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.MarcRacicot,AttorneyGeneral,Helena,Montana Peter Funk, Asst. Atty. General, Helena Patrick Paul, CountyAttorney,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 JohnMcCawel s judgmentwhich concluded thattheofficerwho 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 thereforeentitledto immediate restorationofhis 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 threecar lengths,Officer Scheele followedthevehicle foroneand one-half to two blocks. Because he was transporting a prisoner, Officer Scheeleradioed for assistanceand OfficerSteve Lohse,who was patrolling the area, agreed to continue the surveillance. OfficerScheelerelayed thevehicle'sdescriptionand licenseplate number to Officer Lohse. Officer Lohse then followed the vehicle for several blocks until itpulled into a restaurant parking lot. While Officer Lohse did not see any indication that the vehicle was being drivenerratically,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 thatpoint Officer Lohse administered three field sobriety tests. Boland failed two tests and his speech was slurred during the third. At thatpoint Officer Lohse advised Boland he was under arrest for driving under the influence of alcohol. Boland refused submit to a chemical test. Followinghis 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 thepublic shallbe deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, orurine for thepurpose of determiningthealcoholic content ofhisblood 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 avehicle uponways 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 submitto a chemicaltest 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 tobelieve thearrested person had been driving or was in actual physical control of a vehicle upon ways of this stateopen to thepublic,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 restrictedprobationary 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 theways of this state open to thepublic, while underthe influence of alcohol, whether the person was placed under arrest, and whether such person refused to submit to the testu in accordancewith 

### 5 61-8-403,MCA. Thehearingwasheld 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 knowledgeMhave reasonable cause to stop Boland and arrest him for driving under the influence of alcohol. TheDistrict Court ordered Bolandtsdriver'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. (Emphasisin original.) Gebhardt, at 1265, 46 St.Rep. at 1117-18.The only issue at theMay 9hearingwaswhether 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 thevehicle 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 thepersonal knowledgeof 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. TheDistrict Court seemstobase 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 tohim 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 ~istrictCourt in its findings of fact, indicatedthatwithouttheradio-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 beflawed. "Reasonable groundsI1are synonymous with I1probablecauset1 in Montana. Statev. Davis (1980), 190Mont. 285, 289, 620P.2d 1209, 1212.This Court has often held an arresting officer may rely on information conveyedby 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), 82Mont. 515, 268 P. 501; Statev. Ellinger (1986),223 Mont. 349, 725 P.2d 1201; Statev. 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 troublemaintaining his balance in the restaurant parking lot, that Boland had the odor of alcohol onhisbreath and admitted having just come from a bar, and that Boland failed two of the three sobriety tests. We findthat thearresting officerdidhave reasonable grounds to believe that Boland was driving under the influence of alcohol at the time of his arrest.WereversetheDistrictCourt and remand forentryof an order consistent withthisopinion.

We concur: /

Chief Justice

JusticesJustice John C. Sheehy, dissenting:



### Idissent, 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 Hardee1srestaurant 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 Bolandlsmanner of drivingwas at all times legaland there isno 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 likehewas turningon to Park Drive, and all of a sudden was into the Hardee1slot-- THE COURT: How many blocks did you followhim: 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--THEWITNESS: That's correct, I could not say I observed anything with thevehicle. Thepivotal questionhere iswhether thearresting officerhad 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 hewas driving exactly likehewas 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 isa privilege. And that's whywe don'twant 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'swhy we don'twant people being stopped. This isa free country. Wehave our liberties. We don't want police officers stopping somebody when he doesn't have any cause to stop them. He observed thisman driving, Officer Lohse said he was weaving, itwas a snowy night and so on, and he had been weaving--he may have been tired or something. But when thisofficergot on his tailand followed him fortwoand 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 cannot excuse the improperstop. Yet, it is the observations made by the officer after the stop uponwhich this Court relies to reverse the District Court. I would affirm. 

# q=Q#VW4&- Justice