NO. 92-124
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
PATRICK F. MANEY,
Petitioner and Appellant,
-vs-
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert C. Melcher, Morrison, Young, Melcher, Brown
& Richardson, Havre, Montana
For Respondent:
Hon. Marc Racicot, Attorney General,
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
David G. Rice, County Attorney, Patricia Jensen,
Deputy, Havre, Montana
Submitted on Briefs: August 20, 1992
Decided: November 23, 1992
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
Petitioner, Patrick F. Maney, appeals from the Twelfth
Judicial District Court, Hill County, order denying reinstatement
of his driver's license. We affirm.
The issues on appeal are:
1. Whether in making a lawful citizen's arrest, a peace
officer acting outside the officer's territorial jurisdiction must
transfer custody to another officer who has jurisdiction.
2. Whether the implied consent statutes apply when the
arresting officer makes a lawful citizen's arrest outside the
officer's territorial jurisdiction.
On October 11, 1991, Chinook City Police Officer Tim Gomke saw
an approaching vehicle make a sudden lateral movement and flash its
lights. Officer Gomke clocked the vehicle at 31 mph in a 40 mph
zone. As the vehicle passed the officer, he recognized it as one
he had seen at a local bar two hours earlier. He had run a
registration check on the vehicle at that time.
Officer Gomke, believing that the driver had a revoked
license, followed the vehicle out of the Chinook city limits for
about three and one-half miles. He observed the vehicle traveling
too slowly and swerving from the centerline to the fogline.
Officer Gomke testified that he suspected the driver was impaired
by alcohol and realized he should get the vehicle off the road
immediately. The officer activated his emergency lights after he
radioed for backup. The vehicle did not stop promptly, rather it
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proceeded for about a mile before it pulled over. The driver was
identified as Patrick F. Maney.
Because Maney's breath smelled of alcoholic beverage, Officer
Gomke required him to perform field sobriety maneuvers. Meanwhile,
Blaine County Deputy Sheriff Shawn Kovacich had arrived on the
scene. He witnessed Maney's performance of the sobriety maneuvers.
Deputy Kovacich and Officer Gomke agreed that Maney was impaired by
alcohol so Officer Gomke arrested Maney. Immediately after the
arrest, Officer Gomke radioed to the dispatcher at the Blaine
County sheriff's office that he had a D.U.I. suspect in custody.
Officer Gomke then transported Maney to the sheriff's office in
Chinook. Deputy Kovacich followed.
At the sheriff's office, Officer Gomke re-administered
sobriety tests to Maney while Deputy Kovacich observed. The
sobriety tests again showed that Maney was alcohol impaired. Maney
refused Officer Gomke's request to submit to a breathalyzer test.
Officer Gomke, therefore, confiscated Maney's driver's license and
the State suspended the license as prescribed by the implied
consent statute g 61-8-402, MCA.
Maney petitioned the State to restore his license pursuant to
§ 61-8-403, MCA. This appeal follows the District Court's denial
of the petition.
Our standard of review of a district court's conclusions of
law is plenary and we determine whether the district court's
conclusions are correct. Steer, Inc. v. Dept. of Revenue (1990),
3
245 Mont. 470, 474, 803 P.2d 601, 603.
Judicial review of the propriety of the suspension of a
driver's license is limited to the following:
(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, 95, 775 P.2d 1261, 1265.
In the present case, the District Court found that Officer
Gonke had reasonable grounds to stop petitioner's vehicle. The
court also found that after Officer Gomke and Deputy Kovacich
observed petitioner they had reasonable grounds to believe he was
intoxicated. There is no doubt that petitioner was in control of
his vehicle on a public way. Further, there is no doubt that he
refused to submit to a chemical test. Therefore, if Officer Gomke
placed petitioner under lawful arrest and if the implied consent
law applies in this circumstance, then the suspension of
petitioner's driving privileges must be upheld.
To make a lawful citizen's arrest, must a peace officer acting
outside the officer's territorial jurisdiction transfer custody to
another officer who has jurisdiction?
In Montana, as in most states, a peace officer may lawfully
4
make an arrest outside of the officer's jurisdiction if a private
citizen could have made a lawful arrest under the circumstances.
State v. McDole (1987), 226 Mont. 169, 172, 734 P.2d 683, 685. In
this case, the stop occurred approximately four and one-half miles
outside Chinook's city limits. Officer Gomke could, therefore,
make a lawful arrest by following the requirements for a citizen's
arrest.
In 1991 the legislature revised the citizen's arrest statute
to read as follows:
(1) A private person may arrest another when there is
probable cause to believe that the person is committing or has
committed an offense and the existing circumstances require
the person's immediate arrest.
(2) A private person making an arrest shall immediately
notify the nearest available law enforcement agency or peace
officer and give custody of the person arrested to the officer
or agency.
Section 46-6-502, MCA.
The validity of the stop and Officer Gomke's authority to make
a citizen's arrest are not contested in the present case.
Petitioner contends that his arrest was unlawful because Officer
Gomke did not transfer custody of petitioner to another officer.
We hold that, under the circumstances, Officer Gomke did not have
to transfer custody to effectuate a valid citizen's arrest.
Section 46-6-502(2), MCA, requires that a person making a
citizen's arrest immediately notify either the nearest available
law enforcement agency or peace officer. Officer Gomke chose to
notify the nearest law enforcement agency--the Blaine County
sheriff's office in Chinook.
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As required by g 46-6-502(2), MCA, Officer Gomke radioed the
Blaine County dispatcher immediately after making the arrest.
Officer Gomke promptly transported petitioner to the Blaine County
sheriff's office for booking. As soon as Officer Gomke entered the
Chinook city limits he was within his jurisdiction and it would
make no sense to require Officer Gomke to transfer his prisoner to
another officer who also had jurisdiction.
Officer Gomke was a peace officer with jurisdiction in the
city of Chinook. The Blaine County sheriff's department is in
Chinook. Officer Gomke notified the sheriff's department and
promptly transported his prisoner to the sheriff's department. He
therefore did not need to formally transfer custody to a deputy
sheriff to make a lawful citizen's arrest.
II
Do the implied consent statutes apply when the arresting
officer made a lawful citizen's arrest outside the officer's
territorial jurisdiction?
Suspension or revocation of a driver's license pursuant to the
implied consent statute is a civil administrative sanction, not a
criminal penalty. Petition of Burnham (1985), 217 Mont. 513, 518,
705 P.2d 603, 607 (citing cases). The purpose of suspending a
person's driving privileges is not punishment, rather it is to
protect the unsuspecting public. In re France (1966), 147 Mont.
283, 288, 411 P.2d 732, 734; Blake v. State (1987), 226 Mont. 193,
197, 735 P.2d 262, 264. The court should not interpret a statute
6
so as to defeat its purpose, rather it should achieve the social
purpose for which the statute was enacted. Montana Talc Co. v.
Cyprus Mines Corp. (1987), 229 Mont. 491, 498, 748 P.2d 444, 449.
This conforms to § l-2-103, MCA, which provides that statutes "are
to be liberally construed with a view to effect their objects and
to promote justice."
The implied consent statute, 5 61-8-402, MCA, states:
(1) Any person who operates or is in actual
physical control of a vehicle upon ways of this state
open to the public shall be deemed to have given consent
. . . to a test of his blood, breath, or urine for the
purpose of determining any measured amount or detected
presence of alcohol in his body if arrested bv a peace
officer for driving or for being in actual physical
control of a vehicle while under the influence of alcohol
. . . . The test shall be administered at the direction
of a oeace 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 test or tests shall
be administered.
* * * *
(3) If a driver under arrest refuses unon the request of
peace officer to submit to a test designated by the
zrresting officer as provided in subsection (1)
shall be given, but the officer shall, on behalf of":::
department, immediately seize his driver's license.
(Emphasis added.)
* * * *
Section 61-8-402, MCA.
Petitioner contends that the implied consent statute requires
an arrest by a peace officer and that a peace officer request the
suspect to submit to a chemical test. We agree.
Petitioner further contends that Officer Gomke lost his status
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as a peace officer when he made a citizen's arrest outside of his
territorial jurisdiction. We disagree.
A peace officer is "any person who by virtue of the person's
office or public employment is vested by law with a duty to
maintain public order and make arrests for offenses while acting
within the scope of the person's authority." Section 46-l-202(17),
MCA. A person who is employed as a law enforcement officer falls
within this definition even when outside the geographical area in
which the officer has jurisdiction. A person is a peace officer by
virtue of holding the particular job.
A law enforcement officer is in fact still a peace officer
even when making an arrest under authority of the citizen's arrest
statute. Montana's implied consent statute makes no reference to
the jurisdiction of the arresting officer. It merely requires an
arrest by a peace officer.
Once Officer Gomke left his jurisdiction he could make arrests
only as a private person. To sustain the suspension of a driver's
license, however, it makes no difference that Officer Gomke acted
under the authority granted to a citizen when making the arrest
because he was a peace officer in fact.
Officer Gomke, a peace officer, lawfully arrested petitioner
and requested that he take a breathalyzer test. Therefore, the
implied consent statute applies in this case. As required by 5 61-
8-403, MCA, and case Law, the State proved that: (1) a peace
officer had reasonable grounds to believe petitioner was driving
under the influence of alcohol, (2) a peace officer placed
petitioner under lawful arrest, (3) petitioner refused a peace
officer's request to take an alcohol detecting test. See Matter of
Suspension of Driver's License of Blake (1986), 220 Mont. 27, 31,
712 P.2d 1338, 1341.
The District Court, therefore, properly sustained the
revocation of petitioner's driving privileges. Affirmed.
Justice
We Concur:
November23, 1992
CERTIFICATE OF SERVICE
I herebycertify that the following order was sentby United Statesmail, prepaid,to the following
named:
Robert C. Melcher
Morrison, Young,Melcher, Brown SCRichardson
P.O. Box 1070
Havre, MT 59501
Hon. Marc Racicot, Attorney General
PatriciaI. Jordan,Assistant
215 N. Sanders,JusticeBldg.
Helena,MT 59620
David G. Rice, CountyAttorney
PatriciaJensen,Deputy
P.O. Box 912
Havre, MT 59501
ED SMITH
CLERK OF THE SUPREMECOURT