No. 88-210
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN THE MATTER OF THE SUSPENSION OF
THE DRIVER'S LICENSE OF BYRNE
KENNEDY GEBHARDT,
Petitioner and Respondent,
-vs-
STATE OF MONTANA,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourteenth ~udicialDistrict,
In and for the County of Musselshell,
The Honorable Roy ~odeghiero,Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc ~acicot, Attorney General, Helena, Montana
Peter Funk, Asst. Attorney General, Helena, Montana
Floyd A. Brower, County Attorney, Roundup, Montana
For Respondent:
John L. Pratt, Ask & Pratt, Roundup, Montana
Submitted on Briefs: March 23, 1 9 8 9
~yecided: July 6 , 1989
Filed:
Clerk
Mr. Justice ~ i l l i a mE. Hunt, Sr., delivered the opinion of
the Court.
The State of Montana appeals from an order of the
District Court of the Fourteenth Judicial District,
Musselshell County, which held that respondent Byrne Kennedy
Gebhardt was justified in refusing to submit to a chemical
test of his breath for the purpose of determining the
alcoholic content of his blood because the officer who
arrested him did not have reasonable grounds to believe he
was in actual physical control of a motor vehicle while under
the influence of alcohol. We reverse and remand.
The sole issue raised on appeal is whether the District
Court erred in ruling that the arresting officer did not have
reasonable grounds to believe that Gebhardt was in actual
physical control of a vehicle upon the ways of the state open
to the public while under the influence of alcohol.
On January 29, 1988, at approximately 1:30 a.m., Montana
Highway Patrolmen George Kostelecky and Jeffree McLaughlin
responded to a call concerning a vehicle stuck in the ditch
near the intersection of Shilo and Hesper Roads, a
residential area on the outskirts of Billings. Upon arrival,
the patrolmen found a Chevrolet pickup located approximately
ten feet off the traveled portion of the road. The vehicle
was mired in mud up to its axles with its engine running.
Its headlights were off, but its parking lights were on.
The patrolmen observed tire chains next to the rear
wheels of the pickup and a bumper jack behind the vehicle.
Tire tracks indicated that the pickup had become stuck when
the driver attempted to negotiate a U-turn on the nearby
road.
The patrolmen discovered Gebhardt asleep, lying across
the front seat of the pickup with his feet and legs beneath
the steering wheel and his head near the passenger door. The
officers had to shake and yell at Gebhardt to rouse him.
When awakened, he was belligerent and uncooperative. The
officers smelled an odor of alcohol in the cab of the pickup
and on Gebhardt's breath.
Patrolman Kostelecky placed Gebhardt under arrest for
being in actual physical control of a vehicle while under the
influence of alcohol, a violation of S 61-8-401, MCA. The
patrolmen did not conduct any sobriety tests at the scene,
but they conducted a series of physical tests when they
arrived at the Yellowstone County Courthouse. Gebhardt
failed two of the three tests administered.
Because Gebhardt refused to take a chemical test of his
breath to determine the alcholic content of his blood, his
driver's license was seized pursuant to the mandates of the
implied consent law, S 61-8-402, MCA. He was issued a
72-hour driving permit in place of the license.
Before the Department of Justice formally acted to
suspend his license, Gebhardt filed a petition seeking
judicial review of the license seizure and anticipated
suspension. The District Court issued an order staying the
suspension of Gebhardt's driver's license pending a hearing.
On February 22, 1988, a hearing was held on the petition
for judicial review. Following the hearing, the ~istrict
Court ordered that the arresting officer did not have
reasonable grounds to believe that Gebhardt was in actual
physical control of a vehicle upon the ways of this state
open to the public while under the influence of alcohol.
Therefore, Gebhardt's subsequent refusal to take a chemical
breath test was justified and he was entitled to a driver's
license. The State of Montana appeals from this order.
Under Montana law, an individual who is arrested for
operating a motor vehicle while under the influence of
alcohol is deemed to have given his consent to a chemical
test for the purpose of determing the alcoholic content of
his blood. Refusal to submit to a chemical test results in
immediate seizure of the individual's driver's license and
formal suspension of the driving privilege by the Department
of Justice. This law, commonly known as the implied consent
statute, is set out at S 61-8-402, MCA, which provides in
pertinent part:
(1) Any person who operates a vehicle upon ways of
this state open to the public shall be deemed to
have given consent, subject to the provisions of
61-8-401, to a chemical test of his blood, breath,
or urine for the purpose of determining the
alcoholic content of his blood if arrested by a
peace officer for driving or in actual physical
control of a vehicle while under the influence of
alcohol. The test shall be administered at the
direction of a peace officer having reasonable
grounds to believe the person to have been driving
or in actual physical control of a vehicle upon
ways of this state open to the public while under
the influence of alcohol. The arresting officer
may designate which one of the aforesaid tests
shall be administered.
(3) If a resident driver under arrest refuses upon
the request of a peace officer to submit to a
chemical test designated by the arresting officer
as provided in subsection (1) of this section, none
shall be given, but the officer shall, on behalf of
the department, immediately seize his driver's
license. The peace officer shall forward the
license to the department, along with a sworn
report that he had reasonable grounds to believe
the arrested person had been driving or was in
actual physical control of a vehicle upon the ways
of this state open to the public, while under the
influence of alcohol and that the person had
refused to submit to the test upon the request of
the peace officer. Upon receipt of the report, the
department shall suspend the license for the period
provided in subsection (5).
(4) Upon seizure of a resident driver's license,
the peace officer shall issue, on behalf of the
department, a temporary driving permit, which is
valid for 72 hours after the time of issuance.
(5) The following suspension and revocation
periods are applicable upon refusal to submit to a
chemical test:
(a) upon a first refusal, a suspension of 90 days
with no provision for a restricted probationary
license;
(b) upon a second or subsequent refusal within 5
years of a previous refusal, as determined from the
records of the department, a revocation of 1 year
with no provision for a restricted probationary
license.
(7) All such suspensions are subject to review as
hereinafter provided.
Judicial review of the suspension of a driver's license
for failure to take a chemical test is governed by S
61-8-403, MCA, which provides:
The department shall immediately notify any person
whose license or privilege to drive has been
suspended or revoked, as hereinbefore authorized,
in writing and such person shall have the right to
file a petition within 30 days thereafter for a
hearing in the matter in the district court in the
county wherein such person resides or in the
district court in the county in which this arrest
was made. Such court is hereby vested with
jurisdiction and it shall be its duty to set the
matter for hearing upon 10 days' written notice to
the county attorney of the county wherein the
appeal is filed and such county attorney shall
represent the state, and thereupon the court shall
take testimony and examine into facts of the case,
except that .the issues shall be limited to whether
-
to
- peace offlcer had reasonable grounds - believe
a
the person - - driving or was & actual
had been I
physical control - - vehlcle upon ways - -
of a of this
state oDen - - ~ublic.while under the influence
L
to the I.
- alcohol, whether the person was placed under
of
arrest, and whether such person refused to submit
to the test. The court shall thereu~on determine
L
whether the petitioner is entitled to a license or
is subject to suspension as heretofore provided.
(Emphasis added.)
A hearing held under this statute is a civil proceeding,
separate and distinct from a criminal trial on the charge of
operating a motor vehicle while under the influence of
alcohol. In re Blake (1986), 220 Mont. 27, 31, 712 P.2d
1338, 1341. During the course of the criminal proceedings
resulting from the citation for driving under the influence,
the judge or jury determines the ultimate issue, that is,
whether, beyond a reasonable doubt, the defendant had been
driving or was in actual physical control of a vehicle on the
ways of this state open to the public while under the
influence of alcohol. However, during the civil proceedings
reviewing the propriety of the suspension of the petitioner's
driver's license for failing to submit to a chemical test,
the judge determines only:
(1) whether the arresting officer had reasonable
qrounds - believe the following:
to
(a) that the petitioner had been driving or was in
actual physical control of a vehicle;
(b) that the vehicle was on a way of this state
open to the public; and
(c) that the petitioner was under the influence of
alcohol;
(2) whether the individual was placed under
arrest; and
(3) whether the individual refused to submit to a
chemical test.
either party in this case has ever contended that
Gebhardt was not arrested nor that he refused to submit to a
chemical test. The only issue presented to the ~istrict
Court for review was whether the arresting officer had
reasonable grounds to believe that Gebhardt was in actual
physical control of a vehicle on a public way while under the
influence of alcohol.
In ruling from the bench, the ~istrictCourt expressed
doubt as to whether Gebhardt's vehicle was on a "way of this
state open to the public." Section 61-8-101(1), MCA, defines
this phrase in the following manner:
As used in this chapter, "ways of this state open
to the public" means any highway, road, alley,
lane, parking area, or other public or private
place adapted and fitted for public travel that is
in common use by the public.
The term highway is defined by S; 61-1-201, MCA, as follows:
"~ighway" means the entire width between the
boundary lines of every publicly maintained way
when any part there of is open to the use of the
public for purposes of vehicular travel. e x c e ~ t
--
that .-
for - purpose of chapter 8 [governikg
the
trafflc regulation] -T- also i'ncludes ways
the e r m
which have been or shall - dedicated - - ~ u b l l c
be t~
use. ( ~ m p h a x a d d e d).
These statutes clearly provide that, with regard to
matters involving a motorist driving under the influence of
alcohol, a "way of this state open to the public" is not
limited to the traveled portion of the road but extends to
the accompanying right-of-ways that are dedicated to public
use. Indeed, in State v. Taylor (1983), 203 Mont. 284, 661
P.2d 33, a case in which we upheld the conviction of an
individual who was discovered asleep behind the steering
wheel of a vehicle stuck in a borrow pit, we concluded that a
borrow pit that had been dedicated to public use constituted
a "highway" within the meaning of S 61-1-201, MCA.
The question presented to the District Court was not
whether the vehicle was, beyond a reasonable doubt, on a
public highway, but whether the arresting officer had
reasonable grounds to believe that the pickup was on a public
highway. Considering the statutory language and the
precedent set by Taylor, the arresting officer had reasonable
grounds to believe that Gebhardt's pickup, located
approximately ten feet from the traveled portion of the
roadway, was on a way of the state open to the public.
The District Court also ruled from the bench that,
because the vehicle was mired in the mud and could not be
moved, Gebhardt did not have actual physical control of the
pickup. However, in Taylor, where the defendant's vehicle
was stuck in a borrow pit and immobile, we stated that
movement of a vehicle is not required for "actual physical
control.'' A motorist does not relinquish control over a
vehicle simply because it is incapable of moving. Taylor,
203 Mont. at 287, 661 P.2d at 34.
Nor does a motorist relinquish actual physical control
over a vehicle because he is lying across the front seat,
asleep. In Taylor, the defendant was asleep and slumped over
the steering wheel of his vehicle with its engine running and
its lights on. We held that he was in actual physical
control of the vehicle. Similarly, in State v. Ryan (Mont.
1987), 744 P.2d 1242, 44 St.Rep. 1735, we held that a
motorist who was lying across the front seat of a vehicle
with his feet near the gas and brake pedals while the engine
was running and the lights were on was in actual physical
control of the vehicle.
In the present case, Gebhardt was found alone in the
pickup. He was asleep, lying across the front seat with his
legs beneath the steering wheel. The engine was running and
the parking lights were on. This set of facts gave Officer
Kostelecky reasonable grounds to believe that Gebhardt was in
actual physical control of the vehicle.
The District Court also concluded that the arresting
officer did not have reasonable grounds to believe that
Gebhardt was under the influence of alcohol. It appears that
the court based this conclusion on the fact that Officer
Kostelecky failed to administer any sobriety tests at the
scene. We agree with the ~istrictCourt to the extent that a
motorist's failure to pass sobriety tests given at the scene
strenthens the State's case. However, the failure to
administer field sobriety tests does not, by itself,
constitute lack of reasonable grounds to believe that a
motorist may be under the influence of alcohol. Rather,
reasonable grounds exist if the facts and circumstances
within the personal knowledge of the arresting officer would
be sufficient to warrant a reasonable person to believe that
the motorist is under the influence of alcohol. See State v.
Lee (Mont. 1 9 8 8 ) , 754 P.2d 512, 515, 45 St.Rep. 903, 906-07.
In this case, Officer Kostelecky observed Gebhardt
asleep in a vehicle while the motor was running. Gebhardt
was difficult to rouse and, once awakened, was belligerent.
Gebhardt's breath and the cab of the pickup smelled of
alcohol. This combination of facts constitutes reasonable
grounds to believe that Gebhardt was under the influence of
alcohol.
We reverse the District Court and remand for entry of an
order consistent with this opinion.
>,&
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Signed
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The expense of making changes is such that we cannot undertake it for
items of merely typographical style.
'i West Publishing Co.
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