No. 90-463
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
JERRY GRINDE,
Petitioner and Respondent,
-vs-
JUN 1 8 1991
STATE OF MONTANA,
Defendant and Appellant. CLERK OF SUPREME COURT
STATE OF MONTANA
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, State of
Montana, Helena, Montana; James L. Yellowtail,
Assistant Attorney General, State of Montana; Peter
Funk, Assistant Attorney General, State of Montana,
Helena, Montana; Rae V. Kalbfleisch, Toole County
Attorney, Shelby, Montana; Merle Raph, Deputy Toole
County Attorney, Shelby, Montana.
For Respondent:
Chas L. Jacobson; Conrad, Montana
Submitted on briefs: May 10, 1991
Decided: June 18, 1991
Filed:
~usticeR. C. McDonough delivered the Opinion of the Court.
The State of Montana appeals from an order of the Ninth
Judicial District, Toole County, that required the return of Jerry
Grinde's driver's license. The District Court held that the
seizure of Grindels license pursuant to 61-8-402, MCA, was
illegal because Toole County police officers lacked justification
to stop his automobile. We affirm.
The sole issue on appeal is:
Whether the District Court erred when it ordered the return
of Jerry Grinde's driver's license.
On March 17, 1990, at approximately 11:30 p.m., Jerry Grinde
(Grinde) was driving a silver Corvette eastward on Main Street in
Shelby, Montana. Toole County Sheriff's deputies Ken DeCock and
Ron Kinyon were approaching from the opposite direction at the
time. As the patrol car approached, Grinde made a right hand turn
onto Maple Avenue. After Grinde's car was no longer in sight, the
deputies heard na squealing of tires and the sound of an engine
revving up." Because they observed no other vehicles in the
immediate vicinity, the deputies attributed the noise to Grinde's
Corvette.
The police officers followed Grinde onto Maple Street and
observed the vehicle as it turned into an alley. Based upon their
belief that Grinde Itmayhave been carelessly or recklessly driving
up Maple Avenuevr
the police activated their lights. Grinde turned
into a parking lot and got out of his automobile. According to
Deputy DeCock, Grinde appeared unsteady as he left his car and
approached the police vehicle. The deputies required Grinde to
perform several field sobriety maneuvers. Apparently Grinde failed
each test.
Grinde was placed under arrest and taken to the Toole County
Sheriff's Department. He was informed of the provisions of the
implied consent statute, 5 61-8-402, MCA. He refused to take a
breath test until he was allowed to speak with an attorney. Deputy
DeCock informed him that he did not have a right to speak with an
attorney before being required to take a breath test. Grinde
continued in his refusal and the officer treated his response as
a refusal to take the breath test. Officer DeCock then seized his
driver's license under the authority of 5 61-8-402(3), MCA.
On April 16, 1990, Grinde filed a petition in District Court
seeking reinstatement of his driving privileges pursuant to S 61-
8-403, MCA. A hearing was held and the District Court found that
the arresting officers lacked justification for stopping Grinde's
vehicle. It then ordered the return of Grinde's driver's license.
This appeal followed.
Section 61-8-402, MCA, provides that any person who operates
a motor vehicle upon ways of this state open to the public shall
be deemed to have given consent . . . to a chemical test for the
purpose of determining the alcoholic content of his blood if
arrested by a peace officer for driving . . . a vehicle under the
influence of alcohol.
A person can refuse to submit to this test. However, upon
refusal the arresting officer is directed to seize his driver's
license. The Department of Justice is then required to suspend
that person's driving privileges for a period of at least 90 days.
See !
j 61-8-402 (3) and (5), MCA. Upon seizure of his license, a
person can obtain judicial review of the administrative suspension
of his driving privileges. Review of this action is, however,
limited by statute. Section 61-8-403, MCA, provides that judicial
review of administrative actions taken pursuant to the implied
consent statute is limited to the following issues:
(1) whether the arresting officer had reasonable grounds
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.
Gebhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261.
The State maintains that the District Court exceeded the
mandate of this statute when it considered the validity of the
initial stop of Grindet car. According to its argument, the court
s
must limit itself to the three issues recited above. Because the
statute contains no reference to the validity or reasonableness of
the initial stop, its decision to return Grindels driver's license
was in error and must be reversed.
We disagree. In Armstrong v. State (1990), 47 St.Rep. 2057,
800 P.2d 172, we held that in order to meet the requirements of 9
61-8-403, MCA, the State must show that the police officer had
reasonable grounds to make an investigatory stop of the defendant's
vehicle. Unfortunately, we did not adequately set forth the
rationale for this conclusion. This omission on our part has
caused some confusion on the part of the parties to this action.
As stated above, a court reviewing the suspension of a
driver's license is limited to only three issues. It must
determine first, whether the arresting officer had reasonable
grounds to believe that the petitioner was in control of a vehicle
upon a public way while he was under the influence of alcohol.
Second, it must determine whether the individual was placed under
arrest. And third, it must determine whether the individual
refused to submit to a chemical test.
In the instant case, there is no doubt that Grinde was in
control of a vehicle upon a public way. Nor do we doubt that the
police officers, after having stopped Grinde's vehicle and
observing his demeanor, had reasonable grounds to believe he was
intoxicated. The parties agree that Grinde refused to submit to
a chemical test.
Therefore, the only issue in dispute is whether Grinde was
placed under arrest. Under the facts of this case, the police
officers must first have had a "particularized suspicion of some
kind of wrong doing1' before they could legally stop Grinde's
vehicle. State v. Gopher (1981), Mont. , 631 P.2d 293.
Without this suspicion the initial stop was illegal and the
resulting arrest invalid. If the arrest is invalid the second
element'articulated in § 61-8-403, MCA, cannot be met and the state
cannot legally suspend Grinde's license. For an arrest to be
established, the right to make an arrest must be established. To
say otherwise is to declare that the arrest requirement of the
statute could be established even though a police officer lacked
any legal justification to take a person into custody or hold him
in temporary detention.
The District Court found, and we agree, that the sheriff's
deputies were not justified in stopping Grinde's car. Throughout
their personal observation of Grinde's car, they saw no evidence
of erratic driving. On the contrary when they observed Grinde's
vehicle, it was being driven in a safe and prudent manner, well
within the speed limit. There was, therefore, no particularized
suspicion of wrongdoing on his part and their stop of his vehicle
was illegal. The resulting arrest was similarly illegal and the
District Court properly returned his driver's license.
The meaning of this decision should be clearly understood.
As stated in Armstronq, a police officer making a legal stop is not
prevented from further determining 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 5 61-8-402, MCA.
A legal stop can occur when a police officer has 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 a certain vehicle is or
has been engaged in wrongdoing or was a witness to criminal
activity. State v. Gopher (1981), - Mont. , 631 P.2d 293.
Legal stops can also occur in noncriminal, noninvestigatory
contexts. For example nothing prevents a police officer from
making a stop to deliver an emergency message, assist a stranded
motorist or warn of an impending danger. A police officer can
legally stop a vehicle for a bona fide reason which is related to
functions within his authority and duties. See People v. Davis
(Col. 1977), 565 P.2d 1347. If, after making such a stop, the
police officer reasonably believes the driver to be under the
influence of alcohol, he can make an arrest and require submission
to a chemical test.
Affirmed. j
d,[/yT<
We Concur: /
hief Justice