No. 86-413
I N THE SUPREME COURT O F THE STATE OF MONTANA
1987
STATE OF MONTANA, C I T Y OF EUREKA,
P l a i n t i f f and R e s p o n d e n t ,
-VS-
RONALD RAY McDOLE,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L i n c o l n ,
T h e H o n o r a b l e R o b e r t M. H o l t e r , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
S c o t t B. Spencer, L i b b y , Montana
For Respondent:
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
G e o r g e Schunk, A s s t . A t t y . G e n e r a l , Helena
D a v i d W. H a r m a n , L , i b b y , Montana
--
S u b m i t t e d on B r i e f s : Dec. 4, 1986
Decided: March 2 3 , 1 9 8 7
iiikLL *,u Clerk
4'
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
After a jury trial in the Nineteenth Judicial District,
Lincoln County, appellant was convicted of driving under the
influence of alcohol (DUI) and leaving the scene of an acci-
dent. We affirm.
The issues are:
1. Did the District Court err in admitting evidence
obtained by a city police officer during a warrantless search
outside the city limits?
2. Did the District Court err by not instructing the
jury on the mental state element of the DUI charge?
In November 1985, Mr. McDole was driving on the Pinkham
Mountain Road near Eureka, Montana. Four witnesses testified
at the District Court jury trial that Mr. McDole was driving
erratically and swerving from side to side on the road. One
of the witnesses who had observed Mr. McDole's driving called
the Eureka police department to report Mr. McDole as a possi-
ble DUI driver. In addition, a fifth witness at the trial
testified that Mr. McDole's vehicle hit her vehicle while she
was stopped at a stop sign in the city limits and then backed
up and left the scene of the accident. This fifth witness
testified she then followed Mr. McDole to his residence,
recorded his license plate number, and proceeded to the
police station to report the accident.
A Eureka police officer responded to the possible DUI
and leaving the scene of the accident call and drove to Mr.
McDole's residence less than a mile outside the Eureka city
limits. There, he confirmed that the truck in the driveway
fit the dispatcher's description of the vehicle and license
plate number involved in the accident and that the truck hood
was still warm. Mr. McDole was arrested, given a breath
test, and identified by the witness whose car had been hit.
Mr. McDole's breath sample indicated a .23 alcohol content.
Mr. McDole was charged with violation of $ 61-8-401,
MCA, driving under the influence, and 5 61-7-105, MCA, duty
to give information and render aid. Mr. and Mrs. McDole and
two of Mr. McDole's sisters testified on the defendant's
behalf at the jury trial. Mr. McDole's defense was that a
defective wheel bearing caused his vehicle to swerve, that he
had not been in an accident, and that he had begun drinking
only after arriving at home.
At the District Court jury trial, Mr. McDole was con-
victed of DUI and leaving the scene of an accident. He was
sentenced to 180 days (with all but 7 days suspended) and
fined $500 for the DUI, which was his second offense, and
$100 for his failure to stop at an accident scene. Mr.
McDole appeals.
I
Did the District Court err in admitting evidence ob-
tained by a city police officer during a warrantless search
outside the city limits?
Mr. McDole argues that his arrest was illegal because it
was made outside the Eureka city limits and without an arrest
warrant. He believes that because the arrest was illegal all
evidence resulting from the arrest, including the breath test
results, should have been excluded from evidence at the lower
court level. Mr. McDole maintains that because the City of
Eureka could not produce a statute authorizing its police
officers to make arrests within five miles of the city limits
in accordance with 5 7-32-4301, MCA, the police officer was
without authority to arrest him. We disagree.
In Montana a city or town may authorize its police force
to make arrests within 5 miles of a city pursuant to
5 7-32-4301, MCA, which provides:
The city or town council has power to make regula-
tions authorizing the police of the city or town to
make arrests of persons charged with crime:
(1) within the limits of the city or town;
(2) within 5 miles thereof; and
(3) along the line of water supply of the city or
town.
If Eureka had enacted an ordinance authorizing its police
officers to make arrests within 5 miles of the Eureka city
limits, this issue would not be here. However, Eureka did
not enact such an ordinance.
There is no question that Mr. McDole's arrest would have
been legal under S 46-6-401 (1)(d), MCA, if that arrest had
been made within the Eureka city limits. Section
46-6-401 (1) (d), MCA, provides:
A peace officer may arrest a person when: ... (d)
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 hit and run accident in particular, as well as the re-
ported erratic driving, clearly required Mr. McDole's immedi-
ate arrest in order to prevent his getting in additional
accidents and possibly seriously injuring someone. In addi-
tion, the preservation of Mr. McDole's blood alcohol content
required his immediate arrest. State v. Ellinger (Mont.
1986), 43 St.Rep. 1778, 1780, P.2d - I .
- However,
Mr. McDole's arrest was not made within Eureka so we cannot
rely on S 46-6-401 (1)(d), MCA, but can only use it as
guidance.
It is a well established general rule that a law en-
forcement officer acting outside his jurisdiction without a
warrant may not make arrests. An exception to this rule is
the arrest made under circumstances which would authorize a
private citizen to make the arrest. See generally: Annot.,
Validity, In State Criminal Trial, of Arrest Without Warrant
by Identified Peace Officer Outside of Jurisdiction, When Not
in Fresh Pursuit, 34 A.L.R. 4th 328 (1984); 5 Arn.Jur.2d
Arrests $ 50, (1962, Supplement 1986); and Restatement (Sec-
ond) of Torts $ 121 (1965, Supplement 1975, 1984).
In Montana, a private citizen may make an arrest pursu-
ant to $ 46-6-502, MCA, which provides:
A private person may arrest another when:
(1) he believes on reasonable grounds that an
offense is being committed or attempted in his
presence;
(2) a felony has in fact been committed and he
believes on reasonable grounds that the person
arrested has committed it; or
(3) he is a merchant, as defined in 30-11-301,
and has probable cause to believe the other is
shoplifting in the merchant's store.
By enacting 5 7-32-4301, MCA, (allowing a town to authorize a
police force to make arrests within 5 miles of town),
$ 46-6-502, MCA, (authorizing private citizens to make ar-
rests), and $ 46-6-411, MCA, (authorizing a peace officer
from another state who enters this state in close pursuit to
make an arrest), it is clear Montana no longer adheres to the
old common law rule strictly prohibiting arrests outside an
officer's jurisdiction.
A police officer outside his jurisdiction has not lost
his characteristics of being a citizen and has all the arrest
capabilities that a private citizen has. Thus, we hold that
if an arrest by a private citizen would be lawful under the
existing circumstances, the arrest by an officer out of his
jurisdiction would be lawful.
In this case, the record discloses that an individual
called the Eureka police department reporting Mr. McDole as a
possible DUI suspect at 4:41 p.m. A police officer was
dispatched to intercept Mr. McDole. Then a second person
involved in an accident with Mr. McDole went to the police
station at 4:55 p.m. and reported the accident, reported Mr.
McDole's leaving the scene of that accident, and reported
where Mr. McDole was parked. The police officer previously
dispatched was re-routed to the address .8 of a mile outside
the Eureka city limits and arrived at Mr. McDole's residence
at 5: 05 p.m. He confirmed that the truck parked there fit
the dispatcher's identification of the vehicle and license
number involved in the earlier incidents and that the truck
hood was warm. The officer testified that Mr. McDole came
out of his residence, walked up to the officer with his hands
in the air, appeared intoxicated, and said: "Take me! Take
me!" The officer then arrested Mr. McDole for leaving the
scene of the accident, took him to the station at 5:08 p.m.,
read him the DUI forms, gave him a breath test, filled out
the requisite arrest forms, and had the woman involved in the
hit and run identify Mr. McDole.
With that background, there is no question that both the
private citizen who observed Mr. McDole's erratic driving and
the private citizen involved in the accident with Mr. McDole
could have arrested Mr. McDole pursuant to Montana's citizen
arrest statute. In this case, the trained Eureka police
officer, armed with the citizen reports and his own observa-
tions, also had the authority to make the arrest in his
capacity as a private citizen.
The Eureka police officer confirmed the citizen reports
by positively identifying the truck, with its warm hood,
involved in the erratic driving and accident. Perhaps the
strongest confirmation came when Mr. McDole stepped out of
his house in an apparently intoxicated condition, held his
hands out, and said: "Take me! Take me!" This statement
confirmed the likelihood that Mr. McDole was the driver of
the truck when it was involved in the hit and run and erratic
driving.
We conclude that the Eureka police officer, acting in
his capacity as a private citizen, made a valid arrest of Mr.
McDole. This result is in harmony with Montana's criminal
statutes which intend to limit injury of person or property.
If the police officer had not arrested Mr. McDole, it is
quite possible that he might have commenced driving again in
his intoxicated condition and critically injured himself or
others. Accordingly, Mr. McDole's arrest was legal and all
the evidence from that arrest was admissible.
I1
Did the District Court err by not instructing the jury
on the mental state element of the DUI charge?
Mr. McDole maintains that $ 45-2-103 (1), MCA, requires
one of three mental states to be proven for all but absolute
liability offenses. Section 45-2-104, MCA, provides that
absolute liability cases are limited to offenses subject to
fines not exceeding $500. A person convicted of a DUI can be
fined more than $500 and sentenced to jail time. Therefore,
Mr. McDole maintains that DUI is not an absolute liability
offense and thus requires a mental state jury instruction.
We disagree.
Title 45 covers crimes generally and the mental state
requirement found in $ 45-2-101, MCA, applies to those
crimes. The DUI statute, $ 61-8-401, MCA, falls under the
motor vehicle section of the Montana Code Annotated. If a
person is under the influence of alcohol or drugs and in
physical control of a vehicle on the ways of Montana open to
the public, then that person can be found guilty of driving
under the influence. Section 61-8-401, MCA. As a leading
DUI expert states:
Drunk driving legislation is intended to prohibit
drunken operation "under any and all circumstanc-
es." The act of driving a vehicle under the influ-
ence of alcohol or drugs, or both, is "itself the
crime." The state is not required to show "any
particular mental state" except that the driver was
"under such influence." If intent were an element
of the offense, situations could arise in which
defendants could not be convicted under the statute
because they were too intoxicated to form the
requisite intent. The paradoxical and absurd
result would be that the more intoxicated the
driver became the better his chances of avoiding
liability under the statute.
Erwin, Defense - Drunk Driving Cases $ 1.05 (1986). Put
of
another way, the District Court Judge in this case stated:
"Well, it doesn't make any difference what your state of mind
is, you just don't operate cars on the highway under the
influence."
We hold that the District Court did not err by not
instructing the jury on the mental state element of Mr.
McDole's DUI charge. Driving under the influence is an
absolute liability offense not requiring the proof of a
mental state by the State.
Affirmed.
We Concur: --F