Boland v. State
| Decision Date | 20 June 1990 |
| Docket Number | No. 89-355,89-355 |
| Citation | 792 P.2d 1,242 Mont. 520 |
| Parties | Patrick James BOLAND, Petitioner and Respondent, v. STATE of Montana, Respondent and Appellant. |
| Court | Montana Supreme Court |
Marc Racicot, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, Patrick Paul, Co. Atty., Stephen Hagerman, Deputy, Great Falls, for respondent and appellant.
Patrick F. Flaherty, Flaherty & Winner, Great Falls, for petitioner and respondent.
The State of Montana appeals from Eighth Judicial District Judge John McCarvel's judgment which concluded that the officer who arrested Patrick Boland for driving under the influence of alcohol did not have reasonable cause to arrest Boland at the time the officer stopped him. The District Court held that Boland was therefore entitled to immediate restoration of his driver's license and driving privileges. We reverse the lower court's judgment.
Only one issue is presented: Was the District Court's ruling that the arresting officer did not have reasonable cause to stop Boland and arrest him for driving under the influence of alcohol clearly erroneous given the evidence before the court?
At approximately one in the morning of January 26, 1989, police officer Donald Scheele observed a car weaving down Central Avenue in downtown Great Falls, Montana. From a distance of about three car lengths, Officer Scheele followed the vehicle for one and one-half to two blocks. Because he was transporting a prisoner, Officer Scheele radioed for assistance and Officer Steve Lohse, who was patrolling the area, agreed to continue the surveillance. Officer Scheele relayed the vehicle's description and license plate number to Officer Lohse.
Officer Lohse then followed the vehicle for several blocks until it pulled into a restaurant parking lot. While Officer Lohse did not see any indication that the vehicle was being driven erratically, he did observe that the driver stumbled as he got out of the car and had difficulty maintaining his balance. When Officer Lohse asked to see the driver's license he immediately noticed the odor of alcohol on the breath of the driver, Patrick Boland.
Officer Lohse stated that Boland appeared to have been drinking and Boland replied that he had just come from The City Bar. At that point Officer Lohse administered three field sobriety tests. Boland failed two tests and his speech was slurred during the third. At that point Officer Lohse advised Boland he was under arrest for driving under the influence of alcohol. Boland refused to submit to a chemical test.
Following his arrest, Boland's driver's license was suspended in accordance with § 61-8-402, MCA, which provides:
(1) Any person who operates a vehicle upon ways of this state open to the public shall be deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a vehicle while under the influence of alcohol. The test shall be administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol. The arresting officer may designate which one of the aforesaid tests shall be administered.
. . . . .
(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given, but the officer shall, on behalf of the department, immediately seize his driver's license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested 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 and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).
(4) Upon seizure of a resident driver's license, the peace officer shall issue, on behalf of the department, a temporary driving permit, which is valid for 72 hours after the time of issuance.
(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:
(a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license;
(b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license.
. . . . .
(7) All such suspensions are subject to review as hereinafter provided.
Boland then filed a petition for a hearing to determine "whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon the 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" in accordance with § 61-8-403, MCA. The hearing was held before Judge McCarvel on May 9, 1989. At the conclusion of the hearing, the District Court found that Officer Lohse did not "of his own knowledge" have reasonable cause to stop Boland and arrest him for driving under the influence of alcohol. The District Court ordered Boland's driver's license be restored to him. It is from this order the State appeals.
A hearing held under § 61-8-403, MCA, is "a civil proceeding separate and distinct from a criminal trial on the charge of operating a motor vehicle while under the influence of alcohol." Gebhardt v. State (Mont.1989), 775 P.2d 1261, 1265, 46 St.Rep. 1114, 1117 (citing In re Blake (1986), 220 Mont. 27, 31, 712 P.2d 1338, 1341). The purpose of such a hearing is to review whether a petitioner's license was properly revoked following the petitioner's refusal to submit to a chemical test, and the judge determines only:
(1) whether the arresting officer had reasonable grounds to believe the following:
(a) that the petitioner had been driving or was in actual physical control of a vehicle;
(b) that the vehicle was on a way of this state open to the public; and
(c) that the petitioner was under the influence of alcohol;
(2) whether the individual was placed under arrest; and
(3) whether the individual refused to submit to a chemical test. (Emphasis in original.)
Gebhardt, at 1265, 46 St.Rep. at 1117-18.
The only issue at the May 9 hearing was whether the arresting officer had reasonable grounds to believe that the petitioner was under the influence of alcohol. Petitioner Boland did not contest that he was driving the vehicle on a way of this state open to the public, nor did he contest that he had been placed under arrest and refused to consent to a chemical test.
Regarding what constitutes "reasonable grounds" we have recently clarified the standard:
[R]easonable grounds exist if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe that the motorist is under the influence of alcohol.
Gebhardt, at 1266, 46 St.Rep. at 1119.
The District Court seems to base its ruling that the arresting officer did not have reasonable grounds to arrest Boland on two points. First, the district judge stated Officer Lohse did not have personal knowledge that Boland was driving under the influence, but relied on the information radioed to him by Officer Scheele. This...
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