August 4 2015
DA 14-0275
Case Number: DA 14-0275
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 223N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOHN HARVEY HOOTS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 12-0477
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John Harvey Hoots (self-represented); Shelby, Montana
Wade Zolynski, Chief Appellate Defender, James Reavis, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General; Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Julie Patten,
Deputy County Attorney; Billings, Montana
Submitted on Briefs: July 15, 2015
Decided: August 4, 2015
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 John Harvey Hoots appeals the order and judgment of the Thirteenth Judicial
District Court, Yellowstone County, which sentenced him to 30 years at Montana State
Prison (MSP), and designated him a persistent felony offender, for the crime of operating
a motor vehicle with a blood alcohol concentration of 0.08% or more (DUI per se), a
felony. This charge was Hoots’ fourth felony charge for driving under the influence of
alcohol or drugs (DUI) and tenth lifetime DUI.
¶3 Hoots was arrested for DUI on July 31, 2012, after he drove away from a
confrontation with a neighbor, Daniel Belmarez. Belmarez saw Hoots drop his pants and
expose his genitals and buttocks while standing across the street from Belmarez’s house.
Belmarez yelled at Hoots to put his clothes on and called 911. Belmarez testified that
Hoots was visibly intoxicated. Hoots walked away, but later returned and began arguing
with Belmarez’s nephew. Belmarez, who was then inside with his mother, saw Hoots
gesture as if he was armed. Belmarez’s mother called 911 because she suspected Hoots
had a gun.
¶4 Officers Ross, Becker, and Frank responded to the call. The officers and
Belmarez saw Hoots drive away in a pickup truck. The officers followed Hoots and
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pulled him over. Believing Hoots was armed, the officers approached the pickup with
guns drawn, and ordered Hoots to exit the pickup. Hoots smelled of alcohol, and his
speech was slurred. Hoots was unarmed, and the officers did not find a weapon in the
pickup. The officers discovered Hoots’ driver’s license was revoked, and they arrested
Hoots and took him to the Yellowstone County Detention Facility’s DUI processing
center for further investigation.
¶5 Officer Ross conducted the DUI investigation at the DUI processing center,
accompanied by Officers Frank and Becker. Hoots was given the Implied Consent
Advisory, which includes the right to have an independent blood test completed by a
doctor or a nurse after officers complete their evaluation. Hoots refused to take a breath
test, and requested an independent blood test. After the Implied Consent Advisory was
completed, Hoots stated, “But I request a blood test from Deaconess or St. Vincent’s.”
¶6 Officer Ross applied for a search warrant for a sample of Hoots’ blood. While
Officer Ross was applying for the warrant, Hoots stated, “I volunteer one. I request one.
Can I have a phone book?” Officer Becker, who was filming the evaluation, refused to
give Hoots a phone book. Hoots stated again, “I’d like a blood test.” Officer Ross
returned and explained that he had a warrant for a blood test. Hoots responded, “Cool.
Can I have a phone book to call my doctor?” Officer Ross refused the request for a
phone book. Hoots stated, “No phone call? No lawyer?” and Officer Becker responded,
“Not right now.” A blood sample was completed pursuant to the search warrant by Chris
Dumontier, LPN, with assistance from other officers. Hoots stated that his blood sample
was “going to blow the scale right out the roof.”
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¶7 Officer Ross then advised Hoots of his Miranda rights. Hoots declined to be
interviewed and requested an attorney. Officer Ross said, “Let’s get you next door and
get you booked in.” After Hoots was handcuffed, the following exchange took place:
Officer Ross: Mr. Hoots, we’re going to go right this way, out the way we
came. We’ll get you booked in, and you can make that phone call that
you’ve been looking for.
Hoots: Oh, you let me call a lawyer?
Officer Ross: You can call whoever you want.
¶8 Hoots argues on appeal that he was denied his right to an independent blood test.
Hoots concedes this issue was not properly raised below and therefore requests we
exercise plain error review of this issue. This Court may discretionarily review claimed
errors that implicate a criminal defendant’s fundamental constitutional rights, even if no
contemporaneous objection is made, where failing to review the claimed error at issue
may result in a manifest miscarriage of justice, may leave unsettled the question of the
fundamental fairness of the trial or proceedings, or may compromise the integrity of the
judicial process. State v. Taylor, 2010 MT 94, ¶ 14,
356 Mont. 167,
231 P.3d 79.
¶9 Hoots argues that the State’s failure to allow him to obtain an independent blood
test was a violation of his due process right to obtain exculpatory evidence, and therefore
the charge should be dismissed according to § 61-8-405(2), MCA, and State v. Swanson,
222 Mont. 357,
722 P.2d 1155 (1986). Under § 61-8-405(2), MCA: “In addition to any
test administered at the direction of a peace officer, a person may request that an
independent blood sample be drawn by a physician or registered nurse.” In Swanson, a
defendant arrested for suspected DUI obtained an independent blood test from a
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physician, but the police did not properly refrigerate the sample making it unusable for
determining blood-alcohol content. Swanson, 222 Mont. at 359-60,
722 P.2d at 1156-57.
We held that the destruction of the sample by the police was a violation of Swanson’s due
process right to obtain exculpatory evidence, and therefore we instructed the district court
to dismiss the charge against Swanson. Swanson,
222 Mont. at 362,
722 P.2d at 1158.
¶10 We noted in Swanson 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,
222 Mont. at 361-62,
722 P.2d at 1158. We have also held, however, that “the rule in Swanson will apply only
if the defendant can establish that he made a timely request for an independent test and
that a law enforcement officer unreasonably impeded his right to obtain the test.” State v.
Sidmore,
286 Mont. 218, 234,
951 P.2d 558, 568 (1997).
¶11 As soon as Officer Ross finished processing Hoots, he told Hoots, “You can make
that phone call that you’ve been looking for.” In response to Hoots’ inquiry, “Oh, you let
me call a lawyer?” Officer Ross responded, “You can call whoever you want.” Hoots did
not contact a doctor or nurse to obtain an independent blood test, although he could have
done so. The officers did not unreasonably impede Hoots’ right to an independent blood
test. Therefore, there was no violation of Hoots’ fundamental due process right to obtain
exculpatory evidence. This case is not appropriate for application of the plain error
doctrine.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
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of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. Having reviewed the briefs and the record
on appeal, we conclude that the Appellant has not met his burden of persuasion.
Affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE
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