Widdicombe v. State ex rel. Lafond

• Decision Date: 02 March 2004
• Docket Number: No. 03-569.,03-569.
• Citation: 2004 MT 49,85 P.3d 1271,320 Mont. 133
• Parties: Ronald WIDDICOMBE, Petitioner and Appellant, v. STATE of Montana, ex rel., Mary LAFOND, Chief, Driver Improvement Bureau, Respondent and Respondent.
• Court: Montana Supreme Court

85 P.3d 1271

2004 MT 49

320 Mont. 133

Ronald WIDDICOMBE, Petitioner and Appellant, v. STATE of Montana, ex rel., Mary LAFOND, Chief, Driver Improvement Bureau, Respondent and Respondent.

No. 03-569.

Supreme Court of Montana.

Submitted on Briefs February 10, 2004.

Decided March 2, 2004.

For Appellant: Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Montana. For Respondent: Richard Malagisi, County Attorney, Big Timber, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 On the night of February 21, 2003, Ronald Widdicombe was stopped by the Montana Highway Patrol for suspicion of driving under the influence of alcohol. During the stop, Widdicombe participated in field tests, but refused to provide a breath sample on a preliminary breath test (PBT). He was arrested and again refused a breath test at the Sheriff's Department. His driver's license and driving privileges were suspended, and he petitioned the District Court to reinstate the license. Widdicombe claimed he had been illegally arrested, and the suspension of his license was thus invalid. After a hearing, the District Court refused to reinstate his driver's license, and Widdicombe now appeals. We affirm the decision of the District Court.

¶ 2 We restate Widdicombe's issues on appeal as follows:

¶ 3 1. Was there a particularized suspicion to stop Widdicombe's vehicle? and

¶ 4 2. Was Widdicombe lawfully arrested?

FACTUAL and PROCEDURAL BACKGROUND

¶ 5 On the evening in question, Officer Moody was training Officer Waddell. As they were driving through the town of Big Timber, Montana, a red Toyota pickup driven by Widdicombe pulled into the lane ahead of them and crossed the center line. The officers activated the in-car video camera and followed Widdicombe. Officer Moody later testified that Widdicombe crossed the center line three more times and swerved once within his lane. Having observed Widdicombe's driving, the officers stopped him. Moody remained in the patrol car while Waddell approached the pickup. Waddell was able to smell the odor of alcohol emanating from Widdicombe. Waddell then had Widdicombe walk to the patrol car, which Widdicombe did in a slow, plodding, and deliberate manner. Inside the patrol car, Waddell administered the Horizontal Gaze Nystagmus (HGN) test, on which Widdicombe achieved the maximum of six points, indicating he was intoxicated. Waddell then asked Widdicombe to take the PBT, which he refused. Widdicombe did participate in several more field sobriety tests, after which the officers took him into custody to administer further tests at the station. There, Widdicombe was asked to provide a breath sample on the Intoxilyzer 5000, which he refused to do. It was this refusal that formed the basis of his license revocation.

¶ 6 Widdicombe argued that merely touching the center line was not a sufficient traffic violation to give rise to a reasonable suspicion to stop a vehicle. The District Court found that Officers Moody and Waddell had reasonable grounds to stop Widdicombe's vehicle and therefore denied Widdicombe's petition. Widdicombe now appeals.

DISCUSSION

¶ 7 In our review of a district court's denial of a petition for reinstatement of a driver's license, we review the lower court's findings of fact to determine whether they are clearly erroneous and we review the conclusions of law to determine whether they are correct. In re McKenzie, 2001 MT 25, ¶ 5, 304 Mont. 153, ¶ 5, 19 P.3d 221, ¶ 5. A suspension of a license is presumed to be correct, and the petitioner bears the burden of proving that the state's action was improper. Kleinsasser v. State, 2002 MT 36, ¶ 10, 308 Mont. 325, ¶ 10, 42 P.3d 801, ¶ 10. In such a proceeding, the issues are limited to 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;

(ii) the person is under 21 years of age and was placed under arrest for a violation of 61-8-410;

(iii) the officer had probable cause to believe that the person was driving or in actual physical control of a vehicle in violation of 61-8-401 and the person was involved in a motor vehicle accident or collision resulting in property damage, bodily injury, or death; and

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

Section 61-8-403(4)(a), MCA.

¶ 8 We have previously stated that there are three issues to be determined by a district court in a petition for review of a seizure of a driver's license: (1) whether the arresting officer possessed a particularized suspicion that the individual in question had been driving or was in actual physical control of a vehicle upon ways of this state while under the influence of alcohol or drugs; (2) whether the petitioner was lawfully under arrest including the existence of probable cause; and (3) whether the petitioner in fact declined to submit to a breath test. Bush v. Montana Dept. of Justice, 1998 MT 270, ¶¶ 11-13, 291 Mont. 359, ¶¶ 11-13, 968 P.2d 716, ¶¶ 11-13. Widdicombe is only contesting the first two determinations.

Was there a particularized suspicion to stop Widdicombe's vehicle?

¶ 9 The "reasonable grounds" requirement of § 61-8-403(4)(a)(i), MCA, is equivalent to "particularized suspicion." Bush, ¶ 10. This same standard is used to justify an investigative stop.

In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

Section 46-5-401(1), MCA.

¶ 10 Widdicombe claims that merely driving on and crossing slightly over the yellow center line is not a driving offense. Moreover, Widdicombe argues the present situation is factually and legally controlled by our precedent in State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d 363, where we determined that driving close to the fog line and crossing the fog line did not give rise to a particularized suspicion. The situation here is similar to Lafferty in that both involve the highway patrol stopping a pickup truck for a suspected DUI. Lafferty involved a criminal charge of DUI, in which the prosecution failed to prove facts supporting a particularized suspicion to stop the defendant's pickup truck. Lafferty, ¶ 18. Widdicombe's case, however, is a civil action to reinstate his license. In such a case, it is the petitioner who bears the burden of proof.

¶ 11 In Lafferty, a dispatcher relayed to a highway patrolman the description of a supposed drunk driver from an anonymous caller. Lafferty, ¶ 3. The patrolman encountered a similar vehicle driving on the interstate highway in the far right lane. Lafferty, ¶ 4. After observing the vehicle cross the fog line twice and drive on it once, the patrolman stopped the vehicle. Lafferty, ¶ 4. At issue was whether Lafferty's driving was a violation of § 61-8-328, MCA (1995), which provided that when a "roadway has been divided into two or more clearly marked lanes for traffic ... [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." We concluded that Lafferty's driving did not violate the statute in question because "the statute relates to moving from a marked traffic lane to another marked traffic lane." Lafferty, ¶ 14. We noted that Lafferty did not move between the two eastbound marked traffic lanes, but "merely crossed onto and barely over the fog line on the far right side of the right traffic lane in which she was traveling." Lafferty, ¶ 14. Similarly, particularized suspicion was lacking when an eastbound driver "drifted" a foot into the other eastbound lane and then drifted across to touch the fog line on the other side of his lane. Morris v. State, 2001 MT 13, ¶ 10, 304 Mont. 114, ¶ 10, 18 P.3d 1003, ¶ 10.

¶ 12 Widdicombe claims that we are similarly bound to determine that merely driving on the yellow center line is not a...