No. 89-355
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
PATRICK JAMES BOLAND,
Petitioner and Respondent,
-vs-
STATE OF MONTANA,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena, Montana
Peter Funk, Asst. Atty. General, Helena
Patrick Paul, County Attorney, Great Falls, Montana
Stephen Hagerman, Deputy, Great Falls
For Respondent:
Patrick F. Flaherty; Flaherty & Winner, Great l , ' d i l s ,
Montana
Submitted on Briefs: Feb. 2, 1990
ided :
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
The State of Montana appeals from Eighth Judicial District
Judge John McCawel s judgment which concluded that the officer who
arrested Patrick Boland for driving under the influence of alcohol
did not have reasonable cause to arrest Boland at the time the
officer stopped him. The District Court held that Boland was
therefore entitled to immediate restoration of his driver's license
and driving privileges. We reverse the lower court's judgment.
Only one issue is presented: Was the District Court's ruling
that the arresting officer did not have reasonable cause to stop
Boland and arrest him for driving under the influence of alcohol
clearly erroneous given the evidence before the court?
At approximately one in the morning of January 26, 1989,
police officer Donald Scheele observed a car weaving down Central
Avenue in downtown Great Falls, Montana. From a distance of about
three car lengths, Officer Scheele followed the vehicle for one and
one-half to two blocks. Because he was transporting a prisoner,
Officer Scheele radioed for assistance and Officer Steve Lohse, who
was patrolling the area, agreed to continue the surveillance.
Officer Scheele relayed the vehicle's description and license plate
number to Officer Lohse.
Officer Lohse then followed the vehicle for several blocks
until it pulled into a restaurant parking lot. While Officer Lohse
did not see any indication that the vehicle was being driven
erratically, he did observe that the driver stumbled as he got out
of the car and had difficulty maintaining his balance. When
Officer Lohse asked to see the driver's license he immediately
noticed the odor of alcohol on the breath of the driver, Patrick
Boland.
Officer Lohse stated that Boland appeared to have been
drinking and Boland replied that he had just come from The City
Bar. At that point Officer Lohse administered three field sobriety
tests. Boland failed two tests and his speech was slurred during
the third. At that point Officer Lohse advised Boland he was under
arrest for driving under the influence of alcohol. Boland refused
submit to a chemical test.
Following his arrest, Boland's driver's license was suspended
in accordance with 5 61-8-402, MCA, which provides:
(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 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.
Boland then filed a petition for a hearing to determine
''whether a peace officer had reasonable grounds to believe the
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, whether the person was placed under
arrest, and whether such person refused to submit to the testu in
accordance with 5 61-8-403, MCA. The hearing was held before Judge
McCarvel on May 9, 1989. At the conclusion of the hearing, the
District Court found that Officer Lohse did not Itof his own
knowledgeM have reasonable cause to stop Boland and arrest him for
driving under the influence of alcohol. The District Court ordered
Bolandts driver's license be restored to him. It is from this
order the State appeals.
A hearing held under 5 61-8-403, MCA, is "a civil proceeding
separate and distinct from a criminal trial on the charge of
operating a motor vehicle while under the influence of alcoh01.~~
Gebhardt v. State (Mont. 1989), 775 P.2d 1261, 1265, 46 St.Rep.
1114, 1117 (citing In re Blake (1986), 220 Mont. 27, 31, 712 P.2d
1338, 1341). The purpose of such a hearing is to review whether
a petitioner's license was properly revoked following the
petitioner's refusal to submit to a chemical test, and the judge
determines only:
(1) whether the arresting officer had
reasonable srounds to believe the following:
(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 in original.)
Gebhardt, at 1265, 46 St.Rep. at 1117-18.
The only issue at the May 9 hearing was whether the arresting
officer had reasonable grounds to believe that the petitioner was
under the influence of alcohol. Petitioner Boland did not contest
that he was driving the vehicle on a way of this state open to the
public, nor did he contest that he had been placed under arrest
and refused to consent to a chemical test.
Regarding what constitutes "reasonable groundsn we have
recently clarified the standard:
[Rleasonable 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.
Gebhardt, at 1266, 46 St.Rep. at 1119.
The District Court seems to base its ruling that the arresting
officer did not have reasonable grounds to arrest Boland on two
points. First, the district judge stated Officer Lohse did not
have personal knowledge that Boland was driving under the
influence, but relied on the information radioed to him by Officer
Scheele. This radio-relayed information, the ~istrictCourt felt,
could not be relied upon by officer Lohse as facts and
circumstances within his personal knowledge sufficient to arrest
Boland for DUI. Second, the ~istrict Court in its findings of
fact, indicatedthat without the radio-relayed information, nothing
that Officer Lohse observed during his surveillance of the Boland
vehicle would constitute reasonable grounds to arrest Boland for
DUI. We find the District Court's reasoning in this matter to be
flawed.
"Reasonable groundsI1 are synonymous with I1probablecauset1in
Montana. State v. Davis (1980), 190 Mont. 285, 289, 620 P.2d 1209,
1212.
This Court has often held an arresting officer may rely on
information conveyed by a reliable third person or another officer
in determining probable cause to arrest.
[Plrobable cause is to be evaluated by the
courts on the basis of the collective
information of the police rather than that of
only the officer who performs the act of
arresting.
Davis, at 290, 620 P.2d at 1212 (quoting State v. Shaw (0r.App.
1979), 473 P.2d 159, 161). See also, State ex rel. Kuhr v. Dist.
Ct. (1928), 82 Mont. 515, 268 P. 501; State v. Ellinger (1986), 223
Mont. 349, 725 P.2d 1201; State v. Lee (1988), 232 Mont. 105, 754
In addition to the radio-relayed information provided by'
Officer Scheele, Officer Lohse also observed that Boland stumbled
and had trouble maintaining his balance in the restaurant parking
lot, that Boland had the odor of alcohol on his breath and admitted
having just come from a bar, and that Boland failed two of the
three sobriety tests.
We find that the arresting officer did have reasonable grounds
to believe that Boland was driving under the influence of alcohol
at the time of his arrest.
W e r e v e r s e t h e D i s t r i c t Court and remand f o r e n t r y of an o r d e r
c o n s i s t e n t w i t h t h i s opinion.
W concur:
e /
Chief J u s t i c e
Justices
Justice John C. Sheehy, dissenting:
I dissent, and would affirm the District Court.
We are involved here with a civil proceeding. The findings
of the District Court should be sustained by us unless they are
clearly erroneous. Rule 52, M.R.Civ.P.
The District Court made the following findings of fact:
3. Officer Lohse followed Patrick Boland from Second
Street and Central Avenue to the Hardee1s restaurant on
~irst Avenue North and Park Drive. During the time of
surveillance by Officer Lohse, Patrick Boland operated
his vehicle in a proper and legal manner.
4. The unrebutted testimony is that Patrick Bolandls
vehicle was legal and that Patrick Bolandls manner of
driving was at all times legal and there is no reasonable
cause for arresting Patrick Boland.
The foregoing findings by the District Court Judge are
supported by the evidence in the cause. The following colloquy
occurred during the trial :
THE COURT: Before that, though, you had seen nothing
yourself that warranted you arresting him?
THE WITNESS: Concerning his driving?
THE COURT: Yes.
THE WITNESS: That's correct. Other than just Officer
Scheele advising me of the fact that he had observed
this, and asked me to--I pulled in behind the vehicle,
and by the time I got behind it we are into the 200
block, and just like he was turning on to Park Drive, and
all of a sudden was into the Hardee1s lot--
THE COURT: How many blocks did you follow him:
THE WITNESS: Approximately--it would be three blocks
approximately.
THE COURT: And you didn't observe anything in those
three blocks that could cause you to believe--
THE WITNESS: That's correct, I could not say I observed
anything with the vehicle.
The pivotal question here is whether the arresting officer had
any reason to make a stop and interrogate the defendant. He had
no personal knowledge of any violation of the highway laws. The
,&
court gave its reasons for h&s decision, and they are proper, in
the following:
THE COURT: He saw him in physical control of the
vehicle, and he was driving exactly like he was supposed
to do. That's why we have laws, so we don't have
officers arresting people when they are doing nothing.
That's why we have the right to drive in this country.
It is a privilege. And that's why we don't want officers
stopping people in their cars when they have no reason
to stop them.
Now this officer observed this man driving, he saw
nothing wrong with his driving. How would you like it
if they stopped you? You might say you are sober and
everything, it is just the inconvenience of being
stopped. That's why we don't want people being stopped.
This is a free country. We have our liberties. We don't
want police officers stopping somebody when he doesn't
have any cause to stop them.
He observed this man driving, Officer Lohse said he was
weaving, it was a snowy night and so on, and he had been
weaving--he may have been tired or something. But when
this officer got on his tail and followed him for two and
three blocks there, he wasn't doing anything wrong . .
The information radioed by Officer Scheele to Officer Lohse
did not jibe with the actual observations made by the arresting
officer. Officer Lohse did not have reasonable cause to stop
Patrick Boland. As the District Court noted, the observation the
officer made after the stop can not excuse the improper stop. Yet,
it is the observations made by the officer after the stop upon
which this Court relies to reverse the District Court. I would
affirm.
q=Q#VW4&- Justice