No. 05-112

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 342N

SKYLOR J. STRASH, Petitioner and Appellant,

v. CITY OF KALISPELL; STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Defendants and Respondents.

APPEAL FROM: The District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 2004-666A, Honorable Ted O. Lympus, Presiding Judges

COUNSEL OF RECORD: For Appellant: Skylor J. Strash, Pro Se, Kalispell, Montana For Respondent: Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana Charles Harball, City Attorney; Richard M. Hickel, Deputy City Attorney, Kalispell, Montana

Submitted on Briefs: September 28, 2005 Decided: December 28, 2005

Filed:

__________________________________________ Clerk2 Justice Jim Rice delivered th e Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be re ported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and West Group in the quarterly table of noncitable cases issued by this Court. ¶2 Petitioner Skylor J. Strash appeals from the order of the District Court denying his petition for reinstatement of his driver’s license. We affirm. ¶3 In the early morning of September 11, 2004, Kalispell Police Department Officer Steve Hoover investigated a one-vehicle cr ash involving a Dodge Neon. On arrival, Officer Hoover observed the car, badly damaged, on the side of the road, and determined

that the car had collided with a tree some time around 4:00 a.m. Petitioner Skylor J. Strash (Strash) was on the s cene at Officer Hoover’s arriva l, and Hoover questioned him regarding the incident. During the questioning, Strash admitted to being the driver of the Dodge Neon. At that time, Hoover observed that Strash had bloodshot and glassy eyes,

and also that Strash smelled of alcohol. ¶4 Due to injuries sustained in the accident , Hoover escorted Strash to the hospital, where Strash consented to a preliminary breath te st. The test resulted in a reading of .10, or .02 over the limit. Subseq uently, Hoover requested Strash ’s consent to a blood test,

and Strash refused.3 ¶5 Section 61-8-402, MCA, authorizes peace offi cers to administer tests of a person’s blood or breath “for the purpose of determ ining any measured amount or detected presence of alcohol or drugs . . . .” Se ction 61-8-402(1), MCA. Furthermore, (2)(a) The test or tests must be ad ministered at the direction of a peace officer when: (i) the officer has reasonable grounds to believe that the person has been driving or has been in actual ph ysical control of a vehicle upon ways of this state open to the public whil e under the influence of alcohol . . . . Section 61-8-402(2)(a), MCA. Finally, “[t]he arresting or inves tigating officer may designate which test or te sts are administered.” Se ction 61-8-402(2)(b), MCA. ¶6 If a driver suspected of bein g under the influence of al cohol refuses to submit to blood or breath tests requested by an officer, th at person’s driver’s license must be seized and suspended by the State pursuant to § 61-8-402(4), MCA. While a license’s suspension under that statute may be cha llenged at a hearing in district court, challengeable issues are limited to those listed in § 61-8-403(4)(a), MCA, including whether, (i) a peace officer had reasonable gr ounds to believe that the person had been driving or was in actual phys ical control of a vehicle upon ways of this state open to the public while under the influence of alcohol . . . . Section 61-8-403(4)(a)(i), MCA. ¶7 The only issue before the District Court here was whether Officer Hoover had reasonable grounds to believe th at Strash had been under the influence of alcohol when he crashed the Dodge Neon. The District C ourt determined that reasonable grounds were present, and the evidence strong ly supports that conclusion. Strash admitted on the scene4 that he had been the driver of the crashe d Dodge, Hoover smelled alcohol on Strash’s person, and Hoover determined that Strash ’s eyes were bloodshot and glassy. ¶8 After review, we believe that it is approp riate to decide this case pursuant to our Order of February 11, 2003, amending Section 1.3 of our 19 96 Internal Operating Rules and providing for memorandum opinions. It is manifest on the face of the briefs and the record before us that the appeal is wit hout merit because the findings of fact are supported by substantial evid ence, the legal issues are clearly controlled by settled

Montana law which the District Court correc tly interpreted, and there was clearly no abuse of discretion by the District Court. ¶9 As we noted in Bush v. Department of Justice , 1998 MT 270, 291 Mont. 359, 968 P.2d 716, “the standard for finding ‘reas onable grounds,’ under § 61-8-403(4)(a)(i), MCA, is identical to the standard for findi ng a ‘particularized suspicion’ . . . .” Bush , ¶ 10. Furthermore, [t]he gravamen of the particularized susp icion standard is that the totality of the circumstances confron ting the officer at the tim e of the investigative stop must give rise to a particular ized and objective ba sis for suspecting criminal activity.

State v. Van Kirk , 2001 MT 184, ¶ 15, 306 Mont. 215, ¶ 15, 32 P.3d 735, ¶ 15. ¶10 Here, the totality of the circumstances supp ort the District Court’s conclusion that Officer Hoover had reasonable gr ounds to believe that Strash had been driving under the

influence of alcohol on the mo rning of September 11, 2004. Therefore, that court properly denied Strash’s petition to reinstate his driver’s license.5 ¶11 Affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY /S/ PATRICIA O. COTTER /S/ BRIAN MORRIS /S/ JOHN WARNER