>lo. 85-79 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE SUSPENSION OF 

THE DRIVER'S LICENSE OF WAYNE BLAKE 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kimberly Kradolfer, Asst. Atty. General, Helena 

W. G. Gilbert, 111, County Attorney, Dillon, Montana 

For Respondent: 

Max A. Hansen, Dillon, Montana 

For Amicus Curiae: 

Vincent J. Kozakiewicz, Dillon, Montana 

Filed: 

Submitted on Briefs: Oct. 3, I985 

Decided: January 231 1986 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Petitioner, Wayne Lester Blake's driver's license was 

suspended for 90 days pursuant to 5 61-8-402 (5) , MCA, for 

refusal to take a breathalyzer test. Blake appealed the 

suspension of his license to the Fifth Judicial District 

Court, pursuant to 5 61-8-403, MCA. Following an evidentiary 

hearing, the trial judge stayed the suspension, pending a 

final appeal of his decision. The State filed a motion for 

rehearing. The motion wa.s heard January 11, 1985. That same 

day, the trial judge issued an order affirming his previous 

order and, cl-arifying the underlying reasons for the stay. 

The State appeals the order denying its petition for 

At the outset, there appears to be a. disagreement between the parties as to the evidence this Court may consider 

on appeal. The notice of appeal states in pertinent 'part: 

The respondent State of Montana . . . hereby gives 

notice . . . of its intention to appeal this 

Court's order of January 11, 1985, denying the 

State's motion for reconsideration of the Court's 

underlying order of November 14, 1984. . . . 

To determine whether the trial court properly denied the 

State's petition for rehearing, we must review the record 

relied on by the trial judge in reaching his decision to stay 

the suspension of petitioner' s driver's license. Therefore, 

we will review the entire record of this case. See Rule 2, 

M.R.App.Civ.P. 

Petitioner attended a club meeting on the evening of 

October 10, 1984. Following the business meeting, most of 

the members played cards. Though he did not play, petitioner 

stayed to watch the card games and to social-ize. Petitioner 

and Eruce Parker were the last to leave the meeting. They 

drained several. water pipes and locked the building prior to 
leaving in their respective cars between 1:30 a.m. and :!:00 

a.m. Petitioner testified that he drank four to five beers 

over the course of the evening. 

Petitioner ' s route home from the meeting included trav-- 

eling north on Montana Street through downtown Dillon, 

Montana. Officer Scott Zeitner was traveling south on 

Montana Street when he observed petitioner drivinq 

erratically. Zeitner testified that petitioner swerved in 

and out of his own lane numerous times. Petitioner and 

Parker, who had traveled behind him from the location of the 

club meeting to the point where Zeitner stopped petitioner, 

testified that petitioner's driving had not been erratic and 

that he had only swerved once. Petitioner testified that he 

was forced to swerve into the other lane in order to avoid a 

pedestrian. Neither Zeitner nor Parker saw a pedestrian. 

Zeitner administered several field sobriety tests to 

petitioner, none of which were performed successfully. 

Petitioner was arrested and taken to the police station where 

he refused to submit to a breathalyzer test. His driver's 

license was subsequently suspended. 

Petitioner appealed the suspension of his driver's 

license to District Court, alleging lack of reasonable 

grounds for the police officer to believe petitioner had been 

driving a vehicle while under the influence of alcohol. 

Section 61-8-403, MCA. However, the trial judge never 

reached that issue, holding instead that (1) the initial stop 

was illegal for lack of reasonable grounds for the police 

officer to believe petitioner was operating a motor vehicle 

while under the influence of alcohol prior --- to the time petitioner's vehicle was stopped; and (2) since the initial stop 

was illegal, petitioner' s driver ' s license should not have 

been suspended. 
The State filed a motion for rehearing, contending that 

the police officer needed only a "particularized suspicion of 

some kind of wrong doing" to stop petitioner's vehicle, not 

reasonable grounds. Following a hearing, the judge issued an 

order January 11, 1985, denying the motion. In that order, 

the trial judge held that a review of the evidence confirmed 

his initial, controlling finding of fact, that the police 

officer was not justified in making the investigatory stop. 

However, instead of relying on the "reasonable grounds" test, 

the judge stated: 

The evidence completely failed to meet the test of 

"particularized suspicion," as that term is defined 

in State 5 ~o~her 38 St.Rep. 178 and State v. 

Stem~le A. 39 St.Rep. * 1085; all the officer had wasa 

"hunch" or "suspicion", and as the Supreme Court 

said in State -- v. Lahr 172 Mt. 32, "mere suspicion 

on the part of the officer is not enough." 

In its appeal of that order, the State raises three 

issues: 

1. Whether Officer Zeitner properly stopped petitioner's vehicle? 

2. Whether the District Court erred in considering 

hardship factors? 

3. Whether petitioner met his burden of proof in challenging his license suspension? 

The proper test for determining whether an officer was 

justified in making an investigatory stop is that relied on 

by the trial court in its January 11, 1985, order, "a particularized suspicion of some kind of wrongdoing." State v. 

Gopher (Mont. 1981), 631 P.2d 293, 38 St.Rep. 1078. In order 

to prove the existence of a "particularized suspicion", the 

State must show: " (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or 
has been engaged in wrongdoing. . . . " Gopher, 631 P.2d at 

Section 61-8-403, MCA, sets forth the petitioner's 

rights to appeal. It reads: 

The department shall immediately notify 

any person whose license or privilege to 

drive has been suspended or revoked, as 

hereinbefore authorized, in writing and 

such person shall have the right to file 

a petition within 30 days thereafter for 

a hearing in the matter in the district 

court in the county wherein such person 

resides or in the district court in the 

county in which this arrest was made. 

Such court is hereby vested with 

jurisdiction and it shall be its duty to 

set the matter for hearing upon 10 days" 

written notice to the county attorney of 

the county wherein the appeal is filed 

and such county attorney shall represent 

the state, and thereupon the court shall 

take testimony and examine into the facts 

of the case, except that the issues shall 

be limited to whether a peace officer had 

reasonable grounds to believe 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, whether 

the person was placed under arrest, and 

whether such person refused to submit to 

the test. The court shall thereupon 

determine whether the petitioner is 

entitled to a license or is subject to 

suspension as heretofore provided. 

Under the statute, the District Judge should have 

determined if the police officer had reasonable grounds to 

believe the petitioner had been driving while under the 

influence of al-cohol, whether the petitioner was placed under 

arrest, and wh~ther petitioner refused to submit to the blood 

alcohol test. Those were the only issues provided under the 

statute, and he did not address them. Instead he focused on 

the question of the initial stop and the claimed lack of 

reasonable grounds for that stop. 

In Petition of Burnham (Mont. 1985) , 705 P. 2d 603, 42 

St.Rep. 1342, this Court pointed out that the implied consent 

law is a civil administrative proceeding separate and 
distinct from the criminal action on the charge 015 driving 

while intoxicated. Each proceeds independently of the other. 

There is no connection between the criminal statute 

prohibiting the operation of the motor vehicle while under 

the influence of alcohol and the statutes requiring consent 

to a chemical- test to determine blood alcohol content. The 

court should have ruled upon the sufficiency of the evidence 

to establish that the police officer had reasonable grounds 

to believe petitioner was driving under the influence of 

alcohol, that petitioner was placed under arrest, and that he 

refused to submit to the test. Substantial evidence was 

submitted on each of these issues. 

In addition, we disagree with the conclusion of the 

District Court that the initial stop was illegel for lack of 

reasonable grounds for the police officer to believe 

petitioner was operating a vehicle under the influence of 

alcohol prior to the actual stop of petitioner's vehicle. 

There is no dispute that petitioner was driving in the 

vicinity of several bars around 2:00 a.m., which is near the 

closing time for bars in Montana. In addition, petitioner's 

own testimony established that he swerved into the wrong 

traffic lane. In itself, the driving of a vehicle into the 

wrong traffic lane may be sufficient to constitute a traffic 

violation under S 61-8-321, MCA. In addition, such 

uncontradicted evidence is sufficient to constitute a 

particularized suspicion that the petitioner may have been 

driving while under the influence of alcohol. We conclude 

that the conduct of Officer Zeitner met the particularized 

suspicion test of State v. Gopher. 

Issue two is whether the District Court erred in 

considering hardship factors. As noted above the court 

having disposed of the case on grounds other than provided by 
statute, we remand the case for further hearings on whether 

the petitioner should be granted a restricted driving permit. 

As to issue three, upon remand this matter can be further 

considered by the District Court. 

The order of the District Court is vacated and the case 

remanded to the District Court. 

We concur: 

( (Zhief Justice f/ \ 

Justices 
Nr. Justice John C. Sheehy, dissenting: 

I dissent. 

Proceedings to suspend the driver's license of one who 

refuses to submit to a chemical test designated by the 

arresting officer (section 61-8-402, MCA) and the right of 

appeal granted such driver (section 61-8-403, MCA) are civil 

in nature. The proceedings therefore are governed by the 

Rules of Civil Procedure. Under Rule 52(a), M.R.Civ.P. 

"[flindings of fact shall not be set aside unless clearly 

erroneous." The majority opinion ignores this rule of 

appellate review, ignores the findings of fact made by the 

district judge who heard the witnesses, and makes no excuse 

for its iqnoratio elenchi. 

Following are the pertinent findings of fact made by the 

District Court: 

1. The petitioner is the President of the Dillon 

Jaycees. On October 10, 1984, he together with a 

number of his Jaycee associates were engaged in 

community service work, at the Club's facilities at 

the Beaverhead County Fair Grounds. During the 

course of the evening, a quantity of beer was 

consumed--petitioner admitted to having "four or 

five beers." However much was consumed did not 

affect the performance of their duties, and in fact 

petitioner secured the Fair Grounds facility, which 

involved among other acts, the intricate 

manipulation of a complicated bolt lock on a gate. 

Each of the members of the work party proceeded to 

their homes in separate vehicles. Petitioner 

departed the Fair Grounds at approximately 2 a.m. 

on October 11, followed by his companion. 

2. The petitioner's route to his home involved 

stopping at a number of stop signs, including a 

railroad crossing. He proceeded north on Montana 

Street, followed by his companion, the latter 

confirming that all traffic laws were obeyed, and 

that petitioner was properly operating his vehicle. 

At a point near the 300 block of North Montana, the 

petitioner swerved into the south bound lane to 

avoid hitting a pedestrian. The following 
colleague noted the "swerve", which was the only 

"erratic" maneuver in a dozen blocks. 

3. A Dillon Police officer, travelling south on 

Montana Street also took note of the "swerve." The 

officer swore that there were multiple weavings in 

and out of petitioner's lane, but admitted his view 

was somewhat obstructed by another car. In any 

case, the officer turned around and stopped 

petitioner a couple of blocks further north on 

Montana. 

5. This court makes no finding as to the evidence 

of sobriety, which may have been adduced at any 

time subsequent to the apprehension of petitioner. 

This court finds that the onlv issue to be 

determined in this proceeding is wgether or not the 

officer had "reasonable" grounds to believe that 

the petitioner was operating a motor vehicle while 

under the influence, prior ---- t6- the time he stopped 

the suspect's vehicle. (Emphasis in original. ) 

The right of a police officer to make a warrantless 

arrest in Montana is defined by statute. Section 

46-6-401(1) (d), MCA, provides that: "A peace officer may 

arrest a person when . . . he believes -- on reasonable grounds 

that the person is committing an offense or that the person 

has committed an offense and the existing circumstances 

require his immediate arrest." The District Court properly 

defined the issue in this case under the statute, and 

determined as a conclusion of law: 

The conflicting evidence is not sufficient to 

establish by a preponderance of the evidence, that 

the arresting officer had reasonable grounds in 

initially believing that the Bl-ake vehicle was 

being operated by one under the influence of 

alcohol on October 11, 1984. 

The recitation of facts contained in the majority 

opinion are at considerable variance from the findings of the 

District Court. It is the duty of this Court, in appellate 

review, either to accept the findings of fact by the District 

Court under Rule 52(a), M.R.Civ.P. or to set them aside as 

clearly erroneous. The majority opinion fails to set forth 
reasons of any kind why the findings of the District Court, 

apparently based on the credibility of the witnesses, should 

not be uphel-d by the majority. Only recently, this Court 

stated the rules with respect to findings of fact made by a 

District Court: 

Rule 52 (a) , M.R.Civ.P. provides in part: "Findings 

of fact shall not be set aside unless clearly 

erroneous and due regard shall be given to the 

opportunj-ty of the trial court to judge of the 

credibility of the witnesses." The Supreme Court 

may not subst.itute its judgment for that of the 

trial court. The presiding court is confined to 

determining if there is substantial credible 

evidence to support the findings of fact and 

conclusions of law. We view the evidence in the 

light most favorable to the prevailing party. 

(Citation omitted.) In construing Rule 52(a) this 

Court has stated that on review, the trial court's 

judgment is presumed correct, and this Court will 

draw every legitimate inference to support that 

presumption. (Citations omitted.) 

Interstate Brands Corp. v. Cannon (Mont. 19851, 708 P.2d 573, 

A particularized suspicion of some kind of wrongdoing, 

which we set out in State v. Gopher (Mont. 1981), 631 P.2d 

293, 38 St.Rep. 1078, must still meet the "reasonable 

grounds" test for a warrantless arrest by a police officer 

under section 46-6-401(1) (d), MCA. The Gopher test has two 

elements which the state must prove: 

Primarily applying the rules of Cortez, the State 

submits that sufficient particularized suspicion 

existed to justify the stop of defendant's car. 

The State's burden has two elements: (1 

objective data from which an experienced officer 

can make certain inferences; and (2) a resulting 

suspicion that the occupant of a certain vehicle is 

or has been engaged in wrongdoing or was a witness 

to criminal activity . . . 

In Gopher, the police officer had advance information 

that a crime had been committed and he was observing the 
actions of a slow moving automobile n a residential area. 

In the case at bar, the District Court found nothing more 

than vehicles in the line of traffic, with one of them making 

one swerve. The District Court determined that a single 

swerve of a vehicle to avoid hitting a pedestrian did not 

suffice to provide reasonable grounds for a warrantless 

arrest in this case. Gopher did not suspend section 

46-6-401(1) (d), MCA as to the necessity for reasonable 

grounds for a warrantless arrest. If it did we don't need a 

legislature to make laws. 

The majority opinion implies that the District Court did 

not rule on the sufficiency of the evidence to establish the 

police officer had "reasonable grounds" to believe petitioner 

was driving under the influence of alcohol. The foregoing 

recitations from the findings of fact and conclusions of law 

of the district judge belie that imp,-i-cation. 

IV. 

More ominous to drivers under the enforcement of traffic 

laws in Montana, especially with reference to alcoholic 

driving, is the implication in the majority opinion that a 

police officer who has placed a driver under arrest may cause 

the eventual suspension of the driver's license without 

regard to whether the arrest itself was lawful. Incredibly, 

the State has argued in this case that the question of the 

la-wfulness of the arrest is not to be considered on review in 

this type of case and this Court, by implication, seems to 

agree. The State's position is set forth in its reply brief: 

It is the State's position that Officer Zeitner's 

arrest of Blake was la.wfu1 and that the initial 

stop was based on a particularized suspicion of 

wrongdoing. (See - Argument I., infra.) It is also 

the State's response to Blake's argument, however, 
that the lawfulness of any arrest does not fall 

within the purview of what a district court may 

review in determining whether license is properly 

suspended or revoked pursuant to the implied 

consent statute. 

Here the State is arguing that section 61-8-403, MCA, 

providing for the right of a driver to appeal from the 

license suspension limits the District Court to "whether the 

officer had reasonable grounds to believe the person had been 

driving a motor vehicle upon the highways of the 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 test." The State contends that 

under the statute, the lawfulness of the arrest is not a.t 

issue, and if the defenda~nt is in fact under arrest, whether 

lawfully accomplished or not, and refuses to submit to a 

chemical test of his sobriety, he loses his right to a 

driver's license. 

That narrow interpretation of section 61-8-403, MCA, by 

the State is an issue that should be addressed by the 

majority and is not. The implication is left, however, from 

the facts of this case, that an unlawful arrest may still 

give rise to a suspension of the driver's license. 

I would affirm the District Court. 

Mr. Justice William E. Hunt, Sr., and Mr. Justice Frank B. 

Morrison, Jr., dissenting: 

We coneur in the foregoing dissent of 24r. Justice Sheehy. /