Grinde v. State

• Decision Date: 18 June 1991
• Docket Number: No. 90-463,90-463
• Citation: 249 Mont. 77,813 P.2d 473
• Parties: Jerry GRINDE, Petitioner and Respondent, v. STATE of Montana, Defendant and Appellant.
• Court: Montana Supreme Court

Page 473

813 P.2d 473

249 Mont. 77

Jerry GRINDE, Petitioner and Respondent, v. STATE of Montana, Defendant and Appellant.

No. 90-463.

Supreme Court of Montana.

Submitted on Briefs May 10, 1991.

Decided June 18, 1991.

Marc Racicot, Atty. Gen., State of Mont., James L. Yellowtail, Peter Funk, Asst. Attys. Gen., Helena, Rae V. Kalbfleisch, Toole County Atty., Merle Raph, Deputy Toole County Atty., Shelby, for defendant and appellant.

Chas. L. Jacobson, Conrad, for petitioner and respondent.

McDONOUGH, Justice.

The State of Montana appeals from an order of the Ninth Judicial District, Toole County, that required the return of Jerry Grinde's driver's license. The District Court held that the seizure of Grinde's license pursuant to Sec. 61-8-402, MCA, was illegal because Toole County police officers lacked justification to stop his automobile. We affirm.

The sole issue on appeal is:

Whether the District Court erred when it ordered the return of Jerry Grinde's driver's license.

On March 17, 1990, at approximately 11:30 p.m., Jerry Grinde (Grinde) was driving a silver Corvette eastward on Main Street in Shelby, Montana. Toole County Sheriff's deputies Ken DeCock and Ron Kinyon were approaching from the opposite direction at the time. As the patrol car approached, Grinde made a right hand turn onto Maple Avenue. After Grinde's car was no longer in sight, the deputies heard "a squealing of tires and the sound of an engine revving up." Because they observed no other vehicles in the immediate vicinity, the deputies attributed the noise to Grinde's Corvette.

The police officers followed Grinde onto Maple Street and observed the vehicle as it turned into an alley. Based upon their belief that Grinde "may have been carelessly or recklessly driving up Maple Avenue" the police activated their lights. Grinde turned into a parking lot and got out of his automobile. According to Deputy DeCock, Grinde appeared unsteady as he left his car and approached the police vehicle. The deputies required Grinde to perform several field sobriety maneuvers. Apparently Grinde failed each test.

Grinde was placed under arrest and taken to the Toole County Sheriff's Department. He was informed of the provisions of the implied consent statute, Sec. 61-8-402, MCA. He refused to take a breath test until he was allowed to speak with an attorney. Deputy DeCock informed him that he did not have a right to speak with an attorney before being required to take a breath test. Grinde continued in his refusal and the officer treated his response as a refusal to take the breath test. Officer DeCock then seized his driver's license under the authority of Sec. 61-8-402(3), MCA.

On April 16, 1990, Grinde filed a petition in District Court seeking reinstatement of his driving privileges pursuant to Sec. 61-8-403, MCA. A hearing was held and the District Court found that the arresting officers lacked justification for stopping Grinde's vehicle. It then ordered the return of Grinde's driver's license. This appeal followed.

Section 61-8-402, MCA, provides that any person who operates a motor vehicle upon ways of this state open to the public shall be deemed to have given consent ... to a chemical test for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving ... a vehicle under the influence of alcohol.

A person can refuse to submit to this test. However, upon refusal the arresting officer is directed to seize his driver's license. The Department of Justice is then required to suspend that person's driving privileges for a period of at least 90 days. See Sec. 61-8-402(3) and (5), MCA. Upon seizure of his license, a person can obtain judicial review of the administrative suspension of his driving privileges. Review of this action is, however, limited by statute. Section 61-8-403, MCA, provides that judicial review of administrative actions taken pursuant to the implied consent statute is limited to the following issues:

(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.

Gebhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261.

The State maintains that the District Court exceeded the mandate of this statute when it considered the validity of the initial stop of Grinde's car. According to its argument, the court must limit itself to the three issues recited above. Because the statute contains no reference to the validity or reasonableness of the initial stop, its decision to return Grinde's driver's license was in error and must be reversed.

We disagree. In Armstrong v. State (1990), 47 St.Rep. 2057, 800 P.2d 172, we held that in order to meet the requirements of Sec. 61-8-403, MCA, the State must show that the police officer had reasonable grounds to make an investigatory stop of the defendant's vehicle. Unfortunately, we did not adequately set forth the rationale for this conclusion. This omission on our part has caused some confusion on the part of the parties to this action.

As stated above, a court reviewing the suspension of a...