NO. 95-319
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN THE MATTER of the Suspension
of the Driver's License of JOHN
D. BAUER,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Wm. Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bruce Becker, Livingston, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer
Anders, Helena, Montana; Tara Depuy, Park County
Attorney, Kendra K. Anderson, Deputy Park County
Attorney, Livingston, Montana
Submitted on Briefs: November 9, 1995
Decided: January 30, 1996
Filed:
I
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Appellant, John D. Bauer (Bauer), appeals the order of the
District Court for the Sixth Judicial District, Park County,
denying Bauer's petition to reinstate his driver's license and
suspending Bauer's driver's license for 90 days. We affirm.
We address the following issue on appeal:
Did the arresting officer have reasonable grounds to believe
that Bauer was driving under the influence of alcohol?
BACKGROUND
On January 14, 1995, Park County Deputy Sheriff Steffins was
on a routine patrol south of Livingston. At 2:34 a.m., he received
a call to back up Livingston City Police Officer Brack. As Deputy
Steffins headed north toward Livingston, he observed a unique,
dark, 1964 Ford sedan also travelling toward Livingston. Deputy
Steffins paced the car going 75-85 miles per hour. He noticed the
car braking hard around the curves and observed the car swerve
across the center line more than once. At the time, Deputy
Steffins estimated his own rate of speed at about 90-95 miles per
hour. Deputy Steffins testified that he would have stopped the
1964 Ford sedan immediately for investigation of a DUI if he had
not been responding to a request for back up. He did however,
radio dispatch to give a description of the car and report his
observations.
As Deputy Steffins passed the vehicle, he noticed a male
driver and a passenger in the front seat. Shortly after passing
the vehicle, the dispatcher advised Deputy Steffins that he was no
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longer needed in Livingston to back up Officer Brack. At 2:36
a.m., Deputy Steffins pulled onto a Forest Service road to wait for
the 1964 Ford sedan to pass. He saw headlights approach from the
south, but the vehicle turned off of the highway. Deputy Steffins
drove back to where he had last seen the vehicle, but could not
find it. He notified the dispatcher that he was discontinuing his
search and would return to his routine patrol in Livingston.
Between 2~46 and 2~54 a.m., Deputy Steffins responded to a
shoplifting call and a domestic abuse call. While searching for
one of the subjects involved in the domestic abuse, Deputy Steffins
saw the unique, dark, 1964 Ford sedan. He pulled the vehicle over
at 3:13 a.m., 38 minutes after he first saw the vehicle south of
Livingston, and asked for registration, proof of insurance, and
identification. Deputy Steffins asked Bauer, the car's driver, why
he had turned off the highway and where he had gone. Bauer
responded that he had gone to an old gravel pit. While talking to
Bauer, Deputy Steffins noticed a strong smell of alcohol on Bauer's
breath, that Bauer's eyes were bloodshot and glassy, and that
Bauer's speech was very slow and deliberate.
Based on his observations of Bauer's driving and his
observations of Bauer's condition, Deputy Steffins asked Bauer to
perform some physical maneuvers. Bauer was not able to complete
his ABC's, showed no elliptical movement in the Romberg test, and
could not stand on one leg past the count of ten.
At 3:lP a.m., Deputy Steffins placed Bauer under arrest for
operating a motor vehicle while under the influence of alcohol.
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Deputy Steffins transported Bauer to the Park County jail and cited
him for driving while under the influence of alcohol, night
speeding, and not having proof of liability insurance. Deputy
Steffins read Montana's Implied Consent Law to Bauer, yet Bauer
refused to submit to a breathalyzer test. Deputy Steffins issued
Bauer a 72-hour driving permit and released him on bail.
On January 25, 1995, the Montana Department of Justice issued
its order suspending Bauer's driver's license. Bauer filed a
petition for reinstatement of his driver's license on February 14,
1995, which the District Court for the Sixth Judicial District,
Park County, denied. Bauer appeals the suspension of his driver's
license and the District Court's order denying his petition to
reinstate his driver's license.
DISCUSSION
Did the arresting officer have reasonable grounds to believe
that Bauer was driving under the influence of alcohol?
Bauer contends that at the moment of the arrest, Deputy
Steffins did not have probable cause to stop Bauer and therefore
did not have reasonable grounds to believe that Bauer had been
driving or was in physical control of a vehicle while under the
influence of alcohol. Specifically, Bauer claims that § 61-a-402,
MCA, the Implied Consent Law, requires an officer to have
reasonable grounds to believe that a driver of a motor vehicle is
under the influence of alcohol before he can legally stop the
driver and require the driver to submit to a breathalyzer test.
Moreover, Bauer claims that under § 61-8-403, MCA, a driver who
refuses to take a breathalyzer test under the Implied Consent Law,
4
can have his or her driving privileges restored where the officer
did not have reasonable grounds to believe the accused was
operating a motor vehicle under the influence of alcohol.
The standard of review of a district court's findings of fact
is whether the findings are clearly erroneous. Daines v. Knight
(19951, 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia
Grain Intern. v. Cereck (19931, 258 Mont. 414, 417, 852 P.2d 676,
678). In Interstate Production Credit v. DeSaye (1991), 250 Mont.
320, 323, 820 P.2d 1285, 1287, we adopted a three-part test to
determine if a finding of fact is clearly erroneous. If we
determine that the finding is supported by substantial credible
evidence and therefore meets the first prong of the test, the
finding of fact is not clearly erroneous. We review conclusions of
law to determine whether the district court's conclusions were
correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686.
Title 61, chapter 8, part 4, MCA, covers driving under the
influence of alcohol or drugs. Section 61-a-402, MCA, provides
that any person who operates a motor vehicle on the ways of the
state open to the public is deemed to have given consent to a
chemical test to determine the alcoholic content of his or her
blood. A person may refuse to submit to the chemical test, but if
the person refuses to submit to the test, the arresting officer
must seize his or her driver's license. Specifically, §§ 61-a-402
and 403, MCA, provide as follows:
61-E-402. Blood, breath, or urine tests. (1) A
person who operates or is in actual physical control of
5
a vehicle upon ways of this state open to the public is
considered to have given consent, subject to the
provisions of 61-8-401, 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 by 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. The test or
tests must be administered at the direction of a peace
officer who has reasonable srounds to believe that the
person has been drivincr or has been in actual phvsical
control of a vehicle upon wavs of this state open to the
public while under the influence of alcohol, druss, or a
combination of the two. . . . [Emphasis added.]
61-E-403. Right of appeal to court. (1) Within 30
days after notice of the right to a hearing has been
given by a peace officer, a person may file a petition to
challenge the license suspension or revocation . .
(4) (a) The court shall take testimony and examine'the
facts of the case, except that the issues are limited to
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;
(ii) the person was placed under arrest; and
(iii) the person refused to submit to the test or tests.
(b) The court shall determine whether the petitioner is
entitled to a license or whether the petitioner's license
is subject to suspension or revocation.
In Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254,
841 P.2d 1137, we addressed the issue of whether there was
sufficient evidence in the record to support the trial court's
conclusion that the arresting officer had reasonable grounds to
suspect that the appellant had been driving under the influence of
alcohol. In -r
Jess a witness followed the appellant for some
distance and observed the appellant drive erratically and swerve
across the center line. The witness notified the Columbus
sheriff's office of appellant's driving and gave the officers the
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license plate number and a description of the vehicle. An officer
from the dispatch station located the vehicle outside of a bar.
When the officer found the appellant, the appellant had bloodshot
eyes, slurred speech, and was staggering. -, 841 P.2d at 1141.
Jess
In -I the appellant claimed that the officers did not have
Jess
the requisite particularized suspicion to investigate him. Thus,
this Court analyzed the issue of whether the arresting officer had
reasonable grounds to suspect that the appellant had been driving
under the influence of alcohol in terms of whether the arresting
officer had a particularized suspicion to warrant an investigatory
stop. We noted that "[iln determining whether an officer is
justified in making an investigatory stop, the State must prove the
existence of a 'particularized suspicion."' Jess, 841 P.2d at 1140
(citing Matter of Suspension of Driver's License of Blake (1986),
220 Mont. 27, 712 P.2d 1338). We concluded that although the
officers did not see the appellant driving, the witness's
information combined with the appellant's condition created
sufficient evidence that the officer had reasonable grounds to
suspect the appellant had been driving under the influence of
alcohol and had reasonable grounds to detain him. -, 841 P.2d
Jess
at 1141. We note that "reasonable grounds" provided for in §§ 61-
8-402 and 403, MCA, and discussed in Jess is really the same test
as "particularized suspicion" provided for in § 46-5-401, MCA, and
discussed in State v. Reynolds (1995), -Mont. __, 899 P.2d 540,
541-42, 52 St.Rep. 600, 602.
We recently set forth an analysis of particularized suspicion
for an investigative stop in Reynolds, 899 P.2d at 541-42. In
Revnolds, we noted that the Montana Legislature amended 5 46-5-401,
MCA, the investigative stop statute, to comport with United States
Supreme Court and Montana case law. Section 46-5-401, MCA, now
supports an investigative stop on the basis that the arresting
officer has a particularized suspicion that an offense has been
committed. Section 46-5-401, MCA, provides:
Investigative stop. In order to obtain or verify an
account of the person's presence or conduct or to
determine whether to arrest the person, a peace officer
may stop any person or vehicle that is observed in
circumstances that create a particularized suspicion that
the person or occupant of the vehicle has committed, is
committing, or is about to commit an offense. [Emphasis
added. 1
When a police officer seizes a person, such as in a brief
investigatory stop, the Fourth Amendment right against unreasonable
searches and seizures applies. Revnolds, 899 P.2d at 542 (citing
Terry v. Ohio (19681, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20
L.Ed.2d 889, 899). Recognizing that an investigatory stop must be
justified by some objective manifestation that the person stopped
is, has, or is about to be, engaged in criminal activity, the
United States Supreme Court set forth, and this Court adopted, a
two-part test to evaluate whether a police officer has sufficient
cause to stop a person. United States v. Cortez (1981), 449 U.S.
411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628; State v.
Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296.
First, the state must show objective data from which an
experienced officer can make certain inferences. Second, the state
8
must show a resulting suspicion that the occupant of a certain
vehicle is or has been engaged in wrongdoing. Gooher, 631 P.Zd at
296. In Gopher, we held that a particularized suspicion existed to
justify stopping a vehicle that slowly drove past and exhibited
unusual curiosity in the crime scene.
In Reynolds, this Court noted that the issue of whether or not
a particularized suspicion existed in order to justify an
investigatory stop is factually driven. Revnolds, 899 P.2d at 543.
For example, in Blake, we held that a petitioner's exhibiting
patterns consistent with a person driving while under the influence
of alcohol by swerving into the other lane and driving in the
vicinity of several bars at around 2:00 a.m., was sufficient to
support a particularized suspicion that the petitioner may have
been driving while under the influence of alcohol. Blake, 712 P.2d
at 1341.
Similarly, in State v. Morsette (1982), 201 Mont. 233, 654
P.2d 503, the totality of the circumstances created a
particularized suspicion justifying an investigatory stop. After
being alerted that a nearby farm had been broken into, a neighbor
saw an unfamiliar truck driving by the house very fast. Acting on
the information from the neighbor, a deputy followed the tire
tracks from the nearby farm to the truck that matched the
neighbor's description. Although the deputy did not see the truck
commit any traffic violations, nor did the deputy stop the truck
immediately after the farm had been broken into, we nonetheless
held that the totality of the circumstances created a
particularized suspicion. Morsette, 654 P.2d at 507.
When the totality of the circumstances does not create a
particularized suspicion, we have held the investigatory stop to be
unjustified. For example, in Grinde v. State (1991), 249 Mont. 77,
813 P.2d 473, we held that the squeal of tires alone did not
justify an investigatory stop because the officer did not see any
evidence of erratic driving. Similarly, in State v. Anderson
(1993), 258 Mont. 510, 853 P.2d 1245, the facts were not sufficient
for us to hold that there was a particularized suspicion warranting
an investigative stop because the police had not seen the vehicle
violate any traffic laws justifying a traffic stop.
In contrast, Deputy Steffins saw Bauer cross the center line
and drive at a speed well over the speed limit. Pursuant to § 46-
5-401, MCA, a peace officer may stop any vehicle observed in
circumstances that create a particularized suspicion that the
occupant in the vehicle has committed an offense. Clearly,
observing the same dark, 1964 Ford sedan in Livingston that Deputy
Steffins had seen crossing the center line, braking hard around
corners, and speeding toward Livingston 38 minutes previously,
suffices as a circumstance creating a particularized suspicion.
The 38-minute time lapse did not vitiate Deputy Steffins'
reasonable suspicion given the circumstances of the unique car, the
time of day, and the prior traffic violations. Therefore, we
conclude that, under the totality of the circumstances, the facts
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in this case supported a particularized suspicion that Bauer had
committed an offense.
If, after making a justified investigative stop, the police
officer reasonably believed the driver to be under the influence of
alcohol, he can make an arrest and require submission to a chemical
test. Grinde, 813 P.2d at 476. In other words, "[al founded
suspicion to stop for investigative detention may ripen into
probable cause to arrest through the occurrence of facts or
incidents after the stop." Jess
-?---.-I 841 P.2d at 1141. In -I we
Jess
held that the arresting officers had probable cause to arrest the
appellant based on their observations of appellant's behavior, such
as the appellant's bloodshot eyes and slurred speech. Jess
-r 841
P.2d at 1141.
In the instant case, after stopping Bauer for an investigative
stop, Deputy Steffins noticed the smell of alcohol on Bauer's
breath, noticed that Bauer's eyes were bloodshot and glassy, and
noticed that Bauer's speech was slow and deliberate. These were
reasonable grounds for Deputy Steffins to ask Bauer to submit to
physical maneuvers. After Bauer was not able to perform the
physical maneuvers, Deputy Steffins reasonably asked Bauer to take
a breathalyzer test which Bauer refused to do. Pursuant to § 61-8-
402(3), MCA, Deputy Steffins seized Bauer's driver's license.
After considering the relevant factors in 5 61-a-403, MCA, the
District Court appropriately denied Bauer's petition to reinstate
his driver's license. Accordingly, we conclude that substantial
11
credible evidence supports the District Court's decision to deny
Bauer's petition to reinstate his license.
Affirmed.
We Concur:
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