>lo. 85-79 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

INTHEMATTER OF THE SUSPENSION OF THEDRIVER'S LICENSE OF WAYNE BLAKE

APPEAL FROM: District Court of the Fifth JudicialDistrict, In and for the County of Beaverhead, TheHonorable Frank Davis,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Hon. Mike Greely,Attorney General,Helena,Montana Kimberly Kradolfer,Asst. Atty. General,Helena W. G. Gilbert, 111, CountyAttorney,Dillon,Montana For Respondent: Max A. Hansen,Dillon,Montana ForAmicus Curiae: Vincent J. Kozakiewicz,Dillon,Montana

Filed: Submittedon Briefs: Oct. 3, I985 Decided: January 2311986

ClerkMr. JusticeJohn 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 motionwa.sheard January 11, 1985. That same day, the trial judge issued an order affirming his previous order and,cl-arifyingthe 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 underlyingorderofNovember 14, 1984.

# . . . To determine whether the trial court properly denied the State's petition for rehearing, we must review the record relied onby the trial judge in reachinghisdecision 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 membersplayed cards. Though he did notplay, 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 toleaving in their respective cars between 1:30 a.m. and :!:00

a.m. Petitioner testified that he drank four to five beers over the courseof 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 thepolice stationwhere he refused to submit to a breathalyzer test. His driver's licensewas subsequently suspended. Petitioner appealed the suspension of his driver's license to District Court, alleging lack of reasonable grounds for thepolice officer tobelievepetitionerhad 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 alcoholprior to the timepeti

### --- tioner'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 reasonablegrounds. 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 tomeet the test of "particularized suspicion,"as that term isdefined in State 

### 5 ~o~her 38 St.Rep. 178 and State 

### v. Stem~le 39 St.Rep. 1085; all the officer had wasa A. * "hunch" or "suspicion", and as the Supreme Court said in State 

### -- v. Lahr 172 Mt. 32, "mere suspicion on thepart 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 challenginghis 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, "aparticularized suspicion of some kind of wrongdoing." State v. Gopher (Mont. 1981), 631P.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 canmake certain inferences; and (2)a resulting suspicion that the occupant of a certain vehicle is orhas 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 towhether apeace officerhad 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 suspensionasheretoforeprovided. 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 influenceof al-cohol,whether the petitionerwasplaced under arrest,andwh~ther petitioner refused to submit to the blood alcohol test. Thosewere the only issuesprovided 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 Courtpointed out that the implied consent law is a civil administrative proceeding separate anddistinct 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 sufficiencyof the evidence to establish that the police officer had reasonable grounds to believe petitioner was driving under the influence of alcohol, that petitionerwasplaced under arrest, and thathe 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 stopwas 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 inMontana. 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 sufficientto 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 suspiciontest of Statev. Gopher. Issue two is whether the District Court erred in considering hardship factors. As noted above the court having disposed of the caseon grounds other than provided bystatute,we remand the case for further hearings on whether thepetitioner should be granted a restricted drivingpermit. As to issue three, upon remand this matter can be further consideredby theDistrictCourt. The order of the District Court is vacated and the case remanded to the DistrictCourt.

We concur:

((ZhiefJustice 

### f/ \

JusticesNr. Justice John C. Sheehy,dissenting:

Idissent.

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 (section61-8-403,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 iqnoratioelenchi. Following are thepertinent findingsof factmade by the DistrictCourt: 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 servicework,at the Club's facilitiesat 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 theirduties,and in fact petitioner secured the FairGrounds facility,which involved among other acts, the intricate manipulation of a complicated bolt lock on a gate. Each of the members of thework party proceeded to their homes in separate vehicles. Petitioner departed the Fair Grounds at approximately 2 a.m. on October 11, followedby 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 petitionerwasproperly operatinghisvehicle. At apoint near the 300block ofNorthMontana, the petitioner swerved into the south bound lane to avoid hitting 

### a pedestrian. The followingcolleague noted the "swerve", which was the only "erratic" maneuver in a dozenblocks. 3. A Dillon Police officer, travelling south on Montana Streetalso took note of the "swerve." The officer swore that there were multiple weavings in and outofpetitioner'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 thisproceeding iswgether ornot the officer had "reasonable" grounds to believe that the petitioner was operating a motorvehicle 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 reasonablegrounds 

### -- 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 determinedas a conclusionof 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 alcoholon October 11, 1984. The recitation of facts contained in the majority opinionare at considerable variance from the findingsof the District Court. It is the duty of this Court, in appellate review,either to accept the findings of factby theDistrict Court under Rule 52(a), M.R.Civ.P. or to set them aside as clearly erroneous. The majority opinion fails to set forthreasons of any kind why the findings of the District Court, apparently based on the credibility of the witnesses, should not be uphel-dby 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-tyof 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. (Citationomitted.) 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. (Citationsomitted.) InterstateBrands 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 certainvehicle is or has been engaged in wrongdoing or was a witness to criminalactivity

# . . .

In Gopher, the police officer had advance information that a crime had been committed and he was observing theactions 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 themmaking

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 legislatureto make laws.

Themajority opinion implies that the District Courtdid not rule on the sufficiency of the evidence to establish the police officerhad "reasonable grounds" tobelieve petitioner was driving under the influence of alcohol. The foregoing recitations from the findings of fact and conclusions of law of the district judgebelie 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 adriver 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-wfulnessof the arrest isnot to be considered on review in this type of case and this Court, by implication, seems to agree. The State'sposition is set forth in its replybrief: It is the State's position that Officer Zeitner's arrest of Blake was la.wfu1and 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 officerhad 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~ntis 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 suspensionof the driver's license. Iwould affirm the DistrictCourt.

Mr. JusticeWilliam E. Hunt, Sr., and Mr. Justice Frank B. Morrison, Jr.,dissenting: We coneur in the foregoing dissent of 24r. Justice Sheehy. /