State v. Krause

• Citation: 2002 MT 63,44 P.3d 493,309 Mont. 174
• Decision Date: 02 April 2002
• Docket Number: No. 00-359.,00-359.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kade George KRAUSE, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

44 P.3d 493

2002 MT 63

309 Mont. 174

STATE of Montana, Plaintiff and Respondent, v. Kade George KRAUSE, Defendant and Appellant.

No. 00-359.

Supreme Court of Montana.

Submitted on Briefs February 8, 2001.

Decided April 2, 2002.

Wendy Holton, Helena, Montana, For Appellant.

Hon. Joseph P. Mazurek, Montana Attorney General, Ilka Becker, Assistant Montana Attorney General, Helena, Montana; Thomas R. Scott, Beaverhead County Attorney, Dillon, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Kade George Krause appeals an order of the District Court for the Fifth Judicial District, Beaverhead County, denying Krause's petition to reinstate his driver's license. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

¶ 2 Krause raises three issues on appeal which we have restated for clarity as follows:

¶ 3 1. Whether the District Court erred in its determination that a private driveway is a way of this State open to the public.

¶ 4 2. Whether the District Court erred in denying Krause's motion to exclude statements he made in response to questioning by Officer Heinecke before Officer Heinecke identified himself as a law enforcement officer.

¶ 5 3. Whether the District Court erred in denying Krause's motion to exclude the results of Krause's blood test.

Factual and Procedural Background

¶ 6 On October 27, 1999, at about 11:40 p.m., Mark and Dee Boka's daughter woke them to tell them that someone was parked in their driveway and that the person had been there for ten or fifteen minutes. When the Bokas got up to investigate, they saw a vehicle in their driveway with its headlights shining on their house. Mark Boka testified that they did not know whose vehicle it was and that they had not given anyone permission to park there.

¶ 7 Dee Boka contacted the Beaverhead County Sheriff's Office and reported a suspicious person on their property. She reported that a vehicle was parked in their driveway with its engine running and its headlights shining on their house.

¶ 8 Officer Jake Heinecke was dispatched to the Boka residence to investigate. When Officer Heinecke arrived at the residence shortly before midnight, he noticed a newer model black GMC truck parked in the driveway which was just off of Highway 278. Officer Heinecke got out of his vehicle and approached the driver's side door. As he did so, he noticed that a man, who appeared to be asleep, was lying on the seat of the truck with his feet resting on the floor under the steering wheel. Two dogs were also inside the cab of the truck. The truck was running and the driver's side window was rolled down approximately one quarter of the way.

¶ 9 Officer Heinecke knocked on the driver's side window in an attempt to wake the man. The man did not respond to the first knock but, after the second knock, he sat up and looked around. Officer Heinecke recognized the man as Kade George Krause. Krause rolled down the window at Officer Heinecke's request and, when he did so, Officer Heinecke detected the odor of alcohol on Krause's breath and he observed that Krause's eyes were bloodshot and glassy. Officer Heinecke asked Krause for his driver's license, registration and proof of insurance. Krause produced those items, but Officer Heinecke noticed that Krause had some difficulty getting his driver's license out of his wallet.

¶ 10 Officer Heinecke began to question Krause about where he'd been, where he was going and whether he'd had anything to drink. Krause responded that he had had "a few beers" and that he'd been at "the old Watering Hole" in Dillon. As Krause spoke, Officer Heinecke observed that his speech was slow and that he slurred his words.

¶ 11 Officer Heinecke asked Krause to step out of the truck and Krause complied, but, as he did so Krause's two dogs also jumped out. Krause attempted to whistle for the dogs to return them to the truck, but finding himself unable to whistle, Krause resorted to calling the dogs. Thereafter, Officer Heinecke had Krause perform the Horizontal Gaze Nystagmus (HGN) test. The test results were consistent with Officer Heinecke's belief that Krause was under the influence of alcohol. Hence, Officer Heinecke took Krause into custody and advised him that he was under arrest for driving under the influence (DUI).

¶ 12 Before transporting Krause to the Sheriff's office, Officer Heinecke asked the Bokas for permission to leave Krause's truck and the dogs on their property and they consented. Mark Boka drove the truck to the back of his property with Krause in the truck alongside him so that Mark would be safe from the dogs. Mark later testified that it appeared to him that Krause was intoxicated.

¶ 13 At the station, Officer Heinecke had Krause perform another HGN test and the walk-and-turn test, both of which indicated that Krause was under the influence. Krause declined to submit to a breathalyser test, thus his driver's license was seized and suspended pursuant to § 61-8-402(4), MCA. After the booking process was completed, Officer Heinecke allowed Krause to call his family.

¶ 14 A short while after Krause's father came to pick him up, Paul Craft, Dillon Assistant Police Chief, was making a routine patrol of Barrett Memorial Hospital when he saw Krause and his father enter the building. Aware that Krause had been charged with DUI earlier that night, Craft reported his observation to Officer Heinecke. At the hospital, Krause requested a blood alcohol test. The State subsequently obtained the results of the blood test by investigative subpoena.

¶ 15 On November 29, 1999, Krause petitioned the District Court for reinstatement of his driver's license. A hearing on his petition was held on February 11, 2000. At the hearing, statements made by Krause prior to his arrest were admitted over his objection. Additionally, the results of the blood alcohol test which Krause had taken after his release from jail were also admitted over his objection.

¶ 16 On March 10, 2000, the District Court issued its Findings of Fact, Conclusions of Law and Order denying Krause's petition for reinstatement. Krause appeals from the District Court's order.

Standard of Review

¶ 17 We review a district court's findings of fact on the denial of a petition for reinstatement of a driver's license to determine whether those findings are clearly erroneous. Kleinsasser v. State, 2002 MT 36, ¶ 9, 308 Mont. 325, ¶ 9, 42 P.3d 801, ¶ 9 (citing Anderson v. State, Dept. of Justice (1996), 275 Mont. 259, 262, 912 P.2d 212, 214; Bauer v. State (1996), 275 Mont. 119, 122, 910 P.2d 886, 888). We then review the court's conclusions of law to determine whether they are correct. Kleinsasser, ¶ 9.

¶ 18 "Because a presumption of correctness attaches to the State's act of suspending or revoking a driver's license, the driver bears the burden of proving that the suspension or revocation of a driver's license was improper." Kleinsasser, ¶ 10 (quoting Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 14, 289 Mont. 1, ¶ 14, 961 P.2d 75, ¶ 14).

Issue 1.

¶ 19 Whether the District Court erred in its determination that a private driveway is a way of this State open to the public.

¶ 20 In its March 10, 2000 order denying Krause's petition for reinstatement of his driver's license, the District Court determined that the "lane or access road providing access from Highway 278 into the residence of Mark and Dee Boka is a `way [of this State] open to the public' as contemplated and defined under applicable Montana law." Thus, the court concluded that under Montana's implied consent statute (§ 61-8-402, MCA) Officer Heinecke "acted properly and appropriately" in seizing Krause's driver's license when Krause refused to submit to a breathalyser test.

¶ 21 Krause argues that the District Court erred in concluding that the Bokas' driveway is a way of this State open to the public. Hence, he maintains that the revocation of his license pursuant to the implied consent statute cannot stand because he was not on a way of this State open to the public at the time of his arrest.

¶ 22 However, despite Krause's contentions to the contrary, the implied consent statute does not require that a defendant be found and arrested upon a way of this State open to the public. It only requires that an officer have reasonable grounds to believe that a defendant had been driving or had been in actual physical control of a vehicle upon ways of this State open to the public. More specifically, the implied consent statute provides in pertinent part as follows:

Blood or breath tests for alcohol, drugs, or both. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person's blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body.

(2) (a) The test or tests must be administered at the direction of a peace officer when:

(i) the officer has reasonable grounds to believe that the person has been driving or has been 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 has been placed under arrest for a violation of 61-8-401; ...

Section 61-8-402, MCA (emphasis added).

¶ 23 In addition, even though the District Court concluded that the Bokas' driveway is a way of this State open to the public, that conclusion is irrelevant to our determination here as there is ample evidence to support the conclusion that Krause had been driving upon a way of this State open to the public other than the Bokas' driveway. We have repeatedly stated that we will uphold a correct decision of a district court regardless of the lower court's reasoning in reaching its decision. Hulse, ¶ 15 (citing Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d...