NO. 90-237
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
BRADLEY H. ARMSTRONG,
Petitioner and Appellant,
STATE OF MONTANA, DEPARTMENT
of JUSTICE,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh ~udicial~istrict,
In and for the County of Flathead,
The Honorable Michael F. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Erik Rocksund, Columbia Falls, Montana
For Respondent:
Ed Corrigan, Deputy Flathead County Attorney,
Kalispell, Montana; Mark Racicot, Attorney General;
Peter Funk, Assistant Attorney General, Helena,
Montana
Submitted on Briefs: August 23, 1990
Decided: November 1, 1990
Filed: s
Justice John C. Sheehy delivered the Opinion of the Court.
Bradley H. Armstrong appeals from an order of the District
Court of the Eleventh Judicial District, Flathead County, denying
Armstrong's request that his right to drive be reinstated. We
reverse the District Court.
The sole issue raised on appeal is whether the District Court
erred in its upholding of the implied consent suspension of
Armstrong s driver s license in light of the State ' s concession
that the arresting officer lacked legal basis to stop Armstrong's
vehicle.
In the early hours of February 21, 1990, Columbia Falls Police
Officer Dale Stone made a stop of Bradley H. Armstrong's vehicle.
Armstrong was subsequently arrested for being in actual physical
control of a vehicle while under the influence of alcohol, in
violation of 5 61-8-401, MCA. Armstrong refused to submit to a
chemical test of his breath to determine blood alcohol content, and
his license was seized pursuant to 5 61-8-402, MCA, the implied
consent law.
The D.U.I. charge was dismissed shortly thereafter, as the
State conceded that the arresting officer did not have reasonable
grounds to stop Armstrong's vehicle.
On February 27, 1990, Armstrong filed an appeal and petition
to reinstate his license pursuant to 5 61-8-403, MCA. In the March
19, 1990 hearing, Armstrong stipulated to his refusal to submit to
a breathalyzer test after the arrest. The State stipulated the
officer did not have reasonable grounds to stop Armstrong.
However, the State contended that probable cause developed after
the stop to indicate that Armstrong was driving under the influence
of alcohol. The State attempted to frame the issue as whether the
officer, in his role as a public safety officer, had a valid
investigative or safety reason to stop Armstrong as he drove down
an alleyway at 2:30 a.m., from which reasonable grounds
subsequently developed to arrest Armstrong for D.U.I.
Alternatively, the State argued the license suspension provision
of 5 61-8-402, MCA, to be an administrative act, separate and
distinct from the criminal offense. The District Court concurred
with the State's latter approach, and ruled from the bench that
suspension under 5 61-8-402, MCA, ''is an administrative act that
doesn't depend for its execution upon the lawfulness of the initial
stop,It and therefore denied Armstrong's petition. This appeal
resulted.
This Court has stated previously that refusal to submit to a
chemical test for blood alcohol content is an issue separate and
distinct from the criminal action of driving while intoxicated.
Gebhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261; In re Blake
(1986), 220 Mont. 27, 712 P.2d 1338; Petition of Burnham (1985),
217 Mont. 513, 705 P.2d 603. The suspension of a license is
subject to review under 5 61-8-403, MCA, which states:
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 dayst 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
the facts of the case, except that the issues shall be
limited to whether a peace officer had reasonable qrounds
to believe the person had been drivinq or was in actual
physical control of a vehicle upon ways of this state
open to the public, while under the influence of alcohol,
whether the person was placed under arrest, and whether
such person refused to submit to the test. The court
shall thereupon determine whether the petitioner is
entitled to a license or is subject to suspension as
heretofore provided. (Emphasis added.)
In a district courtts review of the propriety of the license
suspension for failure to submit to a chemical test, the only
determinations to be made by the court are:
(1) whether the arrestins officer had reasonable qrounds
to believe the followinq:
(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. (Emphasis added.)
Gebhardt, 775 P.2d at 1265.
There is no question in this case that Armstrong was in
control of a vehicle on a way open to the public, was arrested and
refused to submit to a chemical test. At issue is whether the
officer had reasonable grounds to believe Armstrong was committing
a traffic violation or other violation of law when he made the
stop.
The right of a police officer to make a warrantless arrest is
defined in 5 46-6-401(1)(d), MCA, which provides that: "A peace
officer may arrest a person when he believes on reasonable grounds
that the person is committing an offense or that the person has
committed an offense and the existing circumstances require his
immediate arrest." The reasonable grounds for an investigatory
stop of a motor vehicle may be a particularized suspicion,
comprised of: (1) objective data from which an experienced
officer can make certain inferences; and (2) a resulting suspicion
that the occupant of the vehicle is or has been engaged in
wrongdoing. State v. Gopher (1981), - Mont . , 631 P.2d 293,
296.
Here, there is no scintilla of objective data to justify an
investigatory stop under 5 46-6-401(1)(d), MCA. While a properly
founded suspicion to stop for investigative detention may ripen
into probable cause (State v. Lee (1988), 232 Mont. 105, 754 P.2d
512; State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959), there was
an admitted absence of properly founded suspicion on the part of
the arresting officer in this case. Armstrong was merely driving
down an alleyway late at night when he was detained. Unlike Blake
(auto swerve) or Gebhardt (asleep behind wheel of mired, running
vehicle), the officer here had no basis to suspect Armstrong was
possibly driving under the influence at the time the stop was made.
One of the determinations the district court must make during
the hearing authorized under 5 61-8-403, MCA, is whether the
arresting officer here had reasonable grounds to believe that the
petitioner was driving while under the influence of alcohol.
Clearly, the officer here did not. The District Court Is finding
that reasonable grounds existed is clearly erroneous, and
Armstrong's petition should have been granted.
The significance of this decision should be clearly
understood. A police officer making a legal stop of a vehicle, as
for a traffic violation, for example, is not prevented by this
Opinion from further determining after the legal stop that the
driver is under the influence of alcohol, placing him under arrest,
and then requesting that the driver submit to a chemical test under
§ 61-8-402, MCA.
Reversed.
/
Justice
We Concur: J
- Justices /