In re License Suspension of Cybulski

• Decision Date: 21 April 2008
• Docket Number: No. DA 07-0173.,DA 07-0173.
• Citation: 2008 MT 128,183 P.3d 39,343 Mont. 56
• Parties: In re the LICENSE SUSPENSION OF Beverly Sampson CYBULSKI.
• Court: Montana Supreme Court

183 P.3d 39

343 Mont. 56

2008 MT 128

In re the LICENSE SUSPENSION OF Beverly Sampson CYBULSKI.

No. DA 07-0173.

Supreme Court of Montana.

Submitted on Briefs February 20, 2008.

Decided April 21, 2008.

For Appellant: Honorable Mike McGrath, Attorney General, Brenda G. Nordlund; Assistant Attorney General, Helena, Montana, Wyatt A. Glade; County Attorney, Miles City, Montana.

For Appellee: A. Lance Tonn; Lucas & Tonn, P.C., Miles City, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 The State appeals the District Court's order reinstating Beverly Cybulski's driver's license. We reverse.

¶ 2 We restate the issue as follows:

¶ 3 Did the District Court err by granting Cybulski's petition to reinstate her driving privileges?

BACKGROUND

¶ 4 At about 11:25 p.m. on August 21, 2006, Dispatcher Lyne Anderson of Miles City received a 911 call from a driver on I-94 east who reported that he had just passed a red Camaro or Firebird near mile marker 188 going the wrong way on the highway. This citizen tip was confirmed a short time later by Under Sherriff Roos, who passed the red Camaro near mile marker 168. Roos contacted Dispatcher Anderson to report that the vehicle was traveling westbound in the eastbound lane of I-94, in excess of 100 miles per hour. Deputy Hayter was present at the dispatch center that evening, and overheard the calls come in. When it became clear that the Camaro was approaching his jurisdiction, he left the dispatch center to respond to the call.

¶ 5 Deputy Hayter parked his patrol car on the cross-over near exit 146 to intercept the Camaro. He requested the assistance of other peace officers in stopping the Camaro. In the meantime, 911 calls from drivers on I-94 continued to pour in.

¶ 6 Close to 11:53 p.m., Deputy Hayter got a visual on the red Camaro traveling west in the eastbound lane of I-94. According to Hayter's radar, the car was traveling at 75 miles per hour. He activated his lights and sirens, and began pursuit of the vehicle. The Camaro failed to respond. Several miles later, with Deputy Hayter still in pursuit, the Camaro passed Sergeant Davis. Davis was staked out near exit 141, waiting to intercept the errant Camaro. Davis activated his emergency lights and sirens, and joined the pursuit.

¶ 7 After driving on the wrong side of the divided highway for nearly fifty miles, passing multiple vehicles traveling in the opposite direction, and being pursued for more than six miles by police officers with emergency lights and sirens activated, the red Camaro finally slowed to a stop near mile marker 139. Sergeant Davis reached the car first, and gave some commands to the driver, a woman later identified as Beverly Cybulski ("Cybulski"). Cybulski did not respond to Davis's instructions, so he forcibly removed her from the vehicle, and placed her facedown on the ground. Deputy Hayter assisted Sergeant Davis in restraining Cybulski. Both officers noticed a strong odor of alcohol on her person, though the record contains conflicting evidence as to whether they noticed this before or after handcuffing her.

¶ 8 After Sergeant Davis read Cybulski her Miranda rights, Cybulski admitted that she had been drinking. Both officers noticed that Cybulski seemed disoriented and confused. Davis handed custody of Cybulski over to Deputy Hayter, who took her to the Custer County Detention Center for further processing and DUI testing.

¶ 9 At the detention center, Deputy Hayter administered several sobriety tests to Cybulski. Cybulski indicated that due to a prior injury or surgery, she could not perform any tests which involved walking or standing on one leg. Deputy Hayter asked Cybulski to recite the alphabet. Midway through the alphabet, she paused, and then asked if she could continue. Deputy Hayter indicated that she could, and she then finished the recitation. In Hayter's judgment, Cybulski failed the alphabet test.

¶ 10 Next, Hayter administered the HGN test. He was trained to administer the test; however, this was the first time he had actually given one. Deputy Hayter noticed that Cybulski's eyes were red and bloodshot, and after observing her involuntary eye movements, concluded that she failed the HGN test. He then asked her to perform a breathalyzer test, and explained the consequences of refusing under Montana's informed consent law. Cybulski refused; Deputy Hayter read her her Miranda rights again, and turned her over to the detention staff. Deputy Hayter issued three citations to Cybulski: first, for driving under the influence of alcohol in violation of § 61-8-401, MCA; second, for driving on the wrong side of a divided highway in violation of § 61-8-330, MCA; and third, for reckless driving in violation of § 61-8-301, MCA. The time of each offense was listed as five minutes after twelve.

¶ 11 Cybulski subsequently filed a petition for reinstatement of her driver's license. The State moved for summary judgment, arguing that since Cybulski subsequently pled guilty to the divided highway traffic violation, no genuine issue of material fact existed as to whether her arrest was "supported by legally obtained particularized suspicion." Cybulski cross-moved for summary judgment on the same issue. The court partially granted the State's motion, noting that at the summary judgment hearing, both parties conceded that the officers had the requisite particularized suspicion to conduct an initial traffic stop of Cybulski's vehicle. Cybulski reserved the issue of whether the officers had particularized suspicion to conduct sobriety testing for resolution at trial. The court denied Cybulski's summary judgment motion, concluding that genuine issues of material fact existed as to whether "there was particularized suspicion for the officer to believe that the driver was intoxicated."

¶ 12 The court then held a full hearing on the petition. Cybulski's counsel called Deputy Hayter as a witness, and asked him when, in his opinion, Cybulski was under arrest for driving under the influence of alcohol. Deputy Hayter testified that "[s]he was, I believe, under arrest when she was handcuffed." On cross-examination, Deputy Hayter testified that he would have placed Cybulski in custody for the traffic violations regardless of whether he had observed any indicators that she was under the influence of alcohol. He explained that he chose to conduct the sobriety testing at the detention center, after she was taken into custody, because it was too hazardous to conduct the testing on the highway.

¶ 13 Before the State finished examining Deputy Hayter, the court informed counsel that it was ready to rule. The State sought to call Sergeant Davis as a witness, and to introduce a video tape of the arrest into evidence. The court refused, and explained that it found Deputy Hayter's testimony as to the time of the arrest outcome-determinative. The court held that Deputy Hayter lacked both the particularized suspicion required to conduct sobriety tests on Cybulski, and the probable cause to arrest her for driving under the influence. As a result, the court held that the requirements of § 61-8-403(4)(a), MCA, were not satisfied, and her license should not have been suspended. The court issued an order reinstating Cybulski's driving privileges, which the State now appeals.

STANDARD OF REVIEW

¶ 14 We review a district court's order denying or granting a petition for reinstatement of a driver's license to determine whether the findings of fact are clearly erroneous, and whether its conclusions of law are correct. Bush v. Montana Dept. of Justice, 1998 MT 270, ¶ 7, 291 Mont. 359, ¶ 7, 968 P.2d 716, ¶ 7. A court's findings of fact are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been made. Bush, ¶ 7.

DISCUSSION

¶ 15 Did the District Court err by granting Cybulski's petition to reinstate her driving privileges?

¶ 16 Under § 61-8-402, MCA, any person driving on a public road in this state has given implied consent to chemical testing to determine whether they are driving under the influence of drugs and/or alcohol. If a driver refuses to submit to testing, his or her driver's license will be immediately confiscated and suspended. Section 61-8-402(4), MCA. When reviewing the suspension of a driver's license under this part, the district court is limited to considering the issues set forth in § 61-8-403(4)(a), MCA, which (in relevant part) are 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; . . . and (iv) the person refused to submit to one or more tests designated by the officer.

In interpreting this section, the district court considers three distinct issues:

(1) whether the arresting officer had reasonable grounds to believe the petitioner had been driving or was in actual physical control of a vehicle upon a way of the state open to the public while under the influence of drugs or alcohol; (2) whether the petitioner was lawfully under arrest; and (3) whether the petitioner refused to submit to a blood or breath test.

Muri v. State, 2004 MT 192, ¶ 9, 322 Mont. 219, ¶ 9, 95 P.3d 149, ¶ 9. Cybulski has stipulated that she refused to submit to the breath test proffered by Deputy Hayter. Thus, only the first two issues are in dispute; we consider each in turn.

¶ 17 Before we turn to our analysis of whether Deputy Hayter had reasonable grounds to believe that Cybulski was driving under the influence, and whether she was lawfully under arrest for violating § 61-8-401, MCA, we must address a threshold issue. At the hearing, Deputy Hayter testified that Cybulski was under...