>lo. 85-79
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN THE MATTER OF THE SUSPENSION OF
THE DRIVER'S LICENSE OF WAYNE BLAKE
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Kimberly Kradolfer, Asst. Atty. General, Helena
W. G. Gilbert, 111, County Attorney, Dillon, Montana
For Respondent:
Max A. Hansen, Dillon, Montana
For Amicus Curiae:
Vincent J. Kozakiewicz, Dillon, Montana
Submitted on Briefs: Oct. 3, I985
Decided: January 2 3 1 1986
Filed:
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Petitioner, Wayne Lester Blake's driver's license was
suspended for 90 days pursuant to 5 61-8-402 (5), MCA, for
refusal to take a breathalyzer test. Blake appealed the
suspension of his license to the Fifth Judicial District
Court, pursuant to 5 61-8-403, MCA. Following an evidentiary
hearing, the trial judge stayed the suspension, pending a
final appeal of his decision. The State filed a motion for
rehearing. The motion wa.s heard January 11, 1985. That same
day, the trial judge issued an order affirming his previous
order and, cl-arifying the underlying reasons for the stay.
The State appeals the order denying its petition for
At the outset, there appears to be a. disagreement be-
tween the parties as to the evidence this Court may consider
on appeal. The notice of appeal states in pertinent 'part:
The respondent State of Montana ...
hereby gives
notice ... of its intention to appeal this
Court's order of January 11, 1985, denying the
State's motion for reconsideration of the Court's
underlying order of November 14, 1984. ...
To determine whether the trial court properly denied the
State's petition for rehearing, we must review the record
relied on by the trial judge in reaching his decision to stay
the suspension of petitioner's driver's license. Therefore,
we will review the entire record of this case. See Rule 2,
M.R.App.Civ.P.
Petitioner attended a club meeting on the evening of
October 10, 1984. Following the business meeting, most of
the members played cards. Though he did not play, petitioner
stayed to watch the card games and to social-ize. Petitioner
and Eruce Parker were the last to leave the meeting. They
drained several. water pipes and locked the building prior to
leaving in their respective cars between 1:30 a.m. and ::0
!0
a.m. Petitioner testified that he drank four to five beers
over the course of the evening.
Petitioner ' s route home from the meeting included trav--
eling north on Montana Street through downtown Dillon,
Montana. Officer Scott Zeitner was traveling south on
Montana Street when he observed petitioner drivinq
erratically. Zeitner testified that petitioner swerved in
and out of his own lane numerous times. Petitioner and
Parker, who had traveled behind him from the location of the
club meeting to the point where Zeitner stopped petitioner,
testified that petitioner's driving had not been erratic and
that he had only swerved once. Petitioner testified that he
was forced to swerve into the other lane in order to avoid a
pedestrian. Neither Zeitner nor Parker saw a pedestrian.
Zeitner administered several field sobriety tests to
petitioner, none of which were performed successfully.
Petitioner was arrested and taken to the police station where
he refused to submit to a breathalyzer test. His driver's
license was subsequently suspended.
Petitioner appealed the suspension of his driver's
license to District Court, alleging lack of reasonable
grounds for the police officer to believe petitioner had been
driving a vehicle while under the influence of alcohol.
Section 61-8-403, MCA. However, the trial judge never
reached that issue, holding instead that (1) the initial stop
was illegal for lack of reasonable grounds for the police
officer to believe petitioner was operating a motor vehicle
to the time peti-
while under the influence of alcohol prior - - -
tioner's vehicle was stopped; and (2) since the initial stop
was illegal, petitioner' s driver ' s license should not have
been suspended.
The State filed a motion for rehearing, contending that
the police officer needed only a "particularized suspicion of
some kind of wrong doing" to stop petitioner's vehicle, not
reasonable grounds. Following a hearing, the judge issued an
order January 11, 1985, denying the motion. In that order,
the trial judge held that a review of the evidence confirmed
his initial, controlling finding of fact, that the police
officer was not justified in making the investigatory stop.
However, instead of relying on the "reasonable grounds" test,
the judge stated:
The evidence completely failed to meet the test of
"particularized suspicion," as that term is defined
in State 5 ~ o ~ h e38 St.Rep. 178 and State v.
r
Stem~le39 St.Rep. 1085; all the officer had w a s a
.
A *
"hunch" or "suspicion", and as the Supreme Court
said in State - -
v. Lahr 172 Mt. 32, "mere suspicion
on the part of the officer is not enough."
In its appeal of that order, the State raises three
issues:
1. Whether Officer Zeitner properly stopped petition-
er's vehicle?
2. Whether the District Court erred in considering
hardship factors?
3. Whether petitioner met his burden of proof in chal-
lenging his license suspension?
The proper test for determining whether an officer was
justified in making an investigatory stop is that relied on
by the trial court in its January 11, 1985, order, "a partic-
ularized suspicion of some kind of wrongdoing." State v.
Gopher (Mont. 1981), 631 P.2d 293, 38 St.Rep. 1078. In order
to prove the existence of a "particularized suspicion", the
State must show: " (1) objective data from which an experi-
enced officer can make certain inferences; and (2) a result-
ing suspicion that the occupant of a certain vehicle is or
has been engaged in wrongdoing. . . ." Gopher, 631 P . 2 d at
Section 61-8-403, MCA, sets forth the petitioner's
rights to appeal. It reads:
The department shall immediately notify
any person whose license or privilege to
drive has been suspended or revoked, as
hereinbefore authorized, in writing and
such person shall have the right to file
a petition within 30 days thereafter for
a hearing in the matter in the district
court in the county wherein such person
resides or in the district court in the
county in which this arrest was made.
Such court is hereby vested with
jurisdiction and it shall be its duty to
set the matter for hearing upon 10 days"
written notice to the county attorney of
the county wherein the appeal is filed
and such county attorney shall represent
the state, and thereupon the court shall
take testimony and examine into the facts
of the case, except that the issues shall
be limited to whether a peace officer had
reasonable grounds to believe 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, whether
the person was placed under arrest, and
whether such person refused to submit to
the test. The court shall thereupon
determine whether the petitioner is
entitled to a license or is subject to
suspension as heretofore provided.
Under the statute, the District Judge should have
determined if the police officer had reasonable grounds to
believe the petitioner had been driving while under the
influence of al-cohol,whether the petitioner was placed under
arrest, and wh~therpetitioner refused to submit to the blood
alcohol test. Those were the only issues provided under the
statute, and he did not address them. Instead he focused on
the question of the initial stop and the claimed lack of
reasonable grounds for that stop.
In Petition of Burnham (Mont. 1985) , 705 P. 2d 603, 42
St.Rep. 1342, this Court pointed out that the implied consent
law is a civil administrative proceeding separate and
distinct from the criminal action on the charge 015 driving
while intoxicated. Each proceeds independently of the other.
There is no connection between the criminal statute
prohibiting the operation of the motor vehicle while under
the influence of alcohol and the statutes requiring consent
to a chemical- test to determine blood alcohol content. The
court should have ruled upon the sufficiency of the evidence
to establish that the police officer had reasonable grounds
to believe petitioner was driving under the influence of
alcohol, that petitioner was placed under arrest, and that he
refused to submit to the test. Substantial evidence was
submitted on each of these issues.
In addition, we disagree with the conclusion of the
District Court that the initial stop was illegel for lack of
reasonable grounds for the police officer to believe
petitioner was operating a vehicle under the influence of
alcohol prior to the actual stop of petitioner's vehicle.
There is no dispute that petitioner was driving in the
vicinity of several bars around 2:00 a.m., which is near the
closing time for bars in Montana. In addition, petitioner's
own testimony established that he swerved into the wrong
traffic lane. In itself, the driving of a vehicle into the
wrong traffic lane may be sufficient to constitute a traffic
violation under S 61-8-321, MCA. In addition, such
uncontradicted evidence is sufficient to constitute a
particularized suspicion that the petitioner may have been
driving while under the influence of alcohol. We conclude
that the conduct of Officer Zeitner met the particularized
suspicion test of State v. Gopher.
Issue two is whether the District Court erred in
considering hardship factors. As noted above the court
having disposed of the case on grounds other than provided by
statute, we remand the case for further hearings on whether
the petitioner should be granted a restricted driving permit.
As to issue three, upon remand this matter can be further
considered by the District Court.
The order of the District Court is vacated and the case
remanded to the District Court.
We concur:
( (Zhief Justice f/ \
Justices
Nr. Justice John C. Sheehy, dissenting:
I dissent.
Proceedings to suspend the driver's license of one who
refuses to submit to a chemical test designated by the
arresting officer (section 61-8-402, MCA) and the right of
appeal granted such driver (section 61-8-403, MCA) are civil
in nature. The proceedings therefore are governed by the
Rules of Civil Procedure. Under Rule 52(a), M.R.Civ.P.
"[flindings of fact shall not be set aside unless clearly
erroneous." The majority opinion ignores this rule of
appellate review, ignores the findings of fact made by the
district judge who heard the witnesses, and makes no excuse
for its iqnoratio elenchi.
Following are the pertinent findings of fact made by the
District Court:
1. The petitioner is the President of the Dillon
Jaycees. On October 10, 1984, he together with a
number of his Jaycee associates were engaged in
community service work, at the Club's facilities at
the Beaverhead County Fair Grounds. During the
course of the evening, a quantity of beer was
consumed--petitioner admitted to having "four or
five beers." However much was consumed did not
affect the performance of their duties, and in fact
petitioner secured the Fair Grounds facility, which
involved among other acts, the intricate
manipulation of a complicated bolt lock on a gate.
Each of the members of the work party proceeded to
their homes in separate vehicles. Petitioner
departed the Fair Grounds at approximately 2 a.m.
on October 11, followed by his companion.
2. The petitioner's route to his home involved
stopping at a number of stop signs, including a
railroad crossing. He proceeded north on Montana
Street, followed by his companion, the latter
confirming that all traffic laws were obeyed, and
that petitioner was properly operating his vehicle.
At a point near the 300 block of North Montana, the
petitioner swerved into the south bound lane to
avoid hitting a pedestrian. The following
colleague noted the "swerve", which was the only
"erratic" maneuver in a dozen blocks.
3. A Dillon Police officer, travelling south on
Montana Street also took note of the "swerve." The
officer swore that there were multiple weavings in
and out of petitioner's lane, but admitted his view
was somewhat obstructed by another car. In any
case, the officer turned around and stopped
petitioner a couple of blocks further north on
Montana.
5. This court makes no finding as to the evidence
of sobriety, which may have been adduced at any
time subsequent to the apprehension of petitioner.
This court finds that the onlv issue to be
determined in this proceeding is wgether or not the
officer had "reasonable" grounds to believe that
the petitioner was operating a motor vehicle while
under the influence, prior - - - - he stopped
t6- the time
the suspect's vehicle. (Emphasis in original. )
The right of a police officer to make a warrantless
arrest in Montana is defined by statute. Section
46-6-401(1) (d), MCA, provides that: "A peace officer may
arrest a person when ... he believes --
on reasonable grounds
that the person is committing an offense or that the person
has committed an offense and the existing circumstances
require his immediate arrest." The District Court properly
defined the issue in this case under the statute, and
determined as a conclusion of law:
The conflicting evidence is not sufficient to
establish by a preponderance of the evidence, that
the arresting officer had reasonable grounds in
initially believing that the Bl-ake vehicle was
being operated by one under the influence of
alcohol on October 11, 1984.
The recitation of facts contained in the majority
opinion are at considerable variance from the findings of the
District Court. It is the duty of this Court, in appellate
review, either to accept the findings of fact by the District
Court under Rule 52(a), M.R.Civ.P. or to set them aside as
clearly erroneous. The majority opinion fails to set forth
reasons of any kind why the findings of the District Court,
apparently based on the credibility of the witnesses, should
not be uphel-d by the majority. Only recently, this Court
stated the rules with respect to findings of fact made by a
District Court:
Rule 52 (a), M.R.Civ.P. provides in part: "Findings
of fact shall not be set aside unless clearly
erroneous and due regard shall be given to the
opportunj-ty of the trial court to judge of the
credibility of the witnesses." The Supreme Court
may not subst.itute its judgment for that of the
trial court. The presiding court is confined to
determining if there is substantial credible
evidence to support the findings of fact and
conclusions of law. We view the evidence in the
light most favorable to the prevailing party.
(Citation omitted.) In construing Rule 52(a) this
Court has stated that on review, the trial court's
judgment is presumed correct, and this Court will
draw every legitimate inference to support that
presumption. (Citations omitted.)
Interstate Brands Corp. v. Cannon (Mont. 19851, 708 P.2d 573,
A particularized suspicion of some kind of wrongdoing,
which we set out in State v. Gopher (Mont. 1981), 631 P.2d
293, 38 St.Rep. 1078, must still meet the "reasonable
grounds" test for a warrantless arrest by a police officer
under section 46-6-401(1) (d), MCA. The Gopher test has two
elements which the state must prove:
Primarily applying the rules of Cortez, the State
submits that sufficient particularized suspicion
existed to justify the stop of defendant's car.
The State's burden has two elements: (1
objective data from which an experienced officer
can make certain inferences; and (2) a resulting
suspicion that the occupant of a certain vehicle is
or has been engaged in wrongdoing or was a witness
to criminal activity ...
In Gopher, the police officer had advance information
that a crime had been committed and he was observing the
actions of a slow moving automobile n a residential area.
In the case at bar, the District Court found nothing more
than vehicles in the line of traffic, with one of them making
one swerve. The District Court determined that a single
swerve of a vehicle to avoid hitting a pedestrian did not
suffice to provide reasonable grounds for a warrantless
arrest in this case. Gopher did not suspend section
46-6-401(1) (d), MCA as to the necessity for reasonable
grounds for a warrantless arrest. If it did we don't need a
legislature to make laws.
The majority opinion implies that the District Court did
not rule on the sufficiency of the evidence to establish the
police officer had "reasonable grounds" to believe petitioner
was driving under the influence of alcohol. The foregoing
recitations from the findings of fact and conclusions of law
of the district judge belie that imp,-i-cation.
IV.
More ominous to drivers under the enforcement of traffic
laws in Montana, especially with reference to alcoholic
driving, is the implication in the majority opinion that a
police officer who has placed a driver under arrest may cause
the eventual suspension of the driver's license without
regard to whether the arrest itself was lawful. Incredibly,
the State has argued in this case that the question of the
la-wfulnessof the arrest is not to be considered on review in
this type of case and this Court, by implication, seems to
agree. The State's position is set forth in its reply brief:
It is the State's position that Officer Zeitner's
arrest of Blake was la.wfu1 and that the initial
stop was based on a particularized suspicion of
wrongdoing. -
(See Argument I., infra.) It is also
the State's response to Blake's argument, however,
that the lawfulness of any arrest does not fall
within the purview of what a district court may
review in determining whether license is properly
suspended or revoked pursuant to the implied
consent statute.
Here the State is arguing that section 61-8-403, MCA,
providing for the right of a driver to appeal from the
license suspension limits the District Court to "whether the
officer had reasonable grounds to believe the person had been
driving a motor vehicle upon the highways of the state open
to the public while under the influence of alcohol, whether
the person was placed under arrest, and whether such person
refused to submit to the test." The State contends that
under the statute, the lawfulness of the arrest is not a.t
issue, and if the defenda~ntis in fact under arrest, whether
lawfully accomplished or not, and refuses to submit to a
chemical test of his sobriety, he loses his right to a
driver's license.
That narrow interpretation of section 61-8-403, MCA, by
the State is an issue that should be addressed by the
majority and is not. The implication is left, however, from
the facts of this case, that an unlawful arrest may still
give rise to a suspension of the driver's license.
I would affirm the District Court.
Mr. Justice William E . Hunt, Sr., and Mr. Justice Frank B.
Morrison, Jr., dissenting:
We coneur in the foregoing dissent of 2 r Justice Sheehy.
4.
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