Boland v. State

                              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