mont. Const., provides:

All public land shall be classified by the board of land commissioners in a manner provided by law. Any public land may be exchanged for other land, public or private, which is equal in value and, as closely as possible, equal in area.

Section 77-1-202(1), MCA, echoes the constitutional authority of the Board. It states:

The board shall exercise general authority, direction, and control over the care, management, and disposition of state lands and, subject to the investment authority of the board of investments, the funds arising from the leasing, use, sale, and disposition of those lands or otherwise coming under its administration. In the exercise of these powers, the guiding principle is that these lands and funds are held in trust for the support of education and for the attainment of other worthy objects helpful to the well-being of the people of this state as provided in The Enabling Act. The board shall administer this trust to secure the largest measure of legitimate and reasonable advantage to the state.

In 1993, Turner Enterprises, Inc. (Turner), submitted a proposal to the Board to exchange state school trust land located within the boundaries of Turner’s Flying D Ranch southwest of Bozeman, Montana, for private land Turner owned elsewhere in Montana. The original proposal was to exchange 7,486 acres of state land within the Flying D Ranch for 12,689 acres of land Turner owned within the Snowcrest Ranch south of Alder, Montana, and the Ulm Pishkun southwest of Great Falls, Montana. The Department of Natural Resources and Conservation (Department) reviewed the proposal and recommended that it be rejected as not assuring a “good deal” for the State when all attributes of the state lands were evaluated against the land proposed for state acquisition.

Turner then modified its proposal by deleting from the proposed exchange two sections of state lands within the Flying D Ranch. As modified, the proposal was to exchange 6,167 acres of state land for 12,689 acres of private land. On April 15, 1996, after review by the Department, solicitation of public comment, and preparation of an environmental assessment (EA) as required under the Montana Environmental Policy Act, §§ 75-1-101 through -324, MCA, the Board approved the modified proposal.

The plaintiff organizations of recreationists and sportsmen brought this declaratory judgment action arguing that the Board had overstepped its lawful discretion under the Montana Constitution because it did not exchange the state land “under such regulations and restrictions as may be provided by law.” Article X, Section 4, Mont. Const. Specifically, Plaintiffs argued that the Board did not comply with § 77-2-203(2), MCA:

If the requirements of subsection (1) and 77-2-204 are met, state lands bordering on navigable lakes and streams or other bodies of water with significant public use value may be exchanged for private land if the private land borders on similar navigable lakes, streams, or other bodies of water.

The two most significant bodies of water on the private land owned by Turner are Ledford Creek and Robb Creek, both of which are located on the Snowcrest Ranch. Cherry Creek and Spanish Creek are the two most significant bodies of water on the state land proposed for exchange. Plaintiffs argued that while Cherry Creek and Spanish Creek are streams with significant public use value, Ledford Creek and Robb Creek are not.

The Plaintiffs pointed out that throughout the process of approving the land exchange, the Board told them that § 77-2-203(2), MCA, did not apply because “there are no state lands bordering on a navigable lake or stream included in this proposed exchange.” Only on June 17, 1996, after Plaintiffs had filed this action, did the Board make supplementary findings on § 77-2-203(2), MCA, including a finding that Robb Creek and Ledford Creek have “the potential to provide significant public use value.”

MonTRUST, a non-profit citizens’ organization promoting the protection, advancement and appropriate use of Montana’s school trust lands on behalf of public education, was granted leave to intervene before the District Court. The Defendants moved to dismiss the action or, in the alternative, for summary judgment. Intervenors moved for summary judgment as well, while Plaintiffs moved for a preliminary injunction to prevent the exchange from proceeding during the pendency of this lawsuit. At a hearing on all of the pending motions, the attorneys for the parties and for the Intervenors made oral argument. Additionally, Plaintiffs presented testimony of five witnesses concerning the comparability of the bodies of water on the lands proposed for exchange.

In a memorandum and order entered after the hearing, the court found that the Plaintiffs had standing to bring this action but that the Board had adequately considered the requirements set forth at § 77-2-203(2), MCA. Accordingly, the court granted the Defendants’ motion for summary judgment and denied the Plaintiffs’ motion for a preliminary injunction.

Discussion

Did the District Court err by granting summary judgment because Plaintiffs raised genuine issues of material fact?

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court’s standard of review of a summary judgment is the same standard as that employed by the district court — whether there are genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Missoula Rural Fire Dist. v. City of Missoula (1997), [283 Mont. 113], 938 P.2d 1328, 1329.

The standard of review of an informal administrative decision is whether the decision was arbitrary, capricious, or unlawful. North Fork Pres. v. Dept. of State Lands (1989), 238 Mont. 451, 458-59, 778 P.2d 862, 867. It was appropriate for the District Court, in applying that standard, to accept new evidence and not to limit its review to the administrative record. In a proceeding to determine whether an agency decision was arbitrary, capricious, or unlawful, unless the reviewing court looks beyond the record to determine what matters the agency should have considered, it is impossible for the court to determine whether the agency took into consideration all relevant factors in reaching its decision. ASARCO, Inc. v. U.S.E.P.A. (9th Cir. 1980), 616 F.2d 1153, 1160.

Combining the two applicable standards of review, the question before the District Court and this Court is whether the Plaintiffs have established a genuine issue of material fact as to whether the Board’s decision was arbitrary, capricious, or unlawful.

In their brief and at oral argument, the Defendants pointed out that under Montana’s stream access law at § 23-2-302(1), MCA, the effect of the proposed land exchange on the availability of Cherry Creek and Spanish Creek to recreationists will merely be fewer points of access; recreationists will retain the right to use the creeks. A condition to the exchange would be that public access to the creeks would be maintained at legal access points. The Defendants also point out the “world-class hunting opportunities” on the Snowcrest Ranch, now privately-owned, but which would become state land. The Defendants explain that a multitude of factors entered into the evaluation of whether the exchange serves the interests of the school trust beneficiaries and provides recreational opportunities for the public.

Similarly, the Intervenors argue that the Board’s fiduciary duty to the trust beneficiaries mandates approval of this proposed land exchange because the exchange will result in greater income to the beneficiaries, which the Intervenors argue is the only purpose of the trust. As a result of the exchange, the trust corpus would gain $217,438 in value plus a projected additional $6,577 in annual income from hunting fees and agricultural and grazing leases.

However, neither the Board’s fiduciary duty to the trust beneficiaries nor the other factors which entered into its decision on this proposed land exchange relieves the Board of its constitutional obligation to follow the “regulations and restrictions” imposed by the Legislature on proposed land exchanges, including those found in § 77-2-203(2), MCA. We must presume that the Montana Legislature understood the effect of its action in passing § 77-2-203(2), MCA, a “regulation and restriction” which may constrict the Board’s discretion in managing state trust land. See Rider v. Cooney (1933), 94 Mont. 295, 310, 23 P.2d 261, 264 (“[t]he legislature is presumed to act, so far as mere questions of policy are concerned, with full knowledge of the facts upon which its legislation is based, and its conclusions on matters of policy are beyond judicial consideration”). The Board cannot ignore the requirements set forth at § 77-2-203(2), MCA, simply because it believes that it otherwise received a “good deal” from the proposed exchange.

The Board based its finding that Robb Creek and Ledford Creek have “the potential to provide significant public use value” on the following factors:

(a) The exchange would result in additional mileage of stream
ownership than currently owned by the State;
(b) These creeks can provide good sport fisheries to the public; and
(c) Robb Creek contains a highly pure strain of native cutthroat trout which is largely absent in either Cherry Creek or Spanish Creek.

As a preliminary matter, we note that § 77-2-203(2), MCA, refers to “significant public use value,” not potential for significant public use value.

The statement that Robb Creek and Ledford Creek had the potential to provide significant public use value was buttressed first by the Board’s finding that the lands to be received in the proposed exchange had more miles of streams. Additional stream mileage alone does not equate to significant public use value.

The Plaintiffs point out that the EA of Robb Creek and Ledford Creek indicated high levels of erosion and siltation, low fish numbers, and almost no public use. The EA discussed electroshock surveys undertaken by the Department of Fish, Wildlife & Parks (DFWP). According to the DFWP’s 1991 electroshock survey, Ledford Creek contained approximately ten brown trout and five rainbow trout for every 1,000 feet of stream and Robb Creek contained thirty-seven brook trout and five westslope cutthroat trout per 1,000 feet of stream. In contrast, an electroshock survey undertaken on upper Cherry Creek showed 237 rainbow trout and twenty-five brown trout; and on lower Cherry Creek, 164 brown trout, 128 rainbow trout, and twenty-six mountain whitefish per 1,000 feet of stream.

Further, while the EA asserted that Robb Creek and Ledford Creek were important spawning areas for fish living in the Ruby River, the Plaintiffs presented contrary testimony at the District Court hearing. The two DFWP fisheries biologists upon whose study this assertion in the EA was based, Messrs. Brammer and Oswald, testified that their studies did not cover Ledford Creek and Robb Creek but had focused instead on areas of the Ruby River upstream. Brammer, to whom the EA attributed a statement that these creeks were important spawning areas, stated that he could not agree with the statement attributed to him “because I don’t have any evidence that would suggest that’s the case.” Oswald testified that he did not find any evidence of spawning from Ruby River into Robb Creek and that any claim that Ledford Creek and Robb Creek are important spawning areas “could not be supported by the current evidence that we have.”

The EA described Ledford Creek as “a good sport fishery with management potential.” However, both Brammer and Oswald testified before the District Court that significant problems, including sedimentation, may prevent the development of Robb Creek and Ledford Creek as sport fisheries. Furthermore, Oswald testified that DFWP had absolutely no evidence from field reports or otherwise of anyone fishing in Robb Creek or Ledford Creek.

The Plaintiffs presented several witnesses who testified that Spanish Creek and Cherry Creek are excellent sport fisheries but that Robb and Ledford Creeks are not. Among others, William Fairhurst, a retired military pilot and avid outdoorsman, stated by affidavit that both Spanish Creek and Cherry Creek are “pristine blue ribbon trout streams with as good of fishing as can be found in the state.” He stated that, in contrast, “Ledford Creek and Robb Creek contain insignificant water flow compared to Spanish Creek and Cherry Creek, and, in fact, they are not rehable for fishing and water throughout the year.”

The Board’s supplemental findings further stated that Robb Creek contains a highly pure strain of westslope cutthroat trout largely absent in either Cherry Creek or Spanish Creek. The Plaintiffs presented evidence to the District Court on this point as well. Brammer testified that a recovery program for westslope cutthroat trout in Robb Creek would be speculative because of habitat degradation and a relatively higher density of the competitive brook trout. DFWP had no management plan in place for developing the westslope cutthroat trout population in Robb Creek, and none was proposed at the time of the hearing.

Additionally, at the hearing before the District Court, the Plaintiffs’witnesses raised valid questions about the extent to which access to Cherry Creek and Spanish Creek would be available to the public under the stream access law. All of the above factual issues must be viewed against the backdrop of a Board which maintained during its decisionmaking process that § 77-2-203(2), MCA, did not apply to this proposed exchange, but when faced with this lawsuit abruptly changed its position and belatedly adopted findings relating to significant public use of the waters involved.

We conclude that Plaintiffs should be accorded an opportunity through full discovery to explore the factual basis, or lack thereof, for the Board’s finding that Robb Creek and Ledford Creek constitute bodies of water with significant public use values. The Plaintiffs have raised genuine issues of material fact as to whether Robb Creek and Ledford Creek are streams with significant public use value, including: whether a “potential to” provide significant public use value is equivalent to providing significant public use value; the weight, if any, to be accorded an increase in stream mileage under state ownership as a result of the land exchange; the significance of the Robb Creek westslope cutthroat trout population in light of the other facts and circumstances; and the truth of the claim in the EA that Ledford Creek can provide a good sport fishery to the public. Because of these issues of fact, we hold that a material issue of fact exists as to whether the Board’s decision approving the proposed land exchange was arbitrary, capricious, and unlawful. Summary judgment was therefore improper.

Having determined that the District Court erred in granting summary judgment for the Board, we need not reach the other issues raised on appeal. We vacate the summary judgment and remand to District Court for further proceedings consistent with this Opinion.

JUSTICES HUNT, NELSON, REGNIER and TRIEWEILER concur.

HONORABLE BUYSKE, District Judge,

specially concurring.

I concur in the result of the majority opinion, but not in all that is stated in that opinion. I believe the path the majority chose to take to that result runs too broadly through a factual analysis and invites future litigants to view district court proceedings as a means to do what should have been done at the administrative agency level — develop the record. I would hold the District Court erred as a matter of law in concluding, in effect, the decision of the Board of Land Commissioners approving the land exchange at issue here was not arbitrary.

Although the matter was put before the District Court via a motion for summary judgment, the District Court chose to consider and rule on the matter as a judicial review of the administrative decision of the Board. The District Court could not make factual findings as those would be beyond the purview of that proceeding, hence its decision to uphold the decision of the Board is one of law. This Court’s review of legal decisions is plenary as no exercise of discretion is necessary to those decisions — the legal conclusion is either correct or not. Hicklin v. CSC Logic, Inc. (1997), [283 Mont. 298], 940 P.2d 447, 449; Erickson v. State ex rel. Bd. of Medical Examiners (1997), [282 Mont. 367], 938 P.2d 625, 628. When conducting its plenary review of a district court’s review of an informal administrative decision, this Court follows the same standard as the district court, namely, does the record before the administrative body establish it acted arbitrarily, capriciously, or unlawfully. North Fork Pres. v. Department of State Lands (1989), 238 Mont. 451, 458-59, 778 P.2d 862, 867. The administrative decision is arbitrary and capricious if it was not based upon a consideration of all relevant factors and if there has been a clear error of judgment. Citizens to Preserve Overton Park, Inc. v. Volpe (1971), 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136, 153.

The authority of the Board of Land Commissioners is established by the Montana Constitution:

The governor, superintendent of public instruction, auditor, secretary of state, and attorney general constitute the board of land commissioners. It has the authority to direct, control, lease, exchange, and sell school lands and lands which have been or may be granted for the support and benefit of the various state educational institutions, under such regulations and restrictions as may be provided by law.

Article X, Section 4, Mont. Const.

Section 77-1-202(1), MCA, echoes the constitutional authority of the Board when it states:

The board shall exercise general authority, direction, and control over the care, management, and disposition of state lands and, subject to the investment authority of the board of investments, the funds arising from the leasing, use, sale, and disposition of those lands or otherwise coming under its administration. In the exercise of these powers, the guiding principle is that these lands and funds are held in trust for the support of education and for the attainment of other worthy objects helpful to the well-being of the people of this state as provided in The Enabling Act. The board shall administer this trust to secure the largest measure of legitimate and reasonable advantage to the state.

A further “regulation” or “restriction” provided by law with respect to the actions of the Board is enumerated in § 77-2-203(2), MCA:

If the requirements of subsection (1) and 77-2-204 are met, state lands bordering on navigable lakes and streams or other bodies of water with significant public use value may be exchanged for private land if the private land borders on similar navigable lakes, streams, or other bodies of water.

The record before the District Court and this Court makes clear the Board did not believe the requirements of § 77-2-203(2), MCA, applied to this proposed land exchange transaction. Obviously, § 77-2-203(2), MCA, does apply to this land exchange transaction, and the conclusion of the Board to the contrary is a clear error of legal judgment. This error necessarily affected the development and consideration of the record upon which the Board based its April 15,1996, decision to approve the exchange. The Board could not have considered the elements of § 77-2-203(2), MCA, when its decision was made as the Board did not understand § 77-2-203(2), MCA, to apply to the proposed transaction.

Applying the review standards noted above to this situation, I hope I restate the obvious when clarifying that an administrative board must consider relevant factors prior to reaching its decision and not after that decision has been made. In this case it is undisputed that the Board approved the land exchange and then considered the similarity of the significant public use values of the waterways in question. The supplementary adoption of relevant evidence, when that evidence is statutorily required for lawful decision making, is unacceptable.

The Board is entrusted by the public with fiduciary control over Montana’s public trust land. To disregard a statute governing the maintenance of that trust in reaching a decision affecting the trust corpus, and then to provide after-the-fact-of-the-decision findings to justify compliance with the previously disregarded statute, is a not insignificant breach of the Board’s obligation to the public. Regardless of the manner in which the supplementary findings were adopted or the validity of facts supplemented to the record, the process is of such unseemly appearance as to be arbitrary as a matter of law. The statute ignored by the Board in making the decision to approve this land exchange is a direction from the citizens of this State that certain factors need be considered, and certain assurances confirmed, with respect to the exchange of their public trust lands for private lands. The citizens of this State can demand nothing more, and expect nothing less, than to have the governmental entities of the State follow the valid directions of the governed.

The Board has a statutory obligation to make certain, when it trades public lands that contain navigable lakes and streams or other bodies of water with significant public use value, the State of Montana receives lands with similar bodies of water. The Board’s refusal to consider § 77-2-203(2), MCA, during its decision making process and its attempt to justify its decision to approve the land exchange with supplementary hearings regarding § 77-2-203(2), MCA, constitutes an arbitrary failure of this statutory obligation.

I would remand this matter to the District Court for its return to the Board of Land Commissioners with instructions to reconsider its decision regarding this land exchange and to properly hear and consider evidence as to the significant public use values of the bodies of water upon the lands to be exchanged.

JUSTICE GRAY,

dissenting.

I respectfully and reluctantly dissent from the Court’s opinion. While it is clear that the Board of Land Commissioners and its legal advisers did not cover themselves in glory via their conduct in these proceedings, I cannot join the Court’s sweeping effort to reconstitute the administrative record on which the Board made its decision in order to provide the plaintiffs a “second bite at the apple” in their late effort to impact on that record and the ultimate decision in this case. I would affirm the District Court’s conclusion that the Board’s decision was not arbitrary, capricious or unlawful.

The issue of whether the Board’s decision was unlawful is not a difficult one. Late or not, the Board ultimately concluded that § 77-2-203(2), MCA, applies to this land exchange. When it did so, it made special findings relating to the statutory requirements on the basis of the record before it, provided opportunities for public input and comment on those findings, and ratified its earlier approval of the land exchange on the basis of those findings. Thus, it cannot fairly be said that the Board’s decision was unlawful.

Moreover, while I agree with the Court and with Judge Buyske’s thoughtful special concurrence that the procedures by which the Board’s ratified decision was made were undoubtedly unseemly from the standpoint of the public’s rightful expectations of the Board, the question before us is not whether the procedures were arbitrary or capricious. The question is whether the Board’s decision was arbitrary or capricious, and I submit that it was not. The District Court concluded, and I agree, that sections 3.2.8 and 4.1.8 of the EA provided a sufficient basis — that is, substantial evidence — to support the Board’s findings and conclusions that the land exchange meets the requirements of § 77-2-203(2), MCA. Beyond that, we cannot properly go in this case.

The Court, however, approaches this case as if it were a direct challenge to the EA, notwithstanding that all parties agree it is not. In its sweeping consideration and evaluation of the evidence the plaintiffs submitted to the District Court after the EA was long completed, this Court essentially upends the EA process and the right of agencies who must use EAs in decision-making to rely on them. It does so by essentially allowing the plaintiffs — who either sat out the EA process or whose views were not accepted during that process — to make a “new” record relating to matters addressed in the EA, after the fact and absent a legal challenge to the EA or the process by which the EA was developed. If the plaintiffs wanted to impact the EA, they were obliged to do so during that process. Since the evidence presented to the District Court was not offered during that process, it cannot properly be considered now in this indirect attack on the EA via a challenge to the Board’s decision.

Moreover, the plaintiffs could have presented the evidence at issue to the Board prior to the Board’s conclusion that § 77-2-203(2), MCA, applied or during the public comment and input opportunities provided on the Board’s special findings ratifying and approving the land exchange. They did not do that either. Thus, I cannot agree with the Court’s determination that this evidence can now be used to create genuine issues of material fact regarding whether the Board’s decision was arbitrary or capricious.

Finally, the Court’s approach to the use of late-offered evidence to create genuine issues of material fact regarding whether the Board’s decision was arbitrary or capricious essentially allows this Court — or any court — to intrude directly into the decision-making responsibilities of the Board. No matter how the Court couches it, its decision in this case means that every administrative agency decision can be challenged on “arbitrary or capricious” grounds if a mere evidentiary conflict in the record can be raised — or created after the fact — and every such challenge will allow courts to both intrude into agency decision-making and substitute their judgment for that of the agency. Notwithstanding the rumored discontent in many quarters over the extent to which the legislature has delegated authority to administrative agencies, I cannot agree that the Court can properly vest that authority in itself.

I dissent.


source: Caselaw Access Project

license: Public Domain

text:
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.
    STATE OF MONTANA Plaintiff, vs. Randy Burnett, Defendant.
    NO. BDC 95-214 DECISION
   On July 10,1997, it was hereby ordered, adjudged and decreed that for the offense of Criminal Possession With Intent to Sell (marijuana), a felony, the defendant is sentenced to Montana State Prison for a period of ten (10) years with two (2) years suspended upon the conditions previously set forth by the Court in its order dated March 15, 1996. The Court recommends the defendant not be granted parole until he has successfully completed chemical dependency treatment. The defendant is granted no credit for elapsed time.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended so that Randy Burnette is sentenced to the Department of Corrections instead of Montana State Prison for ten (10) years with two (2) years suspended. All other conditions shall remain the same as imposed.

DATED this 10th day of November, 1997.

The reason for the amendment is to expedíate the defendant’s opportunity for treatment.

Done in open Court this 16th day of October, 1997.

Alternate Chairman, Hon. Robert Boyd, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Randy Burnette for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Arvin P. Gallagher, Defendant.
    NO. ADC 93-185 DECISION
    DATED this 10th day of November, 1997.
   On August 26, 1997, it was therefore ordered, adjudged and decreed, that for the offense of Forgery, a Felony, in ADC 93-185(b) the defendant’s remaining suspended term is revoked and defendant is sentenced to ten (10) years with the Department of Corrections with Vi credit for street time. In BDC 93-282, for the offense of Assault, a Felony, the defendant’s remaining suspended term is revoked and defendant is sentenced to five (5) years with the Department of Corrections with Vi credit for street time. These sentences are to run consecutively. Defendant was remanded to the Cascade County Sheriff for Department of Corrections placement. When released, defendant is subject to conditions as stated in the August 26, 1997 judgment.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Arvin P. Gallagher for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. James A. Garrison, Defendant.
    NO. 11124 DECISION
    DATED this 10th day of November, 1997.
   On June 25, 1997, the Court found the defendant in violation of the conditions of his deferred sentence and the Court now having been fully advised as to the facts of the case, it is the judgment of the Court that defendant’s prior deferred sentence is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of five (5) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the recommendation of the Court that the defendant be considered for placement in the pre-release center program. The defendant may be placed in the intensive supervision program until such time as a bed becomes available in the pre-release center. It is the recommendation of the Court that as a condition of any parole or early release that the defendant shall comply with all of the conditions and provisions of the Judgment done in open Court on the 14th day of December, 1994. Due to the defendant’s failure to comply with the terms and conditions of his deferred sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from October 7, 1995, through October 10,1995; and from February 10, 1997, through February 14, 1997, for nine (9) days jail time which he has previously served.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for review of sentence shall be dismissed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Neil Hart, Defendant.
    NO. 10689 DECISION

      DATED this 10th day of November, 1997.
   On September 8,1997, it was the judgment of the Court that Neil Hart be and Neil Hart is hereby sentenced to a term of forty (40) years in the Montana State Prison in Deer Lodge, Montana, with 20 years suspended. The Court having heard the defendant’s petition for home arrest and upon consideration of the medical evidence presented, the Court finds that home arrest for six months is desirable in lieu of a sentence of imprisonment in the state prison. For the first six months of his sentence, the defendant will be confined to home arrest at his expense which will be supervised by the Department of Corrections Probation and Parole Office pursuant to Section 46-18-1001 and Section 46-18-1002, MCA. The home arrest program will be responsible for monitoring the defendant’s strict compliance with home arrest, and any violations will be reported to the Department of Corrections. The Department shall immediately report any violations to the Court. The defendant shall be confined to his home at all times except for undergoing medical treatment. The defendant shall be responsible for all his expenses, including the medical care expenses. The time spent in home arrest shall be credited against the term of imprisonment imposed.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by attorney Tom Winsor. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to twenty (20) years in Montana State Prison with ten (10) years suspended. It is the recommendation of the Sentence Review Division that Neil Hart be tested for cancer.

Reasons for the amendment are because of the defendant’s medical condition.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank attorney Tom Winsor for representing Neil M. Hart in this matter.


text:
    FROM: The District Court of the 21st Judicial District. County of Ravalli.
    STATE OF MONTANA, Plaintiff, vs. Walter P. Hoppe, Defendant.
    NO. DC 96-80 DECISION
   On June 11,1997, it was the sentence and judgment of the Court as follows: 1. That the defendant, Walter P. Hoppe, is guilty of the crime of Driving or Being in Physical Control of a Vehicle While Under the Influence of Alcohol and/or drugs, a Felony in violation of Section 61-8-401 M.C.A.; 2. The defendant is committed to the Department of Corrections for appropriate placement into a community-based program, facility, or state correctional institution for a period of ten (10) years, with five (5) years of said sentence suspended subject to conditions as stated in the June 11,1997judgment. The defendant shall receive credit for 91 days for jail time served prior to sentencing.

DATED this 10th day of November, 1997.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Walter P. Hoppe for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Merlyn Lee Marceau, Defendant.
    NO. BDC 90-025 DECISION
   On April 2,1997, it was ordered, adjudged and decreed, that the suspended portion of defendant’s sentence is revoked, with no credit for street time. Defendant is sentenced to the Montana State Prison, said sentence to run consecutive with any other sentences defendant is currently serving. Defendant is subject to conditions if released into any community as stated in the April 2, 1997 judgment. Further, the Court recommends that this defendant be screened for a Pre-Release Program and if not accepted for Pre-Release, that this defendant be required to secure a residence and then be considered for ISP. If the defendant returns to Cascade County or any community close to Cascade County, the Court recommends that defendant be considered for placement in the Crossroads Counseling City-County Recidivism Reduction Program.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

DATED this 10th day of November, 1997.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for review of sentence shall be dismissed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Charles McGrail, Defendant.
    NO. CDC 95-488 DECISION
    DATED this 10th day of November, 1997.
   On June 24,1996, it was ordered that the defendant be sentenced on Count I, Sexual Intercourse Without Consent, a Felony, to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. On Count IV, Sexual Intercourse Without Consent, a Felony, the Court sentences the defendant to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. On Count VI, Sexual Intercourse Without Consent, a Felony, the Court sentences the defendant to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. On Count VII, Sexual Intercourse Without Consent, a Felony, the Court sentences the defendant to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. The sentences imposed herein shall run concurrently. Defendant is ineligible for parole for ten (10) years. Defendant is given credit for 216 days served. The Court grants the State’s motion to dismiss Counts II, III and V. Defendant shall be subject to conditions as stated in the June 24, 1996 judgment.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se via phone call from Spur, TX. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Charles McGrail for representing himself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Ralph McNeil, Defendant.
    NO. DC 96-743 DECISION
    DATED this 10th day of November, 1997.
   On May 23, 1997, it was ordered, adjudged and decreed that on Count I: Criminal Possession of Dangerous Drugs (Felony) the said Ralph McNeil be committed to the Department of Corrections and Human Services pursuant to Section 46-18-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of five (5) years. 2. On Count III: Theft (Misdemeanor) the said Ralph McNeil be punished by imprisonment in the Yellowstone County Detention Facility, in the City of Billings, Montana, for the term of six (6) months to run concurrently with Count I of this criminal cause; 3. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 50 days. It is further ordered that additional special conditions shall apply which are stated in the May 23, 1997 judgment.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Ralph J. McNeil for representing himself in this matter.


text:
    FROM: The District Court of the 21st Judicial District. County of Ravalli.

      STATE OF MONTANA, Plaintiff, vs. Thomas B. Moritz, Defendant.
    NO. CR 95-97 DECISION
    DATED this 10th day of November, 1997.
   On October 30, 1996, it was the sentence and judgment of the Court as follows: 1. That the defendant, Thomas Bradley Moritz, is guilty of the crime of Attempted Sexual Intercourse Without Consent, a Felony, in violation of Section 45-4-103 M.C.A.; 2. That the defendant'shall be imprisoned in the Montana State Prison at Deer Lodge, MT, for a period of twenty (20) years, with seven (7) years suspended on the conditions set forth in the October 30, 1996 judgment. The defendant is not to be considered for parole until he has successfully completed both Phase I and II of the State Prison’s Sex Offender Treatment Program, Chemical Dependency Program, and the Moral Reconation Therapy Program. The defendant shall receive credit for 246 days for jail time served prior to sentencing.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Thomas B. Moritz for representing himself in this matter.


text:
    FROM: The District Court of the 7th Judicial District. County of Dawson.
    STATE OF MONTANA, Plaintiff, vs. Richard F. Owen, Defendant.
    NO. DC 96-036 DECISION
   On July 16,1997, it was ordered, adjudged and decreed that Richard Franklin Owen be imprisoned in the Montana State Prison for five (5) years for the offense of Deceptive Practices, a felony by common scheme. If the Department of Corrections places the defendant on any future probation, the defendant shall comply with the terms of probation as stated in the July 16, 1997 judgment.

DATED this 10th day of November, 1997.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Richard F. Owen for representing himself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Gordon Plainbull, Defendant.
    NO. DC 96-805 DECISION
   On July 14, 1997, it was ordered, adjudged and decreed that on Count I: Driving or in Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol (Felony) the said Gordon Plainbull be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of five (5) years; 2. On Count II: Driving After Having Been Adjudged an Habitual Traffic Offender (Misdemeanor) the defendant be punished by imprisonment in the Yellowstone County Detention Facility, in the City of Billings, Montana, for the term of three (3) months to run consecutively with Count I of this criminal cause; 3. On Count III: Operating a Motor Vehicle Without Liability Insurance in Effect (Misdemeanor) the defendant be punished by imprisonment in the Yellowstone County Detention Facility, in the City of Billings, Montana, for the term of three (3) months to run consecutively with Count I of this criminal cause and to run concurrently with Count II of this criminal cause. On Count IV: Leaving the scene of a vehicle accident (Misdemeanor) the defendant be punished by imprisonment in the Yellowstone County Detention Facility, in the City of Billings, Montana, for the term of three (3) months to run consecutively with Count I of this criminal cause and to run concurrently with Counts II and III of this criminal cause; Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for three (3) months. It is further ordered that additional special conditions shall apply as stated in the July 14, 1997judgment.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 10th day of November, 1997.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive. After careful consideration, it is fhe unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Gordon Plainbull for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Robert E. Price, Jr., Defendant.
    NO. 12538 DECISION
   On August 11,1997, it was the judgment of the Court that Robert Edgar Price, Jr. be and Robert Edgar Price, Jr., is hereby committed to the Department of Corrections for a term of five (5) years on Count I for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the judgment of the Court that Robert Edgar Price, Jr., be and Robert Edgar Price, Jr., is hereby sentenced to a term of six (6) months on Count II in the Missoula County Jail in Missoula, Montana. The sentences shall run concurrently with each other. It is the recommendation of the Court that the defendant be screened for intensive supervision program or a pre-release program. That, however, two (2) years of defendant’s sentence on Count I is hereby suspended on terms and conditions as stated in the August 11,1997 judgment. Defendant shall receive credit for time served at Missoula County Jail from February 1, 1997, through date of sentencing, August 11, 1997, in the amount of one hundred ninety-two (192) days.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to'proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence, imposed by the District Court is inadequate or excessive.

DATED this 10th day of November, 1997.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. This offense was committed before the new DUI law took effect which was May 2,1997.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Robert Price for representing himself in this matter.


text:
    FROM: The District Court of the 20th Judicial District. County of Sanders.
    STATE OF MONTANA, Plaintiff, vs. Roger Dean Spotted Eagle, Defendant.
    NO. DC 96-47 DECISION
    DATED this 10th day of November, 1997.
   On February 25, 1997, it was the judgment of the Court that the defendant Roger Dean Spotted Eagle is hereby sentenced to a term of five (5) years in the Montana State Prison for the offense of Persons Under the Influence of Alcohol or Drugs (Fourth Offense), a felony. That, however, three (3) years of defendant’s sentence is hereby suspended on terms and conditions as stated in the February 25, 1997 judgment. The defendant shall receive credit for nineteen (19) days time already served in the Sanders County Jail as of the date of this Judgment.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further aclvised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for review of sentence shall be dismissed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.

      STATE OF MONTANA, Plaintiff, vs. Joseph Villalobos, Defendant.
    NO. DC 89-95 DECISION
    DATED this 10th day of November, 1997.
   On July 23, 1997, it was ordered that the suspended sentence heretofore entered on November 8,1989 for the offense of Burglary, a Felony, as specified in MCA45-6-204, is revoked. It is further ordered that the defendant shall be punished by confinement in the Montana State Prison for a term often (10) years, with six (6) years suspended. The defendant shall receive credit for time served on this revocation, which as of the date of this Judgment totals fifty-four (54) days. The defendant shall not receive credit for any other elapsed probationary time due to his violations of his probation. The Court recommends that the defendant not be considered eligible for parole until he has successfully completed chemical dependency treatment at the Montana State Prison. The Court further orders that the suspended portion of the sentence shall be upon conditions as stated in the July 23, 1997 judgment.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that.there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Joseph Villalobos for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Mark S. Wilson, Defendant.
    NO. 12434 DECISION
   On March 19, 1997, it was the judgment of the Court that Mark Sloan Wilson be and is hereby committed to the Department of Corrections for a term of ten (10) years on each count for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. The sentences shall run concurrently with each other and concurrently with the sentence imposed in Cause No. 12385. It is the recommendation of the Court to the Department of Corrections that the defendant be placed in a program where they deem appropriate. It is the recommendation of the Court that prior to the defendant becoming eligible for parole or early release that the defendant make restitution to all the victims in this case. It is also the recommendation of the Court that the defendant not be allowed to enroll in any higher education projects until such time as full restitution has been made to all victims. It is the recommendation of the Court that as conditions of any parole or early release that the defendant abide by all of the terms and conditions as stated in the March 19, 1997 judgment. Defendant shall receive credit for time served at Missoula County Jail from October 10,1996, through October 11,1996; from December 9,1996, through December 23,1996, in the amount of seventeen (17) days. It is further ordered that as restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victims.

DATED this 10th day of November, 1997.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Mark S. Wilson for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Mark S. Wilson, Defendant.
    NO. 12385 DECISION
   On March 19, 1997, it was the judgment of the Court that Mark S. Wilson be and Mark S. Wilson is hereby committed to the Department of Corrections for a term of ten (10) years on Count I for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the judgment of the Court that Mark S. Wilson be and Mark S. Wilson is hereby sentenced to a term of six (6) months each on Count II and III in the Missoula County Jail in Missoula, Montana, that, however, the defendant’s sentences are hereby suspended on terms and conditions as stated in the March 19,1997 judgment. The sentences shall run concurrently with each other and concurrently with the sentence imposed in Cause No. 12434. It is the recommendation of the Court that prior to the defendant becoming eligible for parole or early release that the defendant make restitution to all the victims in this case. It is also the recommendation of the Court that the defendant not be allowed to enroll in any higher education projects until such time as full restitution has been máde to all victims. It is the recommendation of the Court that as conditions of any parole or early release that the (defendant abide by all of the terms and conditions as stated in the March 19, 1997 judgment. Defendant shall receive credit for time served at Missoula County Jail from October 10,1996, through October 11,1996; from December 9,1996, through December 23,1996, in the amount of seventeen (17) days. It is further ordered that as restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victim. The restitution shall be disbursed to Richard Haines, 914 Sherwood, Missoula, MT 59802, in the amount of Twenty-five Dollars ($25.00).

DATED this 10th day of November, 1997.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Mark S. Wilson for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Joseph A. Wilson, Defendant.
    NO. CDC 94-085 DECISION
   On August 6, 1997, it was therefore ordered, adjudged and decreed that the defendant’s suspended sentence is revoked and defendant is sentenced as follows: Count II: Assault, a Felony, to the Montana State Prison for a period of five (5) years. Count IV: Criminal Possession of Dangerous Drugs with Intent to Sell, a Felony,-'to the Montana State Prison for a period of five (5) years. Sentences are to run consecutively with no credit for elapsed time. All conditions in the original sentence dated February 5, 1996 are to remain in effect.

DATED this 10th day of November, 1997.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended so that the sentences run concurrently instead of consecutively. The time will remain the same.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

TJie Sentence Review Board wishes to thank Joseph Wilson for representing himself in this matter.


author: JUSTICE LEAPHART JUSTICE NELSON JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DENNIS STRAND, Defendant and Appellant.
    No. 96-366.
    Argued October 1, 1997.
    Submitted October 29, 1997.
    Decided December 16, 1997.
    54 St.Rep. 1333.
    286 Mont. 122.
    951 P.2d 552.

      For Appellant: Stephen J. Nardi (argued); Sherlock & Nardi, Kalispell.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Tammy Plubell (argued), Assistant Attorney General, Helena; Glen Neier, Kalispell City Attorney, Kalispell.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant Dennis Strand (Strand) appeals from the final judgment and order of the Eleventh Judicial District Court, Flathead County. The District Court accepted Strand’s conditional plea of guilty to the charge of driving under the influence of alcohol and sentenced him to 60 days in jail, all but one suspended, upon certain conditions, including his payment of a $350 fine. We reverse and remand.

Strand raises two issues on appeal. We determine that issue 1 is dispositive and, therefore, we need not address issue 2. Therefore, we address whether Strand’s due process rights were violated when the arresting officers failed to inform him that he had the right to obtain an independent blood test.

Factual and Procedural Background

In April 1995, Strand was stopped by two officers of the Kalispell Police Department on suspicion of driving under the influence of alcohol. The officers noted that Strand had slurred speech, bloodshot eyes, and smelled of alcohol. Strand had to lean against his vehicle for balance, could not recite the alphabet correctly, and had difficulty following instructions. The officers arrested Strand for driving under the influence of alcohol.

At the Kalispell Police Department, one of the officers said to Strand, “I need you to take a breath test.” Strand consented and submitted to the BAC test. The results indicated that Strand had a BAC of .215. Pursuant to the express policy of the Kalispell Police Department, officers read the implied consent advisory form only when the arrested person first refuses to submit to a BAC test. Because Strand consented to the test, neither officer read Strand an implied consent advisory form before asking him to submit to the test or before administering the test. Thus, Strand was not advised that he could obtain an independent blood test for the purpose of determining his blood alcohol concentration.

Strand was charged in the Kalispell City Court with driving under the influence of alcohol, a misdemeanor. Subsequently, he filed a motion to dismiss, arguing that the State had violated his right to due process under the U.S. and Montana constitutions by failing to inform him that he had a right to obtain an independent blood test. The City Court held that Strand’s due process rights were violated because he was not advised of his right to obtain an independent blood test and he did not knowingly and voluntarily agree to take a BAC test. The City appealed to the District Court. Strand again filed a motion to dismiss; however, the District Court denied the motion and accepted Strand’s conditional plea of guilty to the charge of driving under the influence of alcohol.

Standard of Review

The issue of whether Strand’s due process rights were violated is a question of law. This Court’s standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. State v. Miller (1996), 278 Mont. 231, 233, 924 P.2d 690, 691; Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Discussion

I

Every person who operates a motor vehicle in the state of Montana has impliedly consented to submit to a blood or breath test for the purpose of determining the presence or amount of alcohol or drugs in the body. Section 61-8-402(1), MCA. If a person refuses to submit to the test designated by the arresting officer, “a test may not be given, but the officer shall, on behalf of the department, immediately seize the person’s driver’s license.” Section 61-8-402(4), MCA (1993). In addition to the test administered at the direction of the officer, a person may obtain an independent test for determining any measured amount or detected presence of alcohol in the person’s system. Section 61-8-405(2), MCA. The right to obtain an independent blood test is both statutory and required by due process. See § 61-8-405(2), MCA; State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155.

The Kalispell Police Department uses an implied consent advisory form to explain the substance of Montana’s implied consent statutes to the accused. However, the express policy of the department requires that officers not read the form unless or until the accused refuses to submit to the test designated by the officer. If the accused agrees to submit to the test, the officers do not read the consent form, and the accused is never informed of his or her right to obtain an independent blood test. In this case, the arresting officer told Strand that he “needed” him to take a BAC test, and Strand immediately agreed. Thus, at no time was Strand read an implied consent advisory form or otherwise made aware of the implied consent laws of Montana.

Strand argues that the State violated his right to due process of law. He contends that by adopting a procedure by which he was not informed of his right to obtain an independent blood test unless he refused the officer’s test, the Kalispell Police Department, through its rules and regulations, denied him his right to obtain exculpatory evidence in direct contravention of this Court’s holding in State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155. The State argues that Swanson did not create an affirmative duty to inform a defendant of his statutorily-created right to obtain an independent test and that the officers’ failure to do so did not amount to a violation of due process.

In Swanson, the defendant refused to submit to a breath test, as requested by the arresting officer, but asked to be taken to the hospital for a blood test. Swanson, 722 P.2d at 1156. After blood was drawn, the officer gave the sample to the defendant, informed him that it was his responsibility to have the sample analyzed, and took the defendant to the police station. Swanson, 722 P.2d at 1156. During booking, the sample was taken from the defendant with the rest of his personal belongings and left on a counter in the booking room for two days. Since the blood sample was not properly refrigerated, it could not be analyzed, and the defendant’s BAC was never determined. Swanson, 722 P.2d at 1156.

On appeal, the defendant argued that he was denied due process because the State had deprived him of a reasonable opportunity to gather exculpatory evidence. Swanson, 722 P.2d at 1157. This Court held that an accused has a constitutional due process right to obtain exculpatory evidence. Swanson, 722 P.2d at 1157. Further, we held that when a crime involves intoxication, the right to gather exculpatory evidence includes “a right to obtain a sobriety test independent of that offered by the arresting officer,” regardless of whether the accused agrees to submit to the officer’s test. Swanson, 722 P.2d at 1157. We determined that the defendant’s blood sample was taken from him as part of a routine inventory search and held that “[w]hile the police have no duty to assist an accused in obtaining independent evidence of sobriety, they cannot frustrate such an effort through either affirmative acts or their rules and regulations.” Swanson, 722 P.2d at 1158.

We agree with the State that this Court’s holding in Swanson did not go so far as to create an affirmative duty to inform an accused of his right to an independent blood test. Rather, this Court recognized that an accused has a constitutional due process right to obtain exculpatory evidence and held that the State cannot act in a manner or adopt any procedure that frustrates this effort. We now take the next step and hold that due process requires that the arresting officer inform the accused of his or her right to obtain an independent blood test, regardless of whether the accused consents to the test designated by the officer.

While some citizens of Montana may be aware of the obligation they undertake by driving — to consent tó a blood or breath alcohol test or forfeit their licenses — most are not aware of their corresponding right to obtain an independent blood test. Because of the evanescent character of blood alcohol evidence, the decision to obtain an independent test must be made in a timely fashion. Montano v. Superior Court (Ariz. 1986), 719 P.2d 271, 275. Therefore, unless the defendant is apprised of this right while the blood can still be analyzed, the right is rendered meaningless.

The accused must be informed of the right to obtain an independent blood test at the time of the arrest. A person accused of driving under the influence of alcohol does not have a right to counsel before submitting to a BAC test and, therefore, is foreclosed from conferring with counsel about his or her rights and duties under Montana’s implied consent laws until after consent to the test has been given or withheld. State v. Armfield (1984), 214 Mont. 229, 693 P.2d 1226. Therefore, the arresting officer is the only person in a position to inform the defendant of this right, and we now hold that the officer has an affirmative duty to do so.

The current policy of the Kalispell Police Department is to read an implied consent advisory form to an accused only if he or she has refused to submit to a BAC test. Although the substance of the implied consent advisory form is not before us, the State concedes that had Strand been read this form, he would have been advised of his right to obtain an independent blood alcohol test. The State admits that:

it would have been preferable for the officer to read Strand the contents of the implied consent statutes even though Strand immediately agreed to submit to the breath test when the officer said: “I need you to take, a breath test.” If the officer had read the contents of the statutes, he undoubtedly would have informed Stand of his right to obtain an independent test at his own expense.

We determine that it is not only preferable for the officer to advise all persons who have been arrested for driving under the influence of their right to obtain an independent blood test, but also required by due process. Before a person can make an intelligent decision as to whether to request an independent blood test, he or she must first be made aware that such a test is an option.

II

Having determined that Strand’s due process rights were violated, we must determine the appropriate remedy for this violation. Strand urges us to reverse the District Court’s denial of his motion to dismiss. The State argues that the more appropriate remedy is to suppress the results of the BAC test. We agree with the State that the appropriate remedy is to suppress the results of the BAC test, which were obtained without first advising Strand of his right to an independent blood test.

As discussed in issue one, Montana’s implied consent statutes set forth the obligations of a person operating a motor vehicle in this state and that person’s corresponding rights. See §§ 61-8-401 through-422, MCA. The dissent questions the wisdom of suppressing the BAC test results because they were not obtained illegally. However, breathalyzer evidence is unlike most other evidence in that the State’s rights to obtain such evidence and to suspend the person’s license if he or she refuses the test are derived from statutes, the implied consent law. See §§ 61-8-401 through -422, MCA. That same statutory scheme provides that an accused has a corresponding right to obtain an independent blood test. Section 61-8-405(2), MCA. Fairness thus dictates that the State not be allowed to utilize scientific evidence of intoxication (i.e., tests of a person’s blood or breath) if, through omission of the State, the accused is not advised of the right to obtain his or her own scientific evidence of blood alcohol concentration. Juries give great weight to the results of BAC tests, and, thus, “the state cannot be allowed to use evidence which the defendant is unable to rebut because [he] was not apprised of [his] right to independent testing.” State v. Turpin (Wash. 1980), 620 P.2d 990, 993.

The dissent argues that although Strand’s rights were violated when the officers failed to advise him of his right to obtain an independent blood test, no prejudice resulted because Strand did not challenge the evidence of the officers’ observations, the results of the field sobriety tests, or the BAC test results, all of which indicated that Strand was intoxicated. This argument assumes that the sole value of an independent blood test is to rebut the State’s evidence. While a blood test may certainly have potential as rebuttal-type evidence, it can also have independent value as compelling scientific evidence, regardless of the evidence introduced by the State.

In other words, it is entirely possible that despite his choosing not to challenge the officers’ observations as to breath, eyes, and gait or the results of field sobriety tests, a defendant might produce a blood test conclusively showing that his blood alcohol concentration was below the legal limit. Irrespective of whether Strand challenged the State’s evidence, he was prejudiced when the officer failed to advise him of his right to obtain potentially exculpatory evidence. Thus, we determine that Strand must be given the opportunity for a new trial without the BAC test results.

We recognize that in Swanson, 722 P.2d at 1158, this Court held that “ [dismissal of the case with prejudice is the appropriate remedy because the State’s action precluded a fair trial by preventing Swanson from gathering exculpatory evidence.” However, that case differs factually from the instant case and can be distinguished. Unlike Strand, Swanson had refused to take the BAC test. Swanson, 722 P.2d at 1156. The State did not obtain any scientific evidence of intoxication, and, thus, there was no such evidence to suppress. However, in cases in which the State succeeds in obtaining a blood or breath test pursuant to the implied consent law, the appropriate remedy for the State’s failure to advise an accused of the corresponding right to obtain an independent blood test is to suppress the results of the State’s test. It should be noted that our rationale for suppressing the BAC test results has no application outside the context of a statutory scheme granting both the State and the defendant corresponding rights to obtain a specific form of evidence.

The dissent also notes that § 61-8-405(2), MCA (1993), provides that a person’s failure or inability to obtain an additional blood test “does not preclude the admissibility in evidence of the test or tests taken at the direction of a peace officer.” We find that this provision is applicable only where the defendant’s failure or inability to obtain a blood test was not the result of an action or omission by the State.

For the above-stated reasons, we reverse the decision of the District Court, order the results of the BAC test suppressed, and remand for a new trial.

JUSTICES HUNT, REGNIER and TRIEWEILER concur.

JUSTICE NELSON

concurs in part and dissents in part.

I concur in our discussion and analysis of issues 1 and 2 under 1.1 dissent, however, with our discussion and with the result reached under II.

Having determined that Strand’s right to due process was violated, our next focus, contrary to the majority opinion, should not be on a determination of the appropriate remedy for this violation, but, rather, we should decide whether the defendant has demonstrated any prejudice by reason of the violation of this constitutional right. I conclude that no prejudice has been shown on the record here, and, furthermore, that no legal basis exists on which to suppress the results of the BAC test or to remand for a new trial.

It is black-letter law that “[a] cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.” Section 46-20-701(1), MCA. Moreover, we routinely hold that a criminal conviction will not be reversed unless the error prejudiced the substantial rights of the defendant; that when the record is sufficient to establish the guilt of the defendant, a new trial will not be granted even though there was error, unless it clearly appears that the error complained of actually impaired the defendant’s right to a fair trial; that prejudice in a criminal case will not be presumed; and that the defendant must demonstrate prejudice from the record. State v. Huerta (1997), [285 Mont 245] 947 P.2d 483, 487 (citations omitted). We have referred to § 46-20-701, MCA, and to these well-settled principles of criminal law in cases, too numerous to cite, when affirming convictions where error is shown — even where that error is of constitutional proportion. For example, we recently held in Huerta that a violation of defendant’s due process rights involving several different trial issues did not warrant reversal where defendant failed to demonstrate prejudice. Huerta, 947 P.2d at 485. We have defined exculpatory evidence as that which “tends to clear the accused of guilt and vitiate the conviction.” State v. Hatfield (1995), 269 Mont. 307, 311, 888 P.2d 899, 902 (citations omitted). While undeniably, the accused is entitled to discover and to gather such evidence, we have also placed upon the defendant a duty to show that, where his right to obtain exculpatory evidence has been violated, there is a reasonable probability that had the information been provided, the result of the trial or sentencing would have been different. Kills on Top v. State (1995), 273 Mont. 32, 42, 901 P.2d 1368, 1374-75 (citing Kyles v. Whitley (1995), 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490, 506). See also State v. Cox (1994), 266 Mont. 110, 118-19, 879 P.2d 662, 667-68; State v. West (1992), 252 Mont. 83, 87, 826 P.2d 940, 943 (quoting California v. Trombetta (1984), 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422); and State v. Halter (1989), 238 Mont. 408, 412, 777 P.2d 1313, 1316 (quoting Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2533-34).

In the case at bar, the record is completely devoid of even a minimal demonstration by Strand that, had he obtained the independent test to which he was entitled, the evidence would have been, in fact, exculpatory — i.e., that a reasonable probability existed that it would have cleared him of guilt or vitiated his conviction. Strand never challenged the arresting officer’s pre-arrest and post-arrest observations indicating that he was intoxicated; he never challenged the field tests which showed the same thing; and he never challenged the results of the BAC test which demonstrated that he was legally intoxicated. In fact, at oral argument, Strand conceded that he could still be convicted of DUI without any test results whatsoever based on other evidence of intoxication.

Had Strand shown that any part of the overwhelming evidence of his intoxication was subject to dispute or attack, he would have a legitimate argument that a reasonable probability existed that the evidence obtained by an independent test would have been exculpatory and that without such evidence his defense was prejudiced. Absent a record of such a challenge, however, there is simply no demonstration here that an independent test would have proved anything other than what has already been clearly shown — i.e., that Strand was legally intoxicated. Nothing in the record of this case shows that a reasonable probability existed that the independent test would have been, in fact, exculpatory. Thus, while Strand’s right to due process was violated, he failed to demonstrate prejudice by reason thereof. Accordingly, his conviction should be affirmed.

That said, I also disagree with our decision that the appropriate remedy for the violation of Strand’s right to due process is suppression of the results of the BAC test he voluntarily took. Suppression of evidence is, of course, mandated where evidence has been obtained by an unlawful search and seizure. Section 46-13-302, MCA. We have recently made it clear that “suppression” is a term used where otherwise relevant evidence is excluded because it has been illegally obtained. See State v. Strizich (1997), [286 Mont. 1], 952 P.2d 1365.

Absolutely nothing in the record of the case at bar indicates that the BAC test which Strand took at the station-house was obtained unlawfully or illegally. In fact, the record clearly demonstrates the contrary. In accordance with the implied consent statute, § 61-8-402, MCA, Strand took the breath test when requested to do so by the arresting officer. No evidence shows that the gathering of this evidence was improper, unlawful, illegal or in violation of any of Strand’s constitutional rights.

Other than State v. Turpin (Wash. 1980), 620 P.2d 990, the majority cites no authority for the proposition that evidence can be suppressed notwithstanding that the law was not violated in the gathering of that evidence and where the competency of the evidence itself was not challenged. I do not believe that even Turpin is authority for that principal as a general rule, given that the court’s decision in that case was rendered in the context of a Washington statute that affirmatively required the peace officer to advise the DUI arrestee of his right to obtain additional chemical tests. Turpin, 620 P.2d at 992. No such statutory obligation for giving advice exists in Montana’s statutes. See §§ 61-8-402 and 61-8-405, MCA. In fact, § 61-8-405(2), MCA (1993), specifically provided that “[t]he failure or inability to obtain an additional test by a person does not preclude the admissibility in evidence of the test or tests taken at the direction of a peace officer. [Emphasis added.]”

While punishing the police by throwing out legally obtained, competent evidence because the officer failed to advise the defendant of his right to obtain independent evidence of the same type may facially have a sort of “eye for an eye” appeal, such a novel approach is not only legally unsound, but also sets a very dangerous precedent, indeed. Does a defendant now have an argument that the prosecution should not be permitted to use evidence legally obtained from a crime scene or evidence lawfully taken from the person of a victim because he, the defendant, though having as much right to gather possibly exculpatory, countervailing evidence of the same sort, was unable to do so (a) because the police never told him he had that right and (b) because by the time he learned of this right, the crime scene had been cleaned up or otherwise contaminated or because evanescent evidence from the victim’s person has long since disappeared?

The bottom line is that if Strand’s constitutional right to due process was violated in this case (and I agree that it was) and if he demonstrated that the violation of this constitutional right prejudiced his defense, then the appropriate remedy is reversal of his conviction and dismissal of the charges against him (as we correctly ruled in Swanson), not the suppression of legally obtained evidence and remanding for a new trial without that evidence.

Strand was obligated to show prejudice — i.e., that had he been timely advised of his right to obtain an independent test, he not only would have taken the test, but also that a reasonable probability existed that the test results would have been exculpatory. Here, since Strand failed to demonstrate any prejudice by reason of the violation of his right to due process, his conviction should be affirmed.

CHIEF JUSTICE TURNAGE joins in the foregoing concurrence and dissent.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion holding that due process requires an arresting officer to inform a DUI arrestee of the right to obtain an independent blood test.

I agree that it is preferable for law enforcement officers to advise DUI arrestees of their statutory right to an independent test. I disagree that the failure to do so rises to a constitutional due process violation. Moreover, I note that the Court cites not a single case from another jurisdiction in which such a holding has been made. Indeed, the only case to which this Court was cited for such a proposition, Montano v. Superior Court Pima County (Ariz. 1986), 719 P.2d 271, subsequently was limited to its specific facts. See, e.g., State v. Superior Court in and for County of Yavapai (Ariz. App. 1994), 878 P.2d 1381.

I would follow the North Dakota Supreme Court’s lead and hold that a failure to inform a DUI arrestee of the right to an independent test “does not rise to the level of a constitutional denial of due process.” See State v. Rambousek (N.D. 1984), 358 N.W.2d 223, 230. I dissent from the Court’s holding to the contrary.