Implied Consent Does Not Bar Warrant-Based Blood Draws for First-Time DUI Suspects: State v. Clinkenbeard (Mont. 2025)

Introduction

In State v. Clinkenbeard, 2025 MT 54, the Supreme Court of Montana clarified the relationship between Montana’s implied consent statute and the State’s general search-warrant authority in DUI investigations. The central question was whether § 61-8-1016(4)(a), MCA, which restricts administration of a chemical test after a suspect refuses, prohibits law enforcement from seeking a judicial search warrant to obtain a blood sample from a first-time DUI suspect who refuses testing. The Court held it does not: subsection (5) of the same statute expressly excludes warrant-based testing from the implied consent scheme, leaving intact law enforcement’s authority to obtain a warrant under § 46-5-221 and § 46-5-224, MCA, upon probable cause—even for first-time offenders.

The case arose from a traffic stop in Ravalli County, where Kyler Austin Clinkenbeard was cited for speeding and suspected of DUI. After he refused a blood test, a trooper obtained a search warrant, and a subsequent blood draw showed a 0.101 BAC. Clinkenbeard moved to suppress the blood evidence, arguing, among other things, that the implied consent statute barred the warrant because he was a first-time offender with no prior refusals. The Justice Court and District Court denied suppression; he pled guilty with a reservation to appeal the suppression ruling. The Montana Supreme Court affirmed.

Summary of the Opinion

The Court (McKinnon, J.) affirmed denial of the suppression motion and the conviction. It held:

Section 61-8-1016(5), MCA, unambiguously provides that the implied consent statute “does not apply” to tests “performed pursuant to a search warrant.”
Therefore, even when a first-time DUI suspect refuses testing under implied consent, law enforcement may seek and execute a search warrant for a blood sample upon probable cause under §§ 46-5-221 and -224, MCA.
The implied consent scheme is a civil, administrative mechanism distinct from the criminal DUI investigation. The “favor” of refusal within implied consent does not restrict the State’s independent warrant authority.

The Court rejected a contrary reading advanced by the appellant and in the Chief Justice’s dissent. It emphasized that carving a categorical “first-time offender” exception to warrant-based searches would contravene the statute’s plain text and undermine basic search-and-seizure principles that permit evidence collection under a judicial warrant supported by probable cause.

Analysis

Statutory framework

Implied consent, § 61-8-1016(1), MCA: Operating a vehicle on public ways implies consent to chemical testing to determine alcohol/drug concentration. Refusal triggers the statutory framework for consequences and potential next steps.
Restriction on testing after refusal, § 61-8-1016(4)(a), MCA: If an arrested person refuses, the refused test “may not be given” unless the person has a qualifying prior refusal, conviction, or pending offense.
Warrant carve-out, § 61-8-1016(5), MCA: “This section does not apply” to tests “performed pursuant to a search warrant,” among other enumerated categories.
Warrant authority, §§ 46-5-221, -224(1), MCA: A judge may issue a warrant upon probable cause to seize evidence, expressly including blood samples that may yield evidence of alcohol or drugs in the body when subjected to testing.

Precedents cited and their influence

In re Suspension of the Driver’s License of Blake (1986): Distinguished the civil, administrative implied consent process from criminal DUI prosecutions; each proceeds independently. This separation animates the Court’s view that implied consent does not curtail warrant-based criminal investigation.
State v. Michaud (2008): Driving is a privilege with attendant responsibilities, including implied consent to testing; reinforces that the implied consent scheme flows from regulatory privileges, not constitutional rights.
Nichols v. Department of Justice (2011): The implied consent statute provides protections beyond constitutional minimums; but those statutory protections are not constitutional bars to warranted searches.
State v. Minett (2014): Implied consent should not be construed as an exception to the general requirement for a warrant; supports the broader proposition that warrant practice proceeds independently of implied consent.
State v. Giacomini (2014): Interpreted the 2011 legislative amendments as removing a prior statutory barrier to seeking warrants in certain refusal contexts. Clinkenbeard emphasizes Giacomini for the proposition that warrants in DUI cases are available when probable cause exists independent of the implied consent scheme.
City of Missoula v. Williams (2017): Clarified that warrant sufficiency is judged within the “four corners” of the affidavit and cautioned against obligating magistrates to resolve complex out-of-state “similarity” questions at the warrant stage; underscored that the warrant pathway is distinct from implied consent formalities.
Older cases—State v. Thompson (1984) and Collins v. Department of Justice (1988): Pre-2011 decisions read implied consent’s prohibition in the context of non-DUI crimes; the 2011 Legislature amended the statute to clarify the warrant pathway, which the Court reads as reaffirming the separation between implied consent and general search-warrant authority.
Franks v. Delaware (U.S. 1978): The “four corners” principle and mechanism to challenge warrant affidavits containing false statements; used in Williams and reiterated here in response to the dissent’s approach to warrant review.

Together, these authorities support the majority’s central theme: implied consent is a civil regime regulating consent and license consequences, while search warrants are a separate, constitutionally grounded mechanism for criminal evidence collection that remains available upon probable cause.

Legal reasoning

The Court’s reasoning proceeds from statutory text and structural separation:

Plain language of § 61-8-1016(5), MCA: The phrase “[t]his section does not apply to tests … performed pursuant to a search warrant” is unqualified. The Court declines to insert an exception for first-time DUI offenders that the text does not contain. Under § 1-4-101, MCA, courts must not “insert what has been omitted or omit what has been inserted.”
Separation of regimes: Implied consent governs civil consent withdrawal and license consequences. Warrant practice falls under the criminal procedure statutes (§§ 46-5-221 and -224, MCA) and Fourth Amendment principles. Once officers proceed by warrant, the implied consent provisions no longer control the method of obtaining the sample.
Legislative history and 2011 amendment: While acknowledging pre-2011 complications (Thompson, Collins) and legislative changes (Senate Bill 42), the Court reads the 2011 addition of subsection (5) as confirming that warrant-based testing stands outside the implied consent regimen, including in DUI investigations.
Williams and Giacomini: Even though those cases involved individuals with priors, the Court characterizes that fact as immaterial to the fundamental proposition: probable cause supports a warrant; a judge’s warrant authorizes a search; and implied consent does not bar that basic process.
Four corners and Franks: The Court reiterates that warrant review focuses on facts within the affidavit; it rejects requirements that issuing judges perform collateral legal analyses (e.g., cross-jurisdictional statutory similarity determinations) as preconditions to issuing warrants.
Policy coherence: The Court emphasizes that the dissent’s reading would create a novel, categorical bar to warrant-based evidence collection for a particular offense class (first-time DUI), offering “special protections” inconsistent with core warrant principles and the State’s public-safety interests.

The dissent and the Court’s response

Chief Justice Swanson’s dissent contends that subsections (4)(a) and (4)(b) collectively establish a “safe harbor” for first-time offenders who refuse testing, and that subsection (5) should be construed—via canons such as harmonious reading, ejusdem generis, and specific-controls-over-general—to cover only non-DUI warrant scenarios.

Key points from the dissent:

Textual harmonization: Reading (4)(a), (4)(b), and (5) together to avoid surplusage implies that (5)’s “performed pursuant to a search warrant” must refer to warrants outside the DUI implied consent context, preserving (4)’s first-offender protections.
Legislative history: Extensive quotations from 2011 debates suggest the Legislature adopted a compromise—no blood-warrant for the first refusal, with warrants authorized only upon a prior refusal/conviction/pending offense.
Canons: The dissent invokes a presumption against ineffectiveness, ejusdem generis (treating (5)’s last clause as of the same kind as the first two non-DUI contexts), and the specific-over-general canon (letting the detailed refusal scheme in (4) control over broad language in (5)).
Precedential tension: The dissent argues that the Court’s decisions have been inconsistent post-2011 and urges re-affirmation of Giacomini’s reading that the Legislature opened the warrant pathway only for repeat offenders.

The majority responds on two fronts:

Statutory text control: The plain, unqualified statement in § 61-8-1016(5), MCA, that “this section does not apply” to tests “performed pursuant to a search warrant” admits of no implied first-offender carve-out. Any judicial insertion of such a limitation would violate Montana’s codified interpretive rule against adding words to statutes.
Civil-criminal separation: Because implied consent governs consent and license seizure, not the State’s general warrant authority, relying on (4) to circumscribe warrants confuses two distinct legal mechanisms. The Legislature did not list DUI as an offense for which warrants are unavailable; quite the opposite, the 2011 amendments confirmed the warrant pathway’s availability.

Reconciling subsections (4)(a), (4)(b), and (5)

A common concern is whether the majority’s reading renders (4)(b) redundant. Two points mitigate that concern:

Clarifying authorization vs. limiting power: Subsection (4)(b) explicitly authorizes officers to seek warrants in defined refusal/recidivist scenarios. Even if the general warrant power exists independently in Title 46, (4)(b) provides an express, easy-to-train-on pathway within Title 61 tailored to DUI enforcement. That can be understood as clarificatory rather than restrictive.
No implied repeal of general warrant statutes: The Legislature’s 2011 addition of (5) confirms that implied consent is not the exclusive method for obtaining chemical evidence. The State’s general warrant authority remains intact and independent. Where (4)(b) applies, it is an additional on-ramp; where it does not, officers may still use the general avenue under §§ 46-5-221 and -224, MCA.

Constitutional context

The decision aligns with Fourth Amendment and Article II, Section 11 principles: a compelled blood draw is a search that ordinarily requires a warrant. Nothing in the implied consent statute purports to create a constitutional bar to a warrant. Clinkenbeard confirms that, in Montana, officers may seek a warrant upon probable cause for DUI—regardless of first-offender status—consistent with fundamental search-and-seizure doctrine.

Impact

Clinkenbeard is a clarifying decision with immediate practical consequences:

Uniform statewide practice: Officers may obtain search warrants for blood draws in first-offense DUI cases after refusal, provided there is probable cause. The incentive to refuse in hopes of defeating evidence collection is reduced.
Administrative vs. criminal paths: Refusal within implied consent still carries civil/administrative consequences (e.g., license seizure), but it no longer serves as a litigation hook to suppress lawfully obtained warrant evidence in first-offense cases.
Reduced litigation over “first-offender bar”: Suppression motions premised on an implied consent-based prohibition on warrants for first offenders are foreclosed by this holding.
Warrant practice guardrails remain: Defendants retain standard avenues to challenge warrants—lack of probable cause, Franks challenges to affidavit accuracy, particularity, or execution issues, as well as medical-procedure compliance.
Legislative dialogue: The dissent’s detailed legislative-history account highlights an alternative policy path. If the Legislature intends a first-offender warrant prohibition, it can amend § 61-8-1016(5), MCA, to say so expressly.

Complex concepts simplified

Implied consent vs. warrant-based search: Implied consent is a civil, administrative regime attached to the privilege of driving; it governs consent and consequences of refusal. A search warrant is a criminal-procedure mechanism allowing a judge to authorize a search upon probable cause. Clinkenbeard holds that the implied consent statute does not limit the separate warrant pathway.
Probable cause: A fair probability, based on facts in an affidavit, that evidence of DUI will be found (e.g., erratic driving, odor of alcohol, admissions, poor FSTs, PBT indicators). If established, a judge may issue a warrant for a blood draw.
Four corners rule and Franks challenge: Magistrates assess probable cause based solely on facts within the four corners of the affidavit. If a defendant later shows that affidavit statements were knowingly or recklessly false and necessary to probable cause, a court may excise them and reassess; suppression may follow if probable cause falls away.
Ejusdem generis: A canon of construction suggesting that general words following specific items are limited to the same kind or class. The dissent relies on this to confine § 61-8-1016(5)’s “performed pursuant to a search warrant” to non-DUI warrants; the majority rejects that narrowing in light of the statute’s plain text.
Specific-controls-over-general: When a specific statute conflicts with a general statute, the specific controls. The dissent argues (4)(a)-(b) are specific and should govern over (5); the majority finds no conflict because (5) explicitly removes warrant-based testing from the entire implied consent section.

Practice pointers

For law enforcement and prosecutors:
- Document robust probable cause in the affidavit (driving behavior, admissions, FST performance, PBT results if lawful, observations).
- Seek timely warrants; ensure blood draws are conducted by qualified personnel in appropriate settings.
- Cite § 61-8-1016(5), MCA, and §§ 46-5-221, -224, MCA, to anchor the warrant’s legal authority.
For defense counsel:
- Focus challenges on the warrant’s sufficiency (probable cause, staleness, nexus), the accuracy of affidavit statements (Franks), execution issues, and compliance with statutory and medical protocols.
- Understand that implied consent-based arguments for a first-offender categorical bar to warrants are foreclosed by Clinkenbeard.
For trial courts:
- Assess warrants within the four corners of the affidavit.
- Apply Clinkenbeard to reject suppression claims premised on § 61-8-1016(4)(a), MCA, as a bar to warrants for first-time offenders.

Conclusion

State v. Clinkenbeard establishes a clear rule in Montana: refusal under the implied consent statute does not bar law enforcement from obtaining a search warrant for a blood draw in a first-offense DUI investigation. The Court grounds its holding in the unambiguous text of § 61-8-1016(5), MCA, which excludes warrant-based testing from the implied consent framework, and in the longstanding separation between the civil nature of implied consent and the criminal search-and-seizure regime. While the dissent urges a different harmonization based on canons and legislative history, the majority opts for plain text and structural coherence. The decision aligns Montana practice with constitutional search principles, clarifies confusion in the case law, and provides practical guidance for DUI enforcement and litigation moving forward.