No. 95-382
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
C.A. SEYFERTH,
Petitioner and Appellant,
v.
STATE OF MONTANA, DEPARTMENT OF
JUSTICE, MOTOR VEHICLE DIVISION,
and CITY OF BILLINGS,
Respondents and Respondents
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary R. Thomas; Thomas Law Office, Red Lodge,
Montana
For Respondents:
Joseph P. Mazurek, Attorney General,
Brenda Nordlund, Ass't Attorney General,
Helena, Montana
Alan Hall, Deputy Billings City Attorney,
Billings, Montana
Submitted on Briefs: May 16, 1996
Decided: July 29, 1996
Fil
CLERK OF SUPRUIIE COURT
STATE OF MONTANA
Justice Karla M. Gray delivered the Opinion of the Court.
C.A. Seyferth (Seyferth) appeals from orders of the Thirteenth
Judicial District Court, Yellowstone County, denying his petition
for reinstatement of his driving privileges and denying his motion
to set aside that denial and reopen the proceedings. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court violate Seyferth's right to due
process of law by issuing its order denying his petition for
reinstatement of his driving privileges, without notice, nearly one
year after the hearing on the petition was recessed?
2. Is the District Court's finding that the arresting officer
had reasonable grounds to believe that Seyferth was driving under
the influence of alcohol clearly erroneous?
3. Did the field sobriety tests violate Seyferth's right to
be free from unreasonable searches and seizures and his right to
privacy?
Seyferth attended a Christmas party at Jakes, a restaurant and
bar in Billings, Montana, on the evening of December 17, 1993.
Upon leaving Jakes, Seyferth noticed three police cars stopped
nearby with their red and blue lights flashing. A traffic stop was
in progress at that location, and Officers Keavin Unruh (Unruh) and
Ladd Paulson (Paulson) were assisting a third unidentified officer.
After Seyferth drove by the officers, Unruh followed him for
several blocks and then pulled him over. Paulson assisted Unruh in
the stop.
Unruh asked Seyferth for the usual driving-related documents
and told Seyferth that his vehicle's headlights were not on. Unruh
noticed that Seyferth smelled of alcohol and that his speech was
slurred. After administering field sobriety tests, Unruh arrested
Seyferth for driving under the influence of alcohol (DUI), in
violation of 5 61-8-401, MCA, and took him to the detention
facility in Billings. At the detention facility, Unruh advised
Seyferth of the implied consent statute and asked him to submit to
a breathalyzer test to determine his blood-alcohol content.
Seyferth replied that he wanted an attorney and declined to take
the test. As a result of Seyferth's refusal to submit to the test,
Unruh seized Seyferth's driver's license. The State of Montana,
Department of Justice, Motor Vehicle Division (State) subsequently
sent Seyferth a letter informing him that his driving privileges
were revoked for one year pursuant to 5 61-e-402(5), MCA, and that
he could petition for reinstatement.
Seyferth petitioned the District Court for reinstatement of
his driving privileges and the court reinstated his privileges
during the pendency of the proceedings on his petition. At the
hearing on his petition in June of 1994, Seyferth moved for a
continuance to allow him time to subpoena a witness he had located
the night before the hearing and who had agreed to appear and
testify. According to Seyferth, the witness would contradict the
officers' testimony with regard to whether his vehicle's headlights
were on. The State objected on the basis that the proceedings had
been initiated in December of 1993, and Seyferth had already
3
obtained several continuances to prepare for the hearing. The
District Court noted that Seyferth could have contacted this
alleged witness much earlier and denied the motion to continue.
Seyferth, Unruh and Paulson testified at the hearing and the
State played the videotaped interview of Seyferth at the detention
facility during which he declined to submit to the breathalyzer
test. At the conclusion of the hearing, the District Court
recessed the proceedings; Seyferth was to locate, and presumably
subpoena, the alleged witness who would testify that his vehicle's
headlights were on and the State was to aid Seyferth in attempting
to determine the identity of the third officer at the traffic stop
Seyferth passed before being stopped by Unruh. The court stated
that the parties were to report back within two weeks regarding the
status of the additional witnesses and "whether we need to
reconvene or whether it will be submitted on the evidence that
we've taken so far."
Nearly a year passed, and neither Seyferth nor the State
contacted the District Court. The District Court deemed the matter
submitted and denied Seyferth's petition in May of 1995.
Thereafter, Seyferth moved the court to set aside its order denying
his petition and reopen the proceedings. The District Court
concluded that there was no good cause to reopen the proceedings
and denied Seyferth's motion. Seyferth appeals.
1. Did the District Court violate Seyferth's right to
due process of law by issuing its order denying his
petition for reinstatement of his driving privileges,
without notice, nearly one year after the hearing on the
petition was recessed?
4
Once a driver's license has been issued, the licensee has an
important interest in retaining it; therefore, a license cannot be
suspended or revoked without the procedural due process guaranteed
by the Fourteenth Amendment. $T?e- State ex rel. Majerus v. Carter
(1984)) 214 Mont. 272, 276, 693 P.Zd 501, 503 (quoting Bell v.
Burson (19711, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90). The
United States Supreme Court has stated that, in order to satisfy
due process requirements in this context, states must afford notice
and an opportunity for a hearing. See Bell
-f 402 U.S. at 542
(citations omitted). A hearing subsequent to revocation or
suspension of a driver's license satisfies due process requirements
so long as the procedures used prior to revocation or suspension
provide a reasonably reliable basis for concluding that facts
justify deprivation of a driver's property interest in his or her
license. See Mackey v. Montrym (19781, 443 U.S. 1, 13, 99 S.Ct.
2612, 2618, 61 L.Ed.2d 321, 331.
Seyferth does not challenge Montana's statutory procedures for
revoking or suspending a person's driver's license. He argues
that, under the facts of this case, he was entitled to notice prior
to the District Court's issuance of an order denying his petition
for reinstatement of his driving privileges nearly one year after
his hearing was recessed. Seyferth relies on Memphis Light, Gas &
Water Div. v. Craft (1977), 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d
30, in support of~his argument that the court's failure to provide
such notice here violated his due process rights.
5
In Memphis Light, Willie and Mary Craft (the crafts) were
receiving two utility bills from their municipal utility provider
instead of one. Memphis Liqht, 436 U.S. at 4. They paid the
undisputed portion of the bills and repeatedly attempted to resolve
the double billing problem with their utility provider, Memphis
Light, Gas and Water (MLG&W); they received neither a satisfactory
explanation for the double billing nor suggestions for further
recourse within MLG&W. Memphis Liqht, 436 U.S. at 5. The Crafts'
utility service was terminated numerous times due to nonpayment and
the Crafts and other customers filed suit contending that they had
a property interest in their utility service while disputed bills
remained unpaid and, therefore, were entitled to due process prior
to termination of service. Memphis Liqht, 436 U.S. at 5.
The United States Supreme court reviewed Tennessee law
governing utilities and concluded that, since utility providers
could terminate service only "for cause," the Crafts had a
sufficient property interest to implicate Fourteenth Amendment due
process rights. Memphis Liqht, 436 U.S. at 11-12. The Supreme
Court reiterated the fundamental requirements of due process that
notice be given to interested parties of the pendency of an action
and that the parties be provided an opportunity to present
objections. Memphis Lisht, 436 U.S. at 13 (citation omitted).
"The purpose of notice under the Due Process Clause is to apprise
the affected individual of, and permit adequate preparation for, an
impending 'hearing.'" Memphis Liqht, 436 U.S. at 14 (citation
omitted). In reviewing MLG&W's "pay or be terminated" notice, the
6
Supreme Court held that MLG&W violated the Crafts' due process
rights because it did not provide them with "notice reasonably
calculated to apprise [them] of the availability of an
administrative procedure to consider their complaint of erroneous
billing. _I' Memphis Lisht, 436 U.S. at 22.
Here, the State informed Seyferth by letter that his driving
privileges were revoked for one year and that he had thirty days to
petition for reinstatement in the District Court. Unlike the
Crafts in Memphis Liqht, Seyferth was provided with notice which
apprised him of, and permitted adequate preparation for, a
proceeding to challenge the revocation and seek reinstatement of
his driving privileges. & Memphis Liqht, 436 U.S. at 14. Thus,
the State's letter to Seyferth met the only notice requirement set
forth by the Supreme Court in Memphis Licrht and the case provides
no support for Seyferth's argument.
Seyferth's petition was originally scheduled for hearing on
February 25, 1994. The District Court granted Seyferth three
continuances and the petition finally was heard on June 22, 1994.
At the hearing, Seyferth moved for another continuance; the court
denied the motion. At the conclusion of the hearing, however, the
court gave Seyferth an additional two weeks to procure witnesses.
Upon recessing the hearing, the District Court expressly
directed the attorneys for Seyferth and the State to report back to
it within two weeks regarding "whether we need to reconvene or
whether it will be submitted on the evidence that we've taken so
far." Neither Seyferth nor the State reported back to the court
7
within the two-week period and, indeed, the District Court waited
nearly a year before issuing its order. Seyferth cites to no
authority, and we have found none, under which a party who has had
a hearing and been directed to inform the court within two weeks
whether reconvening the hearing is necessary, but who fails to
contact the court at all, is entitled to further notice prior to
court action.
The record indicates that Seyferth had ample opportunity to
present his case. His failure to do so does not entitle him to yet
more notice and yet another opportunity; nor does it translate into
a due process violation by the District Court. Under these facts,
we hold that the District Court did not violate Seyferth's due
process rights when it issued its order denying his petition for
reinstatement of his driving privileges, without notice, nearly one
year after the hearing on the petition was recessed.
2. Is the District Court's finding that Unruh had
reasonable grounds to believe that Seyferth was driving
under the influence of alcohol clearly erroneous?
The District court I s review of Seyferth's petition for
reinstatement of his driving privileges was statutorily limited to
three issues: (1) whether Unruh had reasonable grounds to believe
that Seyferth 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, drugs or a combination of the two; (2)
whether Seyferth was placed under arrest; and (3) whether Seyferth
refused to submit to a blood, breath or urine test, as required by
s: 61-8-402, MCA. See § 61-a-403(4), MCA. In denying Seyferth's
8
petition, the District Court found that Unruh had reasonable
grounds to believe Seyferth was driving under the influence of
alcohol, that Seyferth was arrested and that he refused to submit
to the breathalyzer test. Seyferth challenges the "reasonable
grounds" finding. We review the District Court's finding to
determine whether it is clearly erroneous. & Anderson v. State
(Mont. 1996), 912 P.2d 212, 214, 53 St.Rep. 125, 126.
A finding of "reasonable grounds" to make an investigative
stop, as required by 5 61-8-403(4) (a) (i), MCA, is the equivalent of
a finding of "particularized suspicion" to make an investigative
stop under 5 46-5-401, MCA. Anderson, 912 P.2d at 214 (citation
omitted). Section 46-5-401, MCA, provides:
In order to obtain or verify an account of the person's
presence or conduct or to determine whether to arrest the
person, a peace officer may stop any person or vehicle
that is observed in circus tances that create a
particularized suspicion that the person or occupant of
the vehicle has committed, is committing, or is about to
commit an offense.
(Emphasis added.) Because the statute requires some objective
manifestation that a person is engaged in criminal activity before
a stop can be made, we adopted a two-part test to determine whether
an officer had sufficient cause to stop a person. Anderson, 912
P.2d at 214 (citing State v. Gopher (1981), 193 Mont. 189, 631 P.2d
293). First, the State must show objective data from which an
experienced officer can make certain inferences. Second, the State
must demonstrate a resulting suspicion that the occupant of a
certain vehicle is or has been engaged in wrongdoing or was a
witness to criminal activity. Anderson, 912 P.2d at 214. Whether
9
a particularized suspicion exists is a question of fact which
depends on the totality of the circumstances. Anderson, 912 P.2d
at 214 (citing State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d
540, 542-43).
Here, both Unruh and Paulson testified that, at approximately
11:30 p.m., Seyferth was driving his vehicle without the headlights
on; they attempted to get his attention by shining and flashing
their flashlights at him as he drove by them. Unruh testified
that, despite their efforts, Seyferth drove by and looked at them
with "unseeing" eyes "as if he didn't realize what we were doing."
On these bases, Unruh suspected that Seyferth was driving under the
influence and immediately followed him. Unruh testified that
Seyferth stopped abruptly, almost running a red light, then turned
a corner to pull over and ran over the curb prior to stopping.
Unruh testified to the extensive and continuing training he
has had for detecting when a person is driving under the influence
of alcohol or drugs. Moreover, he has made "several hundred" DUI
arrests and assisted in "hundreds" of others. According to Unruh,
driving without headlights after dark is one sign indicating that
a person is driving under the influence. Erratic driving, such as
nearly running a red light, stopping abruptly and driving over a
curb, is another sign that a person may be driving under the
influence.
Unruh is an experienced officer who has participated in
hundreds of DUI arrests. He observed Seyferth driving a vehicle
,after dark without its headlights on, noted "unseeing" eyes and
10
observed erratic driving. Paulson's testimony corroborated the
existence of objective data from which Unruh could infer that
Seyferth was driving under the influence. We conclude that, under
the totality of the circumstances, the evidence of record is
sufficient to support a particularized suspicion that Seyferth was
driving under the influence of alcohol.
Seyferth relies on his own testimony that his vehicle's
headlights were on to support his contention that a particularized
suspicion did not exist justifying Unruh's stop. Our standard of
review, however, is not whether evidence supports a finding
different from that made by the district court. Our standard is
whether the court's finding is clearly erroneous. Anderson, 912
P.2d at 214. Where, as here, a district court is the trier of
fact, it is within the province of the district court to determine
witness credibility and the weight to be given evidence. See
Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357
(citing Matter of Estate of Murnion (19841, 212 Mont. 107, 113, 686
P.Zd 893, 896). The District Court apparently found the officers'
testimony more credible than Seyferth's in this case and afforded
that testimony more weight. We will not substitute our judgment
for that of the District Court. See Keebler, 807 P.2d at 1358.
Seyferth also relies on Reynolds in support of his argument
that Unruh did not have a particularized suspicion justifying the
stop. Revnolds, however, is factually distinguishable.
In Reynolds, a deputy sheriff observed the defendant driving
down a dead-end street "'bordering on traveling too fast' for the
11
conditions." Revnolds, 899 P.2d at 542. The deputy drove to where
he thought the defendant would end up, eventually meeting the
defendant at an intersection where the defendant had the right-of-
way. The defendant waited approximately seven to ten seconds
befo~re proceeding through the intersection. Reynolds, 899 P.2d at
542. Immediately thereafter, the deputy pulled the defendant over.
Reynolds, 899 P.2d at 542.
We noted on appeal that the deputy testified only that the
defendant had been driving "'bordering on traveling too fast."'
After the initial "possible" traffic violation, the deputy did not
observe any erratic driving or traffic violations. Revnolds, 899
P.2d at 543. On the record before us, we determined that the
defendant did not exhibit patterns consistent with a person driving
under the influence of alcohol. We ultimately concluded that,
based on the totality of the circumstances, the possible traffic
violation on a stand-alone basis was not sufficient to support a
particularized suspicion that the defendant had been engaged in
criminal conduct. Revnolds, 899 P.2d at 543.
Here, Unruh and Paulson initially observed that Seyferth was
driving his vehicle without the headlights on after dark in
violation of § 61-g-201, MCA. Seyferth did not respond to the
officers' attempt to alert him to that fact by shining and flashing
their flashlights at him. Thereafter, Unruh followed Seyferth and
observed his erratic driving in nearly running a red light,
stopping abruptly and driving up on the curb while pulling over.
12
Thus, in this case an actual traffic violation and other objective
data existed which supports a particularized suspicion.
Having determined that, under the totality of the
circumstances, the evidence of record is sufficient to support a
particularized suspicion, we hold that the District Court's finding
that Unruh had reasonable grounds to believe that Seyferth was
driving under the influence of alcohol is supported by substantial
credible evidence and not otherwise clearly erroneous.
3. Did the field sobriety tests violate Seyferth's right
to be free from unreasonable searches and seizures and
his right to privacy?
On appeal, Seyferth raises numerous constitutional issues
relating to the field sobriety tests, including that the tests
violated his right to be free from unreasonable searches and
seizures, guaranteed by both the Fourth Amendment to the United
States Constitution and Article II, Section 11 of the Montana
Constitution, and his right to privacy, guaranteed by Article II,
Section 10 of the Montana Constitution. Seyferth did not raise
these issues regarding the field sobriety tests in the District
court.
Seyferth concedes the well-settled principle that we will not
address issues raised for the first time on appeal. See Insured
Titles, Inc. v. McDonald (Mont. 1996), 911 P.Zd 209, 213, 53
St.Rep. 61, 64 (citation omitted). He argues, however, that we
should invoke our discretionary power of common law plain error
review because these issues affect his substantial rights.
13
We recently clarified the common law plain error rule in State
v. Finley (Mont. 1996), 915 P.2d 208, 53 St.Rep. 310. The power of
plain error review
is inherent in the appellate process itself. Appellate
courts have the inherent duty to interpret the
constitution and to protect individual rights set forth
in the constitution and necessarily have the correlative
authority to invoke the plain error doctrine in order to
carry out those duties.
Finlev, 915 P.2d at 213 (citations omitted). We held that we would
review claimed errors that implicate a criminal defendant's,
fundamental constitutional rights under the plain error rule only
sparingly and only where failing to do so might result in a
manifest miscarriage of justice, leave the question of the
fundamental fairness of the proceedings unsettled, or compromise
the integrity of the judicial process. Finley, 915 P.2d at 215.
We conclude that refusing to review Seyferth's challenges to
the field sobriety tests in this civil reinstatement proceeding
will not result in a manifest miscarriage of justice, leave the
question of the fundamental fairness of the proceedings unsettled,
or compromise the integrity of the judicial process. See Finlev,
915 P.2d at 215. Accordingly, we decline to address the
constitutional issues relating to the field sobriety tests which
Seyferth raises for the first time on appeal.
Affirmed.
we concur:
15