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STATE v. JACKSON

No. 80-405.

637 P.2d 1 (1981)

The STATE of Montana, Plaintiff and Appellant, v. Robert Charles JACKSON, Defendant and Respondent.

Supreme Court of Montana.

Decided November 2, 1981.

Rehearing Denied December 14, 1981.

Attorney(s) appearing for the Case

Mike Greely, Atty. Gen., Helena, Dennis J. Dunphy argued, Asst. Atty. Gen., Helena, Donald White, County Atty., Bozeman, Michael J. Lilly argued, Deputy County Atty., Bozeman, for plaintiff and appellant.

Goetz & Madden, Bozeman, James H. Goetz argued, Bozeman, for defendant and respondent.

SHEA, Justice.

The State appeals from an order of the Gallatin County District Court which declared section 61-8-404, MCA unconstitutional and suppressed all evidence of the defendant's refusal to submit to a breathalyzer sobriety test after he was arrested for driving while under the influence of intoxicants. The primary question on appeal is whether the refusal is testimonial in nature so that the fact of refusal cannot be admitted into evidence. We hold that such...

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