April 21 2008
DA 07-0173
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 128
IN RE THE LICENSE SUSPENSION OF
BEVERLY SAMPSON CYBULSKI.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause No. DV 06-119
Honorable Gary L. Day, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Honorable Mike McGrath, Attorney General, Brenda G. Nordlund;
Assistant Attorney General, Helena, Montana
Wyatt A. Glade; County Attorney, Miles City, Montana
For Appellee:
A. Lance Tonn; Lucas & Tonn, P.C., Miles City, Montana
Submitted on Briefs: February 20, 2008
Decided: April 21, 2008
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 The State appeals the District Court’s order reinstating Beverly Cybulski’s driver’s
license. We reverse.
¶2 We restate the issue as follows:
¶3 Did the District Court err by granting Cybulski’s petition to reinstate her
driving privileges?
BACKGROUND
¶4 At about 11:25 p.m. on August 21, 2006, Dispatcher Lyne Anderson of Miles City
received a 911 call from a driver on I-94 east who reported that he had just passed a red
Camaro or Firebird near mile marker 188 going the wrong way on the highway. This
citizen tip was confirmed a short time later by Under Sherriff Roos, who passed the red
Camaro near mile marker 168. Roos contacted Dispatcher Anderson to report that the
vehicle was traveling westbound in the eastbound lane of I-94, in excess of 100 miles per
hour. Deputy Hayter was present at the dispatch center that evening, and overheard the
calls come in. When it became clear that the Camaro was approaching his jurisdiction,
he left the dispatch center to respond to the call.
¶5 Deputy Hayter parked his patrol car on the cross-over near exit 146 to intercept the
Camaro. He requested the assistance of other peace officers in stopping the Camaro. In
the meantime, 911 calls from drivers on I-94 continued to pour in.
¶6 Close to 11:53 p.m., Deputy Hayter got a visual on the red Camaro traveling west
in the eastbound lane of I-94. According to Hayter’s radar, the car was traveling at 75
miles per hour. He activated his lights and sirens, and began pursuit of the vehicle. The
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Camaro failed to respond. Several miles later, with Deputy Hayter still in pursuit, the
Camaro passed Sergeant Davis. Davis was staked out near exit 141, waiting to intercept
the errant Camaro. Davis activated his emergency lights and sirens, and joined the
pursuit.
¶7 After driving on the wrong side of the divided highway for nearly fifty miles,
passing multiple vehicles traveling in the opposite direction, and being pursued for more
than six miles by police officers with emergency lights and sirens activated, the red
Camaro finally slowed to a stop near mile marker 139. Sergeant Davis reached the car
first, and gave some commands to the driver, a woman later identified as Beverly
Cybulski (“Cybulski”). Cybulski did not respond to Davis’s instructions, so he forcibly
removed her from the vehicle, and placed her facedown on the ground. Deputy Hayter
assisted Sergeant Davis in restraining Cybulski. Both officers noticed a strong odor of
alcohol on her person, though the record contains conflicting evidence as to whether they
noticed this before or after handcuffing her.
¶8 After Sergeant Davis read Cybulski her Miranda rights, Cybulski admitted that she
had been drinking. Both officers noticed that Cybulski seemed disoriented and confused.
Davis handed custody of Cybulski over to Deputy Hayter, who took her to the Custer
County Detention Center for further processing and DUI testing.
¶9 At the detention center, Deputy Hayter administered several sobriety tests to
Cybulski. Cybulski indicated that due to a prior injury or surgery, she could not perform
any tests which involved walking or standing on one leg. Deputy Hayter asked Cybulski
to recite the alphabet. Midway through the alphabet, she paused, and then asked if she
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could continue. Deputy Hayter indicated that she could, and she then finished the
recitation. In Hayter’s judgment, Cybulski failed the alphabet test.
¶10 Next, Hayter administered the HGN test. He was trained to administer the test;
however, this was the first time he had actually given one. Deputy Hayter noticed that
Cybulski’s eyes were red and bloodshot, and after observing her involuntary eye
movements, concluded that she failed the HGN test. He then asked her to perform a
breathalyzer test, and explained the consequences of refusing under Montana’s informed
consent law. Cybulski refused; Deputy Hayter read her her Miranda rights again, and
turned her over to the detention staff. Deputy Hayter issued three citations to Cybulski:
first, for driving under the influence of alcohol in violation of § 61-8-401, MCA; second,
for driving on the wrong side of a divided highway in violation of § 61-8-330, MCA; and
third, for reckless driving in violation of § 61-8-301, MCA. The time of each offense
was listed as five minutes after twelve.
¶11 Cybulski subsequently filed a petition for reinstatement of her driver’s license.
The State moved for summary judgment, arguing that since Cybulski subsequently pled
guilty to the divided highway traffic violation, no genuine issue of material fact existed as
to whether her arrest was “supported by legally obtained particularized suspicion.”
Cybulski cross-moved for summary judgment on the same issue. The court partially
granted the State’s motion, noting that at the summary judgment hearing, both parties
conceded that the officers had the requisite particularized suspicion to conduct an initial
traffic stop of Cybulski’s vehicle. Cybulski reserved the issue of whether the officers had
particularized suspicion to conduct sobriety testing for resolution at trial. The court
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denied Cybulski’s summary judgment motion, concluding that genuine issues of material
fact existed as to whether “there was particularized suspicion for the officer to believe
that the driver was intoxicated.”
¶12 The court then held a full hearing on the petition. Cybulski’s counsel called
Deputy Hayter as a witness, and asked him when, in his opinion, Cybulski was under
arrest for driving under the influence of alcohol. Deputy Hayter testified that “[s]he was,
I believe, under arrest when she was handcuffed.” On cross-examination, Deputy Hayter
testified that he would have placed Cybulski in custody for the traffic violations
regardless of whether he had observed any indicators that she was under the influence of
alcohol. He explained that he chose to conduct the sobriety testing at the detention
center, after she was taken into custody, because it was too hazardous to conduct the
testing on the highway.
¶13 Before the State finished examining Deputy Hayter, the court informed counsel
that it was ready to rule. The State sought to call Sergeant Davis as a witness, and to
introduce a video tape of the arrest into evidence. The court refused, and explained that it
found Deputy Hayter’s testimony as to the time of the arrest outcome-determinative. The
court held that Deputy Hayter lacked both the particularized suspicion required to
conduct sobriety tests on Cybulski, and the probable cause to arrest her for driving under
the influence. As a result, the court held that the requirements of § 61-8-403(4)(a), MCA,
were not satisfied, and her license should not have been suspended. The court issued an
order reinstating Cybulski’s driving privileges, which the State now appeals.
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STANDARD OF REVIEW
¶14 We review a district court’s order denying or granting a petition for reinstatement
of a driver’s license to determine whether the findings of fact are clearly erroneous, and
whether its conclusions of law are correct. Bush v. Montana Dept. of Justice, 1998 MT
270, ¶ 7, 291 Mont. 359, ¶ 7, 968 P.2d 716, ¶ 7. A court’s findings of fact are clearly
erroneous if they are not supported by substantial evidence, if the court has
misapprehended the effect of the evidence, or if our review of the record convinces us
that a mistake has been made. Bush, ¶ 7.
DISCUSSION
¶15 Did the District Court err by granting Cybulski’s petition to reinstate her
driving privileges?
¶16 Under § 61-8-402, MCA, any person driving on a public road in this state has
given implied consent to chemical testing to determine whether they are driving under the
influence of drugs and/or alcohol. If a driver refuses to submit to testing, his or her
driver’s license will be immediately confiscated and suspended. Section 61-8-402(4),
MCA. When reviewing the suspension of a driver’s license under this part, the district
court is limited to considering the issues set forth in § 61-8-403(4)(a), MCA, which (in
relevant part) are whether:
(i) 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
combination of the two and the person was placed under arrest for violation
of 61-8-401; . . . and (iv) the person refused to submit to one or more tests
designated by the officer.
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In interpreting this section, the district court considers three distinct issues:
(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.
Muri v. State, 2004 MT 192, ¶ 9, 322 Mont. 219, ¶ 9, 95 P.3d 149, ¶ 9. Cybulski has
stipulated that she refused to submit to the breath test proffered by Deputy Hayter. Thus,
only the first two issues are in dispute; we consider each in turn.
¶17 Before we turn to our analysis of whether Deputy Hayter had reasonable grounds
to believe that Cybulski was driving under the influence, and whether she was lawfully
under arrest for violating § 61-8-401, MCA, we must address a threshold issue. At the
hearing, Deputy Hayter testified that Cybulski was under arrest for driving under the
influence at the time that she was placed in handcuffs. Based on this testimony alone, the
District Court concluded: “I find that Cybulski was under arrest for the offense of
driving under the influence of alcohol at the time her hands were cuffed behind her back
after the initial stop . . . . I further find that said arrest was unlawful because, at that time,
the officer did not have particularized suspicion that Mrs. Cybulski was driving under the
influence of alcohol.” As a result, the District Court found that “all testing to determine
the state of Cybulski’s being under the influence of alcohol or the lack thereof was
unlawful as said testing must be first preceded by a lawful arrest.”
¶18 In reaching this conclusion, the District Court erred by giving conclusive weight to
Deputy Hayter’s subjective opinion that Cybulski was under arrest for driving under the
influence at the time she was handcuffed. The Supreme Court of the United States has
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clearly stated that an arresting officer’s subjective opinion or state of mind is irrelevant to
determining whether probable cause existed:
[A]n arresting officer’s state of mind (except for the facts that he knows) is
irrelevant to the existence of probable cause . . . . Subjective intent of the
arresting officer . . . is simply no basis for invalidating an arrest. Those are
lawfully arrested whom the facts known to the arresting officers give
probable cause to arrest.
Devenpeck v. Alford, 543 U.S. 146, 153-55, 125 S. Ct. 588, 593-94 (2004) (citations
omitted). Deputy Hayter’s own subjective opinion as to when Cybulski was under arrest
for the charge of driving under the influence is legally irrelevant. The only legally
relevant facts are those facts and circumstances within Deputy Hayter’s personal
knowledge. Rather than relying on Deputy Hayter’s subjective opinion, the District
Court should have made its own independent legal determination of whether Deputy
Hayter had reasonable grounds and probable cause to believe that Cybulski was driving
under the influence of alcohol. We consider those issues now.
¶19 A. Did Deputy Hayter have reasonable grounds to believe that Cybulski was
driving under the influence of drugs and/or alcohol?
¶20 We have held that the standard for finding “reasonable grounds” under
§ 61-8-403(4)(a)(i), MCA, is identical to the “particularized suspicion” standard under
§ 46-5-401, MCA. Bush, ¶ 10. Whether particularized suspicion exists to justify an
investigative stop under this section is a question of fact which depends on the totality of
the circumstances. State v. Loney, 2004 MT 204, ¶ 7, 322 Mont. 305, ¶ 7, 95 P.3d 691,
¶ 7. We use a two-step test to determine whether sufficient particularized suspicion
existed to justify an investigative stop: “(1) objective data from which an experienced
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officer can make certain inferences; and (2) a resulting suspicion that the occupant of a
certain vehicle is or has been engaged in wrong doing.” Loney, ¶ 7.
¶21 The District Court ruled that, as a matter of law, Deputy Hayter had the requisite
particularized suspicion to stop Cybulski for violating § 61-8-330, MCA, by driving on
the wrong side of the highway. Cybulski does not challenge this, but instead argues that
Deputy Hayter lacked the requisite particularized suspicion to believe that Cybulski was
driving under the influence, and to conduct sobriety testing. Of course, the particularized
suspicion justifying the initial traffic stop may also serve as the necessary particularized
suspicion for administering field sobriety tests. Hulse v. State, Dept of Justice, 1998 MT
108, ¶ 39, 289 Mont. 1, ¶ 39, 961 P.2d 75, ¶ 39. However, in reviewing a license
suspension, § 61-8-403(4)(a)(i), MCA, specifically requires us to consider whether the
“peace officer had reasonable grounds to believe that the person had been driving . . .
while under the influence of alcohol.” To examine whether sufficient objective data
existed that would allow an experienced officer to suspect that Cybulski was driving
under the influence of alcohol, we must return to the facts in detail.
¶22 Cybulski drove on the wrong side of a major interstate highway for more than
forty miles, oblivious to the fact that she was passing traffic traveling in the opposite
direction. From the numerous 911 calls, the officers knew that Cybulski had been
traveling in the wrong lane of the divided highway for at least a half an hour. The
officers were entitled to rely on these citizen tips, because though they were anonymous,
their credibility was confirmed by Under Sheriff Roos’s eyewitness account (Roos passed
Cybulski on I-94 shortly after the first 911 call came in), and later by their own firsthand
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observation. State v. Sharp, 217 Mont. 40, 45-46, 702 P.2d 959, 962 (1985) (holding that
an officer was entitled to rely on a citizen tip which was “corroborated when [the officer]
found the described vehicle going in the direction and on the highway reported by the
telephone caller.”).
¶23 Furthermore, Cybulski failed to promptly respond to Deputy Hayter’s emergency
signals and directives to pull over. In Henderson, we held that a driver’s failure to
immediately respond to an officer’s emergency signals for two and a half blocks
constituted a particularized suspicion that the driver “might be impaired.” State v.
Henderson, 1998 MT 233, ¶ 5, 291 Mont. 77, ¶ 5, 966 P.2d 137, ¶ 5. Here, Cybulski
continued to drive for six miles after Deputy Hayter activated his emergency signals, and
did not pull over until after Sergeant Davis had joined in the pursuit. Once Cybulski was
stopped, Sergeant Davis approached her vehicle and gave her several commands, but she
still did not respond. Sergeant Davis had to physically remove Cybulski from her
vehicle.
¶24 We conclude that an experienced officer could infer that Cybulski was driving
under the influence from the sheer length of time that Cybulski traveled on the wrong
side of the interstate, and her apparent obliviousness to oncoming traffic traveling in the
same lane. When this was paired with Cybulski’s unusually delayed response to the
officer’s emergency signals, spotlights, and sirens, Deputy Hayter was entitled to infer
that Cybulski was driving under the influence before she even stopped her car.
Therefore, Deputy Hayter had the requisite particularized suspicion to believe that
Cybulski was driving under the influence, and to conduct further sobriety testing.
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¶25 B. Was Cybulski lawfully under arrest for violating § 61-8-401, MCA?
¶26 Under § 61-8-403(4)(a), MCA, an officer’s request for a chemical sobriety test
must be preceded by a lawful arrest for violating § 61-8-401, MCA. Bush, ¶ 12. To be
lawful, the arrest must comply with all the constitutional and statutory requirements for a
warrantless arrest. Section 46-6-311, MCA; Bush, ¶ 12. A peace officer may arrest a
person without a warrant if the officer has probable cause to believe that the person is
committing an offense or that the person has committed an offense and existing
circumstances require immediate arrest. Section 46-6-311 (1), MCA. Probable cause
exists if, at the time of the arrest, there were sufficient facts and circumstances within the
officer’s personal knowledge to warrant a reasonable person’s belief that the suspect had
committed an offense. Bush, ¶ 12.
¶27 Deputy Hayter had probable cause to arrest Cybulski for driving under the
influence before the officers even removed her from the vehicle. Deputy Hayter knew
that Cybulski had been traveling westbound in the eastbound lane on I-94 for at least a
half an hour. The entire time, she was unaware that she was passing oncoming traffic in
her lane, not to mention billboards facing the wrong way. Deputy Hayter chased
Cybulski for more than six miles, but she was oblivious to his emergency signals, siren,
and spotlight. She did not pull over until Sergeant Davis joined the chase. Once her
vehicle was stopped, she failed to respond to Sergeant Davis’s instructions, and so the
officers had to forcibly remove her from the car. In sum, there were more than enough
facts and circumstances within Deputy Hayter’s personal knowledge to support a
reasonable belief that Cybulski was driving under the influence of alcohol that night.
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¶28 Cybulski argues that Deputy Hayter could not have had probable cause to arrest
her for driving under the influence, because he did not observe that her eyes were
bloodshot or smell alcohol on her breath before arresting her. Probable cause does not
usually develop until after the officer stops the vehicle and observes the driver. However,
given the flagrant nature of Cybulski’s traffic violation, her absolute obliviousness to her
surrounding environment, and her delayed response to the officers’ attempts to pull her
over, Deputy Hayter had sufficient probable cause to arrest her immediately for driving
under the influence. Under these egregious circumstances, a reasonable person could
certainly conclude that Cybulski was driving under the influence of alcohol.
¶29 Nor was Deputy Hayter required to administer sobriety tests at the scene before
arresting Cybulski. Sobriety testing is not a prerequisite to finding probable cause; we
have held that “the absence of such tests do[es] not fatally flaw the probable cause
determination.” City of Missoula v. Forest, 236 Mont. 129, 133, 769 P.2d 699, 701
(1989). In this case, Deputy Hayter had ample probable cause to arrest Cybulski for
drunk driving without conducting any sobriety testing.
¶30 In sum, Deputy Hayter had both particularized suspicion to believe that Cybulski
was driving under the influence of alcohol, and probable cause to arrest her for violating
§ 61-8-401, MCA. Thus, Cybulski was lawfully under arrest for driving under the
influence of alcohol at the time the officers handcuffed her on the interstate.
CONCLUSION
¶31 The District Court erred in finding that Deputy Hayter did not have particularized
suspicion to ask Cybulski to submit to sobriety testing. The court also erred in
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concluding that Deputy Hayter did not have probable cause to arrest Cybulski for driving
under the influence of alcohol. Cybulski was lawfully under arrest for driving under the
influence of alcohol at the time Deputy Hayter asked her to submit to a breathalyzer test.
Cybulski refused; pursuant to § 61-8-402(4), MCA, her license was properly suspended.
Reversed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE
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