No. 03-677
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 193
PHIL W. BREWER,
Plaintiff and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause No. DV-03-27
Honorable Gary L. Day, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terry J. Hanson, Attorney at Law, Miles City, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Jeffrey A. Noble, City Attorney for Miles City, Miles City, Montana
Submitted on Briefs: July 6, 2004
Decided: July 27, 2004
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Phil W. Brewer (Brewer) appeals from the order entered by the Sixteenth Judicial
District Court, Custer County, denying his petition to reinstate his driver’s license. We
affirm.
¶2 The issue on appeal is whether the District Court erred in denying Brewer’s petition
to reinstate his driver’s license.
BACKGROUND
¶3 At approximately 12:30 a.m. on January 12, 2003, Miles City Police Officer Jeremy
Tafelmeyer (Tafelmeyer) initiated a traffic stop of Brewer’s vehicle because the vehicle was
speeding. Based on observations made during the traffic stop, Tafelmeyer believed Brewer
to be driving under the influence of alcohol (DUI). Brewer performed field sobriety tests at
Tafelmeyer’s request, following which Tafelmeyer arrested Brewer for DUI. Tafelmeyer
escorted Brewer to the Miles City Police Department where he requested Brewer to submit
to a blood alcohol content test. Brewer refused to submit to the test. Consequently,
Brewer’s driver’s license was seized and suspended pursuant to § 61-8-402(4), MCA.
¶4 Brewer petitioned the District Court to reinstate his driver’s license, asserting that
Tafelmeyer did not have reasonable grounds to believe he was operating a motor vehicle
while under the influence of alcohol. The District Court held a hearing on the petition at
which Tafelmeyer was the sole witness. The court subsequently entered its order denying
Brewer’s petition and Brewer appeals.
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STANDARD OF REVIEW
¶5 We review a district court’s ruling on a petition for reinstatement of a driver’s license
to determine whether the court’s findings of fact were clearly erroneous and its conclusions
of law correct. Widdicombe v. State ex rel. Lafond, 2004 MT 49, ¶ 7, 320 Mont. 133, ¶ 7,
85 P.3d 1271, ¶ 7. “A suspension of a license is presumed to be correct, and the petitioner
bears the burden of proving that the state’s action was improper.” Widdicombe, ¶ 7.
DISCUSSION
¶6 Did the District Court err in denying Brewer’s motion to reinstate his driver’s license?
¶7 A person driving, or in actual physical control, of a vehicle on ways of Montana open
to the public is considered to have given consent to a blood or breath test. Section 61-8-
402(1), MCA. A test of a person’s blood or breath to determine the presence of alcohol or
drugs must be administered when a peace officer
has reasonable grounds to believe that the person has been driving or has been
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
and the person has been placed under arrest for a violation of 61-8-401.
Section 61-8-402(2)(a)(i), MCA. If a person is arrested for DUI and refuses to submit to
such a test, the arresting officer must seize the person’s driver’s license and the license will
be suspended administratively. Section 61-8-402(4), MCA.
¶8 A person whose license is seized and suspended pursuant to § 61-8-402(4), MCA,
may file a petition in the district court challenging the suspension. Section 61-8-403(1),
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MCA. In such a proceeding, the issues to be addressed by the district court are limited. In
the present case, those issues are whether
a peace officer had reasonable grounds to believe that the 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, drugs, or a combina-
tion of the two and the person was placed under arrest for violation of 61-8-
401
and
the person refused to submit to one or more tests designated by the officer.
Sections 61-8-403(4)(a)(i) and -403(4)(a)(iv), MCA.
¶9 When interpreting only subsections (i) and (iv) of § 61-8-403(4)(a), MCA, the district
court ruling on a petition to reinstate a driver’s license determines: (1) whether the arresting
officer had reasonable grounds to believe the petitioner had been driving or was in actual
physical control of a vehicle upon a way of the state open to the public while under the
influence of drugs or alcohol; (2) whether the petitioner was lawfully under arrest; and (3)
whether the petitioner refused to submit to a blood or breath test. Widdicombe, ¶ 8. Brewer
challenged only the “reasonable grounds” question in his petition to reinstate his driver’s
license. We have held that the “reasonable grounds” requirement is the equivalent of a
“particularized suspicion” to make an investigative stop as provided in § 46-5-401, MCA.
Anderson v. State Dept. of Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214.
Furthermore, whether a particularized suspicion exists generally is a question of fact
determined by examining the totality of the circumstances. Anderson, 275 Mont. at 263, 912
P.2d at 214.
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¶10 At the hearing on Brewer’s petition, Tafelmeyer testified that he initiated a traffic stop
of Brewer’s vehicle because the vehicle was speeding. Tafelmeyer approached the vehicle
and asked Brewer to produce his driver’s license. Brewer searched for the license, but
discovered he did not have it with him. He also could not produce current proof of insurance
and, when asked for his vehicle registration papers, he produced the registration for a
different vehicle. Tafelmeyer then asked him for his date of birth, address, telephone number
and social security number. Brewer provided the information without difficulty. During this
exchange, Tafelmeyer detected the odor of alcoholic beverage on Brewer’s breath.
Tafelmeyer asked Brewer whether he had been drinking and Brewer responded that he had
consumed “a couple.” Brewer’s attitude throughout the entire exchange was argumentative
and uncooperative. Tafelmeyer testified that he then requested that Brewer exit the vehicle
and perform various field sobriety tests. Based on the field sobriety tests and his earlier
observations, Tafelmeyer arrested Brewer for DUI.
¶11 Following the hearing on Brewer’s petition, the District Court found that
Tafelmeyer’s testimony established he had reasonable cause to believe Brewer was driving
a motor vehicle while under the influence of alcohol prior to requesting the performance of
field sobriety tests. Based on this finding, the court concluded Brewer was not entitled to
reinstatement of his driver’s license and denied the petition. Brewer contends that the
District Court’s finding that reasonable cause existed is clearly erroneous and its conclusion
that he was not entitled to reinstatement of his driver’s license, based on that erroneous
finding, is incorrect.
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¶12 Brewer concedes Tafelmeyer had a particularized suspicion justifying the initial
traffic stop based on the speeding violation. He argues, however, that the totality of the
circumstances occurring after the stop does not support a finding of reasonable cause to
believe he was DUI because the only indication that he might have been intoxicated was that
Tafelmeyer detected an odor of alcoholic beverage in his breath. Brewer contends that this
case is analogous to Bramble v. State, Dept. of Justice, MVD, 1999 MT 132, 294 Mont. 501,
982 P.2d 464, where we concluded that particularized suspicion did not exist for either the
administration of the field sobriety tests or the request for a breath test. He urges us to reach
the same conclusion here, but Bramble is readily distinguishable.
¶13 There, the arresting officer stopped Bramble’s vehicle for speeding. Prior to the stop,
the officer had received an anonymous citizen’s report that Bramble may have been DUI.
Bramble, ¶¶ 6-7. The officer approached the vehicle and asked Bramble whether he had
been drinking; Bramble replied that he had not. The officer did not observe any signs of
intoxication in Bramble such as bloodshot or glassy eyes, odor of alcohol, slurred speech,
lack of coordination or inability to understand instructions. Notwithstanding the absence of
such indicators, the officer requested Bramble to perform field sobriety tests. Bramble, ¶ 8.
Based on the field sobriety tests, the officer arrested Bramble for DUI. Bramble refused to
take a preliminary breath test at the scene of the arrest and again refused to take a breath test
at the police station. Bramble, ¶ 13. As a result, Bramble’s driver’s license was seized and
suspended. Bramble, ¶ 1.
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¶14 Bramble petitioned the district court to reinstate his driver’s license and the court
denied the petition. Bramble appealed to this Court. Bramble, ¶ 1. We concluded that the
arresting officer did not have a particularized suspicion that Bramble was DUI because, other
than his speeding and the anonymous citizen’s report, no aspects of his driving, behavior or
physical symptoms indicated he was under the influence of alcohol. Bramble, ¶ 24.
Consequently, we held that the district court erred in denying his motion to reinstate his
driver’s license. Bramble, ¶¶ 29-30.
¶15 In the present case, Tafelmeyer detected the odor of alcoholic beverage on Brewer’s
breath, Brewer stated he had been drinking, he could not produce the proper vehicle
documentation and his attitude during the traffic stop was argumentative and uncooperative.
Unlike the officer in Bramble, and contrary to Brewer’s assertion that the only evidence of
intoxication was the odor of alcoholic beverage, Tafelmeyer observed several indications that
Brewer may have been under the influence of alcohol. As a result, Bramble is not applicable
here.
¶16 Brewer also cites several cases from other jurisdictions in support of his argument that
the odor of alcoholic beverage, in and of itself, is insufficient to establish reasonable cause
to believe a driver is DUI. As discussed above, Tafelmeyer observed several indications of
Brewer being under the influence of alcohol in addition to the odor of alcoholic beverage.
Consequently, the premise underlying Brewer’s argument fails and the cited cases are
inapplicable.
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¶17 We conclude Brewer has failed to establish that the District Court’s finding that
Tafelmeyer had reasonable grounds to believe, prior to requesting Brewer to perform field
sobriety tests, that Brewer was driving a motor vehicle while under the influence of alcohol
is clearly erroneous. As a result, we further conclude that the District Court’s conclusion
that Brewer was not entitled to reinstatement of his driver’s license, based on that finding,
is correct. We hold, therefore, that the District Court did not err in denying Brewer’s petition
to reinstate his driver’s license.
¶18 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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