State v. Hesser

417 Mont. 84

STATE OF MONTANA, Plaintiff and Appellee,

v.DONALD AARON HESSER, Defendant and Appellant.

No. DA 23-0356.

Submitted on Briefs May 1, 2024.

Decided June 25, 2024.

2024 MT 134.

417 Mont. 84.

____P.3d___.

Appeal from the District Court of Cascade County.

Eighth Judicial District Court, Cause No. BDC-21-546.

Honorable Elizabeth A. Best, Judge.

There was probable cause under Mont. Const. art. II, § 11 to believe appellant committed the offense of DUI because there were facts in conjunction with appellant’s prior DUI convictions, such as an unexplainable serious single-vehicle motorcycle crash during the daytime when appellant drifted off a dry and well-paved road after failing to negotiate a slight left turn.

Affirmed.

For Appellant: Nathan J. Hoines, James Olsen, Homes Law Office, P.C, Great Falls.

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena; Joshua A. Racki, Cascade County Attorney, Stephanie Fuller, Deputy County Attorney, Great Falls.

JUSTICE McKINNON delivered the Opinion of the Court.

¶1 Donald Aaron Hesser, Jr. (Hesser) pled guilty in the Eighth Judicial District Court, Cascade County, to felony driving under the influence (DUI). As part of his plea agreement, Hesser reserved his right to appeal the denial of his motion to suppress. The execution of his sentence was stayed pending the outcome of this appeal.

¶2 We restate the issues on appeal as follows:

1. Was there probable cause to issue an investigative subpoena to obtain Hesser’s blood sample?

2. Was law enforcement authorized under § 61-8-402, MCA,¹ to request a blood sample prior to obtaining an investigative subpoena?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On May 4, 2021, Montana State Trooper Daniel Arnold (Arnold) was dispatched to a scene involving a motorcycle accident in Cascade County. The driver of the motorcycle—later identified as Hesser—was found by first responders laying in a ditch in critical condition and was taken by helicopter to Benefis Health Systems for treatment. The weather was sunny, and the road was paved, dry, and in good condition. Investigation at the scene indicated Hesser was approaching a gradual lefthand curve when he drifted to the right and went off the road. There was no evidence indicating that Hesser had attempted to brake or correct his steering. Thus, law enforcement could not determine why Hesser had an accident.

¶4 At the time of the accident, it was thought that Hesser might not survive. However, upon arriving at the hospital, Trooper Arnold learned Hesser was expected to survive, though he remained unconscious, intubated, and severely injured. Trooper Arnold had previously determined Hesser’s identity and learned he had four DUI convictions.² After discovering medical staff had taken a blood sample from Hesser, Trooper Arnold requested they not discard it. On May 6, 2021, the State prepared an investigative subpoena for Hesser’s medical records and blood sample. Trooper Arnold presented the subpoena to the hospital, obtained the blood sample, and then sent the sample to the Montana State Crime Lab for testing. The test results showed Hesser’s blood alcohol content was .208.

¶5 In his motion to suppress, Hesser argued that Trooper Arnold lacked authority to apply for an investigative subpoena because, pursuant to § 46-4-301(3), MCA, only a prosecutor may obtain an investigative subpoena. Additionally, Hesser argued there was not sufficient probable cause set forth in the affidavit filed in support of the investigative subpoena. The State agreed that § 46-4-301(3), MCA, provided only a prosecutor could apply for an investigative subpoena but indicated that Deputy County Attorney Angela Payne had, in fact, applied for the subpoena. The State maintained that even if there was insufficient probable cause to grant the investigative subpoena, Trooper Arnold was still authorized to direct a blood draw pursuant to § 61-8-402, MCA, because Hesser was involved in an accident involving serious bodily injury and was incapable of withdrawing his consent.

¶6 In its order denying Hesser’s motion to suppress, the District Court noted that although Hesser argued Trooper Arnold had obtained the investigative subpoena, "the face of the document reflects that it was signed by Deputy County Attorney Payne." Therefore, it determined that while Trooper Arnold delivered the subpoena, a prosecutor was the one that sought it. The District Court also determined the investigative subpoena was supported by probable cause finding that Hesser was involved in a serious accident, the road and weather conditions showed no reason why the accident would have occurred, and Hesser had four prior DUI convictions.

¶7 Hesser appeals.³

STANDARD OF REVIEW

¶8 [1] This Court "review[s] a district court’s denial of a motion to suppress evidence for whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law." State v. Vegas, 2020 MT 121, ¶ 8, 400 Mont. 75, 463 P.3d 455 (citing State v. Ruggirello, 2008 MT 8, ¶ 15, 341 Mont. 88, 176 P.3d 252). "A court’s findings of fact are clearly erroneous if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed." Vegas, ¶ 8 (quoting Ruggirello, ¶ 15).

DISCUSSION

¶9 1. Was there probable cause to issue an investigative subpoena to obtain Hesser’s blood sample?

¶10 Hesser argues the affidavit filed in support of the investigative subpoena lacked sufficient probable cause to suspect Hesser of DUI because there was no mention of a smell of alcohol, Hesser had not admitted to consuming alcohol, there were no open containers found at the scene, and hospital staff had not reported signs that Hesser had consumed alcohol. Hesser maintains that besides the crash and his prior DUIs there was nothing to suggest Hesser was involved in a DUI. ¶11 [2] Section 46-4-301(3), MCA, provides:

In the case of constitutionally protected material, such as but not limited to medical records or information, a subpoena may be issued only when it appears upon the affidavit of the prosecutor that a compelling state interest requires it to be issued. In order to establish a compelling state interest for the issuance of such a subpoena, the prosecutor shall state facts and circumstances sufficient to support probable cause to believe that:

(a) an offense has been committed; and

(b) the information relative to the commission of that offense is in the possession of the person or institution to whom the subpoena is directed.

"Probable cause exists ‘where the facts and circumstances within an officer’s personal knowledge prove sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense.’ " State v. Kelm, 2013 MT 115, ¶ 25, 370 Mont. 61, 300 P.3d 687 (quoting State v. Ellington, 2006 MT 219, ¶ 16, 333 Mont. 411, 143 P.3d 119). In State v. Nelson, we explained that "[w]hen an investigative subpoena seeks discovery of protected medical records or information, the subpoena can be likened to a search warrant which must satisfy the strictures of the Fourth Amendment and Article II, Section 11 of the Montana Constitution. A search warrant can only issue upon a showing of ‘probable cause.’ " 283 Mont. 231, 243, 941 P.2d 441, 449 (1997). This Court "pay[s] great deference to a magistrate’s determination that probable cause exists to issue a search warrant, and we ‘draw all reasonable inferences possible to support the issuing magistrate’s determination of probable cause.’ " State v. Giacomini, 2014 MT 93, ¶ 11, 374 Mont. 412, 327 P.3d 1054.

¶12 In the affidavit filed in support of the investigative subpoena, Deputy Attorney Payne set forth several factors supporting the issuance of the subpoena:

On May 4, 2021, Donald Hesser was eastbound on Armington Road on a motorcycle. There was no inclement weather, the roads were dry, and the weather was sunny. Hesser was driving [] around a left-hand curve and drifted off the right road edge, where his motorcycle bottomed out and became airborne. Hesser never corrected. … Hesser does have three prior DUI convictions and is believed to have been intoxicated when this wreck occurred.

The affidavit thus noted several factors that supported probable cause to believe Hesser had committed the offense of DUI. First, at the time of the accident, it was daylight, sunny, the roads were dry, and there was no inclement weather. Second, the affidavit noted there was no evidence of any corrective action taken by Hesser. Finally, the affidavit noted that Hesser had prior DUI convictions. Thus, the affidavit established that Hesser was in a single-vehicle accident and nearly died; the accident was unexplainable because Hesser had drifted off the road for no reason; Hesser took no corrective action at all; and Hesser had a history of driving under the influence.

¶13 [3] Hesser claims that if we were to find this was enough to justify probable cause "any person with a prior DUI conviction who was in a crash and transported to the hospital would be subject to a violation of their constitutional rights." We recently addressed a similar contention regarding the role an offender’s criminal history has in justifying law enforcement’s action under the Fourth Amendment. In State v. Panasuk, 2024 MT 113, _____ P.3d _____, we held, in the context of reasonable suspicion to expand a stop, that "knowledge of a person’s prior criminal involvement is alone insufficient to give rise to the requisite reasonable suspicion" to support expansion of a stop. Panasuk, ¶ 22. However, we explained that "[w]hile knowledge of prior criminal history alone is insufficient to constitute particularized suspicion, knowledge of prior criminal activity in conjunction with other factors that do foster a reasonable suspicion of current criminal activity can...