Brunette v. State

• Decision Date: 31 May 2016
• Docket Number: No. DA 15–0551.,DA 15–0551.
• Citation: 383 Mont. 458,2016 MT 128,372 P.3d 476
• Parties: Christopher BRUNETTE, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

383 Mont. 458

372 P.3d 476

2016 MT 128

Christopher BRUNETTE, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

No. DA 15–0551.

Supreme Court of Montana.

Submitted on Briefs April 6, 2016.

Decided May 31, 2016.

For Appellant: Terryl T. Matt, Matt Law Office, PLLC, Cut Bank, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Robert A. Smith, Attorney at Law, Cut Bank, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Christopher Brunette appeals the order of the Ninth Judicial District Court, Glacier County, denying his petition for reinstatement of his driver's license. We address Brunette's claims on appeal under a single issue:

Whether the District Court erred in denying Brunette's petition to reinstate his driver's license.

¶ 2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 On April 11, 2015, Officer Brandon Brotnov was on patrol in Cut Bank, Montana. At 12:54 a.m., the police department dispatch received a call from an unknown officer to run a license plate check on Brunette's vehicle, which was parked on Central Avenue. Officer Robert Snyder also was on patrol that night and told Officer Brotnov about Brunette's vehicle.

¶ 4 Sometime later, Officer Brotnov observed Brunette's vehicle parked on Central Avenue. When Officer Brotnov drove past Brunette's parked vehicle, Brunette turned around and headed in the opposite direction. Officer Snyder and Officer Brotnov continued to patrol the area and discussed Brunette's whereabouts; a portion of a transcript of radio communication between Officer Brotnov and Officer Snyder makes clear that the Officers discussed Brunette's whereabouts for approximately five minutes. During this time, Officer Brotnov observed Brunette pull over and change directions twice. Officer Brotnov began to follow Brunette, observed him make a right-hand turn without using his turn signal, and initiated a traffic stop at approximately 1:40 a.m.

¶ 5 At the time Brunette made the turn, Officer Snyder was approaching in the oncoming lane. Officer Brotnov testified that his report indicated that after witnessing Brunette fail to use his turn signal, but prior to initiating the traffic stop, he observed Brunette almost strike a parked vehicle. At the hearing, however, Officer Brotnov testified, after viewing footage from his dash cam, that he was mistaken about Brunette almost striking the vehicle.

¶ 6 After stopping Brunette, and before leaving his vehicle, Officer Brotnov had dispatch begin the suggested deprivation period.¹ Officer Brotnov approached Brunette's vehicle and detected a slight odor of an alcoholic beverage and cigarette smoke. Officer Brotnov observed Brunette have difficulty retrieving his driver's license and the vehicle's registration and insurance. Brunette explained to Officer Brotnov that he was unsure of where the registration and insurance were because it was a company vehicle. Officer Brotnov observed further that Brunette's eyes were red and watery and that his speech was slurred. Upon questioning, Brunette admitted that he had consumed alcoholic beverages that evening.

¶ 7 Officer Brotnov then administered standardized field sobriety tests, including a portable breath test (PBT). The PBT indicated a blood alcohol concentration of 0.143. Officer Brotnov placed Brunette under arrest for driving under the influence in violation of § 61–8–401, MCA

. At the detention center, Brunette refused to submit to an Intoxilyzer breath test and his driver's license was suspended pursuant to § 61–8–402, MCA.

¶ 8 On April 20, 2015, Brunette filed a petition to reinstate his driver's license pursuant to § 61–8–403, MCA

. In the petition, he argued that Officer Brotnov did not have reasonable grounds to conduct the stop. The District Court held an evidentiary hearing on May 20, 2015. During Officer Brotnov's testimony, Brunette's counsel questioned him about his case report and played the dash cam video and the body cam recording, but did not offer or enter any of these items into evidence.

¶ 9 At the hearing's conclusion, the District Court made a number of oral findings. The court expressed “concerns about officer conduct on that night.” Those concerns included: that an officer “ran” Brunette's license plate nearly an hour before he was pulled over; that the Officers discussed Brunette's whereabouts and may have been “targeting this individual”; and that Officer Brunette began the suggested deprivation period before his initial contact with Brunette. The court found, however, that “clearly there was a lack of a turn signal that was a traffic stop.” The court found further that the turn signal violation, the watery eyes, and the PBT “may be sufficient” to create reasonable suspicion, “along with the other factors.” The District Court ultimately directed counsel to brief the officer conduct issues because it was unsure whether those issues “create[ ] a problem.”

¶ 10 Both parties submitted briefs following the evidentiary hearing addressing the issues about which the District Court expressed concerns. In his briefing, Brunette alleged for the first time that Officer Snyder failed to dim his high-beam lights as he was approaching Brunette in the oncoming lane, which Brunette claimed contributed to his failure to use his turn signal. Brunette's brief also contained a portion of the transcript of the radio exchange between Officer Snyder and Officer Brotnov, which he obtained after the hearing. The District Court issued its order denying Brunette's petition to reinstate his driver's license on August 17, 2015. The court's order focused on whether the stop was pretextual. Brunette appeals.

STANDARD OF REVIEW

¶ 11 We review a district court's ruling on a petition for reinstatement of a driver's license to determine whether the court's findings of fact are clearly erroneous. Kummerfeldt v. State, 2015 MT 109, ¶ 8, 378 Mont. 522, 347 P.3d 1233

. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake. Kummerfeldt, ¶ 8. We review a district court's conclusions of law to determine if they are correct. Kummerfeldt, ¶ 8. The suspension of a driver's license is presumed to be correct; therefore, the petitioner bears the burden of proving that the State's action was improper. Brown v. State, 2009 MT 64, ¶ 8, 349 Mont. 408, 203 P.3d 842.

DISCUSSION

¶ 12 Whether the District Court erred in denying Brunette's petition to reinstate his driver's license.

¶ 13 In a driver's license reinstatement proceeding, a district court is limited to considering the issues set forth in § 61–8–403(4)(a), MCA

. Section 61–8–403(4)(b), MCA ; Kummerfeldt, ¶ 10 (citing Ditton v. DOJ Motor Vehicle Div., 2014 MT 54, ¶ 30, 374 Mont. 122, 319 P.3d 1268 ). Relevant here, the issues include 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 and the person was placed under arrest for violation of 61–8–401 or 61–8– 465;

...

(iv) the person refused to submit to one or more tests designated by the officer.

Section 61–8–403(4)(a)(i), (iv), MCA

. It is undisputed that Brunette refused to submit to a breath test; therefore, the court's focus was limited to the factors set forth in § 61–8–403(4)(a)(i), MCA.

A. The Record on Appeal

¶ 14 We first address the record on appeal. In his briefing to this Court, Brunette claims that the dash cam video shows that Officer Snyder had his high-beam lights on as he approached Brunette and “that Officer Brotnov clearly failed to stop at a stop sign and yield at a yield sign as he pursued Mr. Brunette.” Because the Officers broke the traffic code, Brunette claims that any evidence obtained through the Officers' wrongdoing should be excluded. Brunette also references evidence obtained from the body cam recording. Brunette contends that the dash cam video “of the stop was viewed, discussed at length, and consistently referred to during the hearing,” and that it was “merely an oversight not to have admitted it into evidence.” Brunette argues “that the video is incorporated through reference and should be admitted.” Brunette relies extensively on a portion of the transcript of Officer Brotnov's and Officer Snyder's radio communications in asserting that the stop was pretextual. Brunette argues that the State failed to provide the radio transcript before the hearing. Moreover, Brunette contends that the radio transcript is part of the record because a portion of the radio transcript was included in his initial brief to the District Court.

¶ 15 The State counters by arguing that Brunette's reference to and reliance on the Officers' radio exchange transcript, the dash cam video, and the body cam recording violate the Montana Rules of Appellate Procedure because they are outside of the record on appeal. Accordingly, the State requests that this Court disregard any reference to the facts allegedly obtained from those sources.

¶ 16 This Court considers only the district court record, including “the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court.” M. R. App. P. 8(1)

. “[P]arties on appeal are bound by the record.” State v. MacKinnon, 1998 MT 78, ¶ 15, 288 Mont. 329, 957 P.2d 23 (quoting State v. Hatfield, 256 Mont. 340, 344, 846 P.2d 1025, 1028 (1993) ) (internal quotation marks omitted). Although the dash cam video and the body cam recording were both played at the hearing, neither was offered or entered into evidence and they are not included in the District Court record.

Accordingly, we will not...