No. 89-355 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

PATRICK JAMES BOLAND, 

Petitioner and Respondent, 

-vsSTATE OF MONTANA, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Peter Funk, Asst. Atty. General, Helena 

Patrick Paul, County Attorney, Great Falls, Montana 

Stephen Hagerman, Deputy, Great Falls 

For Respondent: 

Patrick F. Flaherty; Flaherty & Winner, Great l,'dils, 

Montana 

Filed: 

Submitted on Briefs: Feb. 2, 1990 

ided : 
Justice John Conway Harrison delivered the Opinion of the Court. 

The State of Montana appeals from Eighth Judicial District 

Judge John McCawel s judgment which concluded that the officer who 

arrested Patrick Boland for driving under the influence of alcohol 

did not have reasonable cause to arrest Boland at the time the 

officer stopped him. The District Court held that Boland was 

therefore entitled to immediate restoration of his driver's license 

and driving privileges. We reverse the lower court's judgment. 

Only one issue is presented: Was the District Court's ruling 

that the arresting officer did not have reasonable cause to stop 

Boland and arrest him for driving under the influence of alcohol 

clearly erroneous given the evidence before the court? 

At approximately one in the morning of January 26, 1989, 

police officer Donald Scheele observed a car weaving down Central 

Avenue in downtown Great Falls, Montana. From a distance of about 

three car lengths, Officer Scheele followed the vehicle for one and 

one-half to two blocks. Because he was transporting a prisoner, 

Officer Scheele radioed for assistance and Officer Steve Lohse, who 

was patrolling the area, agreed to continue the surveillance. 

Officer Scheele relayed the vehicle's description and license plate 

number to Officer Lohse. 

Officer Lohse then followed the vehicle for several blocks 

until it pulled into a restaurant parking lot. While Officer Lohse 

did not see any indication that the vehicle was being driven 
erratically, he did observe that the driver stumbled as he got out 

of the car and had difficulty maintaining his balance. When 

Officer Lohse asked to see the driver's license he immediately 

noticed the odor of alcohol on the breath of the driver, Patrick 

Boland. 

Officer Lohse stated that Boland appeared to have been 

drinking and Boland replied that he had just come from The City 

Bar. At that point Officer Lohse administered three field sobriety 

tests. Boland failed two tests and his speech was slurred during 

the third. At that point Officer Lohse advised Boland he was under 

arrest for driving under the influence of alcohol. Boland refused 

submit to a chemical test. 

Following his arrest, Boland's driver's license was suspended 

in accordance with 5 61-8-402, MCA, which provides: 

(1) Any person who operates a vehicle upon 

ways of this state open to the public shall be 

deemed to have given consent, subject to the 

provisions of 61-8-401, to a chemical test of 

his blood, breath, or urine for the purpose of 

determining the alcoholic content of his blood 

if arrested by a peace officer for driving or 

in actual physical control of a vehicle while 

under the influence of alcohol. The test 

shall be administered at the direction of a 

peace officer having reasonable grounds to 

believe the person to have been driving or in 

actual physical control of a vehicle upon ways 

of this state open to the public while under 

the influence of alcohol. The arresting 

officer may designate which one of the 

aforesaid tests shall be administered. 

(3) If a resident driver under arrest refuses 

upon the request of a peace officer to submit 
to a chemical test designated by the arresting 

officer as provided in subsection (1) of this 

section, none shall be given, but the officer 

shall, on behalf of the department, 

immediately seize his driver's license. The 

peace officer shall forward the license to the 

department, along with a sworn report that he 

had reasonable grounds to believe the arrested 

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 and that the person had 

refused to submit to the test upon the request 

of the peace officer. Upon receipt of the 

report, the department shall suspend the 

license for the period provided in subsection 

(5) 

(4) Upon seizure of a resident driver's 

license, the peace officer shall issue, on 

behalf of the department, a temporary driving 

permit, which is valid for 72 hours after the 

time of issuance. 

(5) The following suspension and revocation 

periods are applicable upon refusal to submit 

to a chemical test: 

(a) upon a first refusal, a suspension of 90 

days with no provision for a restricted 

probationary license; 

(b) upon a second or subsequent refusal within 

5 years of a previous refusal, as determined 

from the records of the department, a 

revocation of 1 year with no provision for a 

restricted probationary license. 

(7) All such suspensions are subject to review 

as hereinafter provided. 

Boland then filed a petition for a hearing to determine 

''whether a peace officer had reasonable grounds to believe the 

person had been driving or was in actual physical control of a 

vehicle upon the ways of this state open to the public, while under 
the influence of alcohol, whether the person was placed under 

arrest, and whether such person refused to submit to the testu in 

accordance with 5 61-8-403, MCA. The hearing was held before Judge 

McCarvel on May 9, 1989. At the conclusion of the hearing, the 

District Court found that Officer Lohse did not Itof his own 

knowledgeM have reasonable cause to stop Boland and arrest him for 

driving under the influence of alcohol. The District Court ordered 

Bolandts driver's license be restored to him. It is from this 

order the State appeals. 

A hearing held under 5 61-8-403, MCA, is "a civil proceeding 

separate and distinct from a criminal trial on the charge of 

operating a motor vehicle while under the influence of alcoh01.~~ 

Gebhardt v. State (Mont. 1989), 775 P.2d 1261, 1265, 46 St.Rep. 

1114, 1117 (citing In re Blake (1986), 220 Mont. 27, 31, 712 P.2d 

1338, 1341). The purpose of such a hearing is to review whether 

a petitioner's license was properly revoked following the 

petitioner's refusal to submit to a chemical test, and the judge 

determines only: 

(1) whether the arresting officer had 

reasonable srounds 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. (Emphasis in original.) 

Gebhardt, at 1265, 46 St.Rep. at 1117-18. 
The only issue at the May 9 hearing was whether the arresting 

officer had reasonable grounds to believe that the petitioner was 

under the influence of alcohol. Petitioner Boland did not contest 

that he was driving the vehicle on a way of this state open to the 

public, nor did he contest that he had been placed under arrest 

and refused to consent to a chemical test. 

Regarding what constitutes "reasonable groundsn we have 

recently clarified the standard: 

[Rleasonable grounds exist if the facts and 

circumstances within the personal knowledge of 

the arresting officer would be sufficient to 

warrant a reasonable person to believe that 

the motorist is under the influence of 

alcohol. 

Gebhardt, at 1266, 46 St.Rep. at 1119. 

The District Court seems to base its ruling that the arresting 

officer did not have reasonable grounds to arrest Boland on two 

points. First, the district judge stated Officer Lohse did not 

have personal knowledge that Boland was driving under the 

influence, but relied on the information radioed to him by Officer 

Scheele. This radio-relayed information, the ~istrict Court felt, 

could not be relied upon by officer Lohse as facts and 

circumstances within his personal knowledge sufficient to arrest 

Boland for DUI. Second, the ~istrict Court in its findings of 

fact, indicatedthat without the radio-relayed information, nothing 

that Officer Lohse observed during his surveillance of the Boland 

vehicle would constitute reasonable grounds to arrest Boland for 

DUI. We find the District Court's reasoning in this matter to be 
flawed. 

"Reasonable groundsI1 are synonymous with I1probable causet1 in 

Montana. State v. Davis (1980), 190 Mont. 285, 289, 620 P.2d 1209, 

1212. 

This Court has often held an arresting officer may rely on 

information conveyed by a reliable third person or another officer 

in determining probable cause to arrest. 

[Plrobable cause is to be evaluated by the 

courts on the basis of the collective 

information of the police rather than that of 

only the officer who performs the act of 

arresting. 

Davis, at 290, 620 P.2d at 1212 (quoting State v. Shaw (0r.App. 

1979), 473 P.2d 159, 161). See also, State ex rel. Kuhr v. Dist. 

Ct. (1928), 82 Mont. 515, 268 P. 501; State v. Ellinger (1986), 223 

Mont. 349, 725 P.2d 1201; State v. Lee (1988), 232 Mont. 105, 754 

In addition to the radio-relayed information provided by' 

Officer Scheele, Officer Lohse also observed that Boland stumbled 

and had trouble maintaining his balance in the restaurant parking 

lot, that Boland had the odor of alcohol on his breath and admitted 

having just come from a bar, and that Boland failed two of the 

three sobriety tests. 

We find that the arresting officer did have reasonable grounds 

to believe that Boland was driving under the influence of alcohol 

at the time of his arrest. 
We reverse the District Court and remand for entry of an order 

consistent with this opinion. 

We concur: / 

Chief Justice 

Justices 
Justice John C. Sheehy, dissenting: 

I dissent, and would affirm the District Court. 

We are involved here with a civil proceeding. The findings 

of the District Court should be sustained by us unless they are 

clearly erroneous. Rule 52, M.R.Civ.P. 

The District Court made the following findings of fact: 

3. Officer Lohse followed Patrick Boland from Second 

Street and Central Avenue to the Hardee1s restaurant on 

~irst Avenue North and Park Drive. During the time of 

surveillance by Officer Lohse, Patrick Boland operated 

his vehicle in a proper and legal manner. 

4. The unrebutted testimony is that Patrick Bolandls 

vehicle was legal and that Patrick Bolandls manner of 

driving was at all times legal and there is no reasonable 

cause for arresting Patrick Boland. 

The foregoing findings by the District Court Judge are 

supported by the evidence in the cause. The following colloquy 

occurred during the trial : 

THE COURT: Before that, though, you had seen nothing 

yourself that warranted you arresting him? 

THE WITNESS: Concerning his driving? 

THE COURT: Yes. 

THE WITNESS: That's correct. Other than just Officer 

Scheele advising me of the fact that he had observed 

this, and asked me to--I pulled in behind the vehicle, 

and by the time I got behind it we are into the 200 

block, and just like he was turning on to Park Drive, and 

all of a sudden was into the Hardee1s lot-- 

THE COURT: How many blocks did you follow him: 

THE WITNESS: Approximately--it would be three blocks 

approximately. 

THE COURT: And you didn't observe anything in those 

three blocks that could cause you to believe-- 
THE WITNESS: That's correct, I could not say I observed 

anything with the vehicle. 

The pivotal question here is whether the arresting officer had 

any reason to make a stop and interrogate the defendant. He had 

no personal knowledge of any violation of the highway laws. The 

,& 

court gave its reasons for h&s decision, and they are proper, in 

the following: 

THE COURT: He saw him in physical control of the 

vehicle, and he was driving exactly like he was supposed 

to do. That's why we have laws, so we don't have 

officers arresting people when they are doing nothing. 

That's why we have the right to drive in this country. 

It is a privilege. And that's why we don't want officers 

stopping people in their cars when they have no reason 

to stop them. 

Now this officer observed this man driving, he saw 

nothing wrong with his driving. How would you like it 

if they stopped you? You might say you are sober and 

everything, it is just the inconvenience of being 

stopped. That's why we don't want people being stopped. 

This is a free country. We have our liberties. We don't 

want police officers stopping somebody when he doesn't 

have any cause to stop them. 

He observed this man driving, Officer Lohse said he was 

weaving, it was a snowy night and so on, and he had been 

weaving--he may have been tired or something. But when 

this officer got on his tail and followed him for two and 

three blocks there, he wasn't doing anything wrong . . 

The information radioed by Officer Scheele to Officer Lohse 

did not jibe with the actual observations made by the arresting 

officer. Officer Lohse did not have reasonable cause to stop 

Patrick Boland. As the District Court noted, the observation the 

officer made after the stop can not excuse the improper stop. Yet, 

it is the observations made by the officer after the stop upon 
which this Court relies to reverse the District Court. I would 

affirm. q=Q#VW4&- Justice