STATE v WELDELE
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No. 90-414 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- BRIAN TRENT WELDELE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Jeffrey Sherlock, Judge presiding. COUNSEL OF RECORD: For Appellant: Charles A. Graveley, Helena, Montana. For Respondent: Hon. Marc Racicot, Attorney General, State of Montana, Helena, Montana; Michael J. Rieley, Assistant City Attorney, City of East Helena, Luxan & Murfitt, Helena, Montana. Submitted: March 28, 1991 Decided : Filed: STA-rE GF i i ~ ~ e i + ~ i ~ i i ~ May 7, 1991 Chief Justice J. A. Turnage delivered the Opinion of the Court. Brian Trent Weldele appeals an order and a judgment of the First Judicial District, Lewis and Clark County, which denied his motion to dismiss and found him guilty of driving while under the influence of alcohol (third offense), a misdemeanor. The District Court sentenced Weldele to the following: one year imprisonment with thirty days suspended, a $1,000.00 fine, a $10.00 mandatory surcharge fee, court costs, suspended his driver's license, and ordered him to attend the ACT program through Boyd Andrew Care Center. We affirm. The sole issue presented on appeal is a factual dispute: following his arrest for driving under the influence of alcohol, did Weldele request a blood test during the booking process, and did the arresting police officer deny him this right? A videotape of the Weldelels booking process, although poor in quality, is consistent with the arresting police officer's testimony that although Weldele once inquired about a blood test, he never at any time requested that a blood test be performed. We therefore agree with the District Court and hold that, based upon the videotape and the testimony of the arresting police officer, Weldele did not request a blood test during the booking process and accordingly, was not denied his right to a blood test. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of this Court and by a report Publishing Company. Let remittitur issue forthwith. We concur: of its result to West IN THE SUPREME COURT OF THE STATE OF MONTANA No. 90-414 THE STATE OF MONTANA, -- - Plaintiff and Respondent, -- - v. BRIAN TRENT WELDELE, Defendant and Appellant. 1 1 1 ;1 - - - -- 1 1 1 On May 7, 1991, the Opinion of this Court was issued in the above-entitled appeal. It appearing that there is an error in said Opinion, IT IS ORDERED that the following language found at page 2 of the Opinion of this Court dated May 7, 1991, . . . one year imprisonment with thirty days suspended, . . I 8 be amended to read, It. one year imprisonment with all but thirty days suspended, . . . The Clerk is directed to mail a true copy of this order to coun.sel of record for the respective parties. DATED this ) day of May, 1991.
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