State v. Williams

NO. 95-054
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
v.
BILLY DALE WILLIAMS,
Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Powder River,
The Honorable Kenneth R. Wilson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
J. B. Wheatcroft, Attorney at Law,
Miles City, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Brenda Nordlund, Assistant Attorney General,
Helena, Montana
Coleen Magera, Powder River County Attorney,
Broadus, Montana

Submitted on Briefs: August 17, 1995
Decided: October 25, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

The defendant, Billy Dale Williams, was charged by complaint

in the Justice Court of Powder River County with driving under the

influence of alcohol in violation of 5 61-8-401, MCA. On June 1,

1994, following a nonjury trial, Williams was convicted of the

charge against him. He appealed his conviction to the District

Court for the Sixteenth Judicial District in Powder River County.

However, after his motion to suppress blood alcohol test results

was denied, he entered a guilty plea on the condition that he be

allowed to appeal the denial of his suppression motion.

We affirm the order of the District Court.

The issue on appeal is:

Did the District Court err when it denied Williams's motion to

suppress his blood alcohol test results?
FACTUAL BACKGROUND

On Saturday, October 16, 1993, at approximately 11 p.m., Billy

Dale Williams was involved in a single vehicle accident in Powder

River County. Powder River County Undersheriff Brett Tabolt and

Deputy Sheriff Dave Lancaster arrived at the scene ten minutes

after the accident was reported and discovered Williams's car in

the ditch. Williams was seated in the passenger seat of the

vehicle.

1n an effort to determine the extent of Williams's injuries,

Tabolt spoke with him at the accident scene. He observed that

Williams’s eyes were red and watery and "could smell an odor of an

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alcoholic beverage on his breath." During the course of their
conversation, and on several other occasions, Tabolt asked Williams

to extinguish his cigarette and admonished him not to light another

one. Several of these requests were unheeded.

After he spoke with Williams, Tabolt requested assistance from

the Montana Highway Patrol. In response to that request, Patrolman

Paul Hazelton arrived at the accident scene. Tabolt reported his

observations to Hazelton, "including the observation of the odor of

an alcoholic beverage."

By the time Hazelton arrived at the scene of the accident,

Williams had already been transported by ambulance to the Miles

City Holy Rosary Hospital. Hazelton radioed the Miles City Police

Department and requested that an officer be dispatched to inform

Williams of the Montana implied consent law and to obtain a blood

sample. Hazelton concluded his investigation and left the accident

scene at 12:55 a.m.

On Sunday October 17, 1993, at approximately 12:50 a.m.,

Officer Kevin Krausz of the Miles City Police Department arrived at

the Holy Rosary Hospital and met with Williams. Krausz identified

himself and told Williams that he was acting at the request of

Officer Paul Hazelton of the Montana Highway Patrol. During his

conversation with Williams, Krausz "did detect alcohol on

[Williams's] breath." Krausz read the implied consent form to

Williams, and Williams consented to a blood alcohol content (BAC)

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test. A registered nurse in the hospital emergency room drew the

blood sample.

Hazelton arrived at Holy Rosary Hospital at 1:50 a.m. and

interviewed Williams. At that time, Hazelton also "could smell an

odor of an alcoholic beverage coming from Mr. Williams's breath."
Williams admitted that he had consumed three to four beers prior to

his accident. Hazelton issued Williams notices to appear for

driving under the influence of alcohol and for failure to wear a

seatbelt, and signed the request for blood test form.

At 3 a.m., Hazelton went to the Miles City Police Department,

where he signed the implied consent law advisory form as the

arresting officer and collected Williams's blood sample from

Krausz. Test results indicated that two hours after his accident,

Williams's blood alcohol level was .09 mg./lOO ml. blood.

Prior to his trial before the Powder River County Justice

Court, Williams filed a motion to suppress the results of his blood

alcohol test. In his supporting brief, Williams contended that

Hazelton and Krausz had not complied with the implied consent

procedures as set forth in 5 61-8-402, MCA, and that the BAC sample

was, therefore, improperly obtained. Specifically, Williams argued

that Krausz had not had jurisdiction over the matter because the

accident had not occurred within the city limits of Miles City or
within five miles thereof, and that there was not probable cause to

make a warrantless arrest. These two errors, Williams asserted,

violated Montana's implied consent law.

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 That motion was denied, and the court found Williams guilty as
charged on June 1, 1994.

Williams appealed his conviction to the Sixteenth Judicial

District Court where all issues raised by the charge against him

were considered denovo. Williams renewed his motion to suppress,

based on the same two issues of jurisdiction and probable cause.
The District Court found that there had been probable cause and

authority to arrest Williams and to administer the BAC test

pursuant to the implied consent law, and denied the motion. The
court accepted Williams's conditional guilty plea, and stayed
imposition of sentence pending Williams's appeal to this Court.

DISCUSSION

Did the District Court err when it denied Williams's motion to

suppress his blood alcohol test results?

The standard of review for a district court's denial of a

motion to suppress is whether the court's findings of fact are

clearly erroneous, and whether those findings were correctly

applied as a matter of law. Statev.Flack (1993), 260 Mont. 181, 188,

860 P.2d 89, 94. In this case, the parties submitted stipulated

facts to the District Court. Therefore, our review is plenary and
we must determine only whether the court's conclusions of law were

correct as a matter of law. Flack, 860 P.2d at 92.

Williams contends that the District Court's denial of his

motion to suppress was erroneous for three reasons. First, he
claims that the BAC results should have been suppressed because he

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to the District Court, Williams had not placed his arrest at issue,
and the District Court did not address that question when it denied

Williams's motion. Williams's failure to include this issue as a

basis for his motion to suppress before the District Court bars him

from raising it on appeal. Statev.Redfern (1987), 228 Mont. 311, 313,

741 P.2d 1339, 1340-41. See&o § 46-20-104(2), MCA.

LACK OF PROBABLE CAUSE

Williams claims that Krausz did not have probable cause to

arrest him for purposes of the implied consent law, § 61-8-402(l),

MCA. Montana's implied consent law provides, in pertinent part:

A person who operates or is in actual physical control of
a vehicle upon ways of this state open to the public is
considered to have given consent . . to a test or tests
of the person's blood, breath, or urine for the purpose
of determining any measured amount or detected presence
of alcohol or drugs in the person's 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, drugs, or a combination of the two.

Section 61-8-402(l), MCA (emphasis added).

The implied consent law requires an arrest by a peace officer

before its provisions become operative. Section 46-6-311(l), MCA,

provides:

A peace officer may arrest a person when a warrant has
not been issued 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.
We have long held that the probable cause requirement is

satisfied:

[I]f at the time of arrest the facts and circumstances
within the officer's personal knowledge, or upon

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 information imparted to him by a reliable source, are
sufficient to warrant a reasonable person to believe that
the suspect has committed an offense.

Santeev.State (1994) , 267 Mont. 304, 307, 883 P.d 829, 831 (citing&s

v. state (1992) , 255 Mont. 254, 261, 841 P.2d 1137, 1141)

Williams contends that the chain of sources, from Officers

Tabolt and Lancaster to Officer Hazelton to the Miles City dispatch

office to Officer Krausz, was too indirect to establish the

requisite probable cause. Based on our prior decisions, we

disagree. It is well established that an arresting officer may

rely on information conveyed by another officer to determine

whether there is probable cause to arrest. Bolandv. State (1990) , 242

Mont. 520, 524, 792 P.2d 1, 3. In fact, it is our policy that

courts should evaluate probable cause '1on the basis of the

collective information of the police rather than that of only the

officer who performs the act of arresting." Boland, 792 P.2d at 3.

In this case, the observations of Tabolt and Hazelton which

had been communicated to Krause, in combination with Krausz's own

observations, established sufficient probable cause to arrest

Williams. Tabolt personally observed Williams, who was seated in

a wrecked vehicle in a ditch by the side of the highway. Tabolt

further observed that Williams had red watery eyes, and that his

breath had the odor of an alcoholic beverage. Tabolt reported that

he repeatedly had to admonish Williams not to light a cigarette.

Tabolt reported his observations to Hazelton, who in turn conveyed

them to Krausz via the Miles City dispatcher. Prior to arresting

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Williams, Krausz personally confirmed that Williams had been
drinking when he 'I [detected] alcohol on Mr. Williams's breath."

We conclude that Krausz had probable cause to arrest Williams

because he obtained information that Williams had been drinking

through a chain of reliable sources, and because he personally

observed the odor of an alcoholic beverage from Williams's breath

during his conversation with Williams at the hospital. We hold

that Krausz had sufficient evidence to warrant a reasonable person

to believe that Williams had been driving while under the influence

of alcohol.

LACK OF JURISDICTION

Williams asserts that Krausz did not have jurisdiction to

arrest him because his accident did not occur within the Miles City

city limits or within five miles thereof, as required by

§ 7-32-4301, MCA. However, we hold that § 7-32-4301, MCA, is not

determinative of Krausz's authority because he was acting at the

request of, and based on the authority of Paul Hazelton of the

Montana Highway Patrol.
Section 44-11-101, MCA, provides:

A peace officer or any law enforcement entity of any
county or municipality or a state government law
enforcement entity may request the assistance of a peace
officer from another law enforcement entity within the
state of Montana. A peace officer, while in the
jurisdiction of the reauestinq officer or entitv and
while on such reuuest for assistance, has the same
powers, duties, rights, Drivileqes, and immunities as a
peace officer of the requestins entity and is under the
authoritv of the reuuestinq officer or entity.
(Emphasis added.)

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 Hazelton's call to the Miles City Police dispatcher was a
request for assistance pursuant 5 44-11-101, MCA. Krausz responded

to the request, identified himself to Williams, and explained that

he was acting on behalf of the Montana Highway Patrol. Since
Hazelton had jurisdiction over Williams's accident pursuant to

§ 44-l-1003, MCA, he had the statutory authority to request

Krausz's assistance. Therefore, we conclude that Krausz had

jurisdiction to arrest Williams pursuant to 5 44-11-101, MCA.
We affirm the District Court and hold that the court's denial

of Williams's motion to suppress was correct as a matter of law.

We concur: