No. 92-566 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

LEO DAVID McCULLUGH, 

Petitioner and Appellant, 

v. 

STATE OF MONTANA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Manley, Esq., Manley Law Offices, 

Polson, Montana 

For Respondent: 

Honorable Joseph P. Mazurek, Attorney General; 

Carol E. Schmidt, Assistant Attorney General; 

Helena, Montana 

Larry J. Nistler, County Attorney: Robert J. Long, 

Deputy County Attorney; Polson, Montana 

Submitted on Briefs: June 17, 1993 
Chief Justice 3. A. Turnage delivered the Opinion of the Court. 

Leo David McCullugh appeals from an order entered by the 

District Court for the Twentieth Judicial District, Lake County, 

The court denied McCullugh's petition to vacate an order suspending 

his driver's license pursuant to 5 61-8-402, MCA. We affirm. 

The issue is whether the District Court erred in ruling that 

the arresting officer had probable cause to arrest McCullugh for 

driving or being in actual physical control of a vehicle while 

under the influence of alcohol. 

On August 21, 1992, at approximately 6 a.m., Lake County 

Deputy Sheriff Edward Todd observed a truck off the road on old 

Highway 93 south of Pablo, Montana. The front end of the truck was 

in the ditch and the rear end was up on the road a little bit. 

Todd observed McCullugh jacking up the back end of the truck. 

After talking to McCullugh, Todd concluded that he was under 

the influence of alcohol, placed him in the back of his patrol car, 

and called for assistance from a highway patrol officer. The 

highway patrol officer checked McCullugh's eyes for nystaqmus, 

noted that his balance was unsteady, and detected a strong odor of 

alcohol on his breath. He arrested McCulluqh for driving under the 

influence of alcohol. 

McCullugh refused to take a breath test. As a result, his 

driver's license was suspended pursuant to 5 61-8-402, MCA. We 

note that this action under the implied consent law is separate 

from any DUI prosecution arising out of these events. 

2 
McCullugh appealed the suspension of his driver's license to 

~istrict Court, arguing that the highway patrol officer did not 

have reasonable grounds to believe that he had been driving or tias 

in actual control of a vehicle while under the influence of 

alcohol. After a hearing, the District Court denied the petition 

to vacate the suspension of McCullugh's driver's license. 

Did the District Court err in ruling that the arresting 

officer had probable cause to arrest McCulluqh for driving or being 

in actual physical control of a vehicle while under the influence 

of alcohol? 

Section 61-8-403, MCA, provides that, in a petition for 

review of the revocation of a driver's license for failure to 

submit to a blood, breath, or urine test, 

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, drugs, or a combination of the 

two, whether the person was placed under arrest, and 

whether such person refused to submit to the test. 

McCullugh contests only the first of these three issues, whether 

the arresting officer had reasonable grounds to believe he was in 

actual physical control of his truck upon a public highway while 

under the influence of alcohol. 

"Reasonable groundsm as used in 5 61-8-403, MCA, is synonymous 

with "probable cause." Boland v. State (1990), 242 Mont. 520, 524, 
The probable cause requirement is satisfied at the time 

of arrest if the facts and circumstances within the 

officer's personal knowledge, or upon information 

imparted to him by a reliable source, are sufficient to 

warrant a reasonable person to believe that the suspect 

has committed an offense. 

State v. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515. 

At the hearing before the District Court, McCullugh testified 

that his truck became stuck in the ditch hours before Deputy Todd 

observed him there. McCullugh testified to the following chronology of events: Angry with his wife, he left home a little after 2 

a.m. to spend the night at a friend's house. While he was driving 

to the friend's house, his brakes went out, He turned the truck 

into the ditch, planning on leaving it there until he could get the 

brakes fixed. He had not been drinking alcohol up to this point. 

He then walked to his friend's house in Pablo, where the friend 

invited him to drink some Black Velvet and to stay for the night. 

After drinking about half of a fifth of Black Velvet, McCullugh 

became concerned that the back end of his truck was in the road. 

He walked back to the vehicle about 6 a.m. to push the back end of 

the truck off the road. When he was arrested, he did not realize 

that he did not even have the keys to the truck with him, having 

left them on his friend's kitchen counter. 

McCullugh asserts that the arresting officers should have 

ascertained whether he had the keys to the truck with him when they 

arrested him. He also maintains they should have checked the hood 

of the truck to see if it was warm and should have questioned him 
as to when he had been driving, when he had been drinking, or 

whether he had been drinking prior to driving. 

At the hearing on McCullugh's petition to vacate the suspension of his driver's license, the highway patrolman testified: 

A. I was called out roughly 20 after 6:00 or so and was 

advised that Ed had run across a wreck on Old Highway 93 

just south of Pablo. When I got there, I talked to Ed 

for a little bit and noted there was a pickup, as Ed 

stated earlier, nosed into the borrow pit with the tail 

end sticking nut a little bit and there was a jack, it 

appeared that someone was jacking it up, and the driver, 

Mr. McCullugh, was in the back of Deputy Todd's patrol 

car, I asked Ed about everything, what had took place: 

if he talked to the driver. He said momentarily, but he 

said there obviously was alcohol involved, you could 

smell it on the driver, and he thought there might be 

some damage to the vehicle, which there wasn't. I found 

no damage to the pickup at all. I then went and had the 

driver get out and questioned him. 

Q. Okay. Did you question him regarding whether he had 

been driving? 

A. Yes, I did. 

Q. And what was the substance of that conversation? 

A. He stated he was coming into Pablo from the south, 

lost his brakes and went into the borrow pit. 

Q. Okay. Did he indicate whether he had just done that 

or whether that was three hours prior to your arriving? 

A, From what he told me, it was within an hour, so about 

a quarter to 6:00 or so. 

Q. Okay. Did he ever make any statements about having 

been over at Mr. Mather's house? 

A. No, he didn't. However, he stated that that's where 

he was going to. 
Q. Okay. Did he ever -- well, did you ask him about 

whether he had been drinking? 

A. Yes. I asked him if he had had anything to drink and 

he stated that he had about a case of beer. 

The defense points out that, in his written report, the 

highway patrolman did not write that McCullugh was driving within 

a hour of when he was arrested. It also cites the following 

testimony of the highway patrolman on cross-examination: 

Q. Now, Patrolman Roth, let me ask you about your 

testimony here a moment ago. Mr. Long asked you if Mr. 

McCullugh had made any stateaents about when he had heen 

driving into Pablo, and I believe that your testimony was 

that from what you understood or from what you got, it 

had been within an hour? 

A. That's the conversation I had with Mr. McCullugh as 

we were driving into Polson. 

The defense points out that, as they were driving into Polson, 

McCullugh was already under arrest and that statements made after 

arrest cannot be used to support a determination of probable cause. 

Because of the question as to when McCullugh made the 

statement that he had been driving within an hour of his arrest, we 

do not consider that statement in determining whether there was 

probable cause for arrest. It does not appear that the District 

Court relied upon that statement, either. At the end of the 

hearing, the District Court stated: 

Both the deputy sheriff and the highway patrolman came on 

the scene. Here's a single occupant or a single person 

in control of this vehicle, he obviously had been 

drinking, it had run into the ditch. There was no reason 

for them to look for keys or try to ascertain whether the 

drinking had happened sometime after the accident. . . . [Tlhe petition is denied. 
The highway patrolmanis testimony demonstrates that Deputy 

Todd indicated to him that McCullugh was the driver of the truck. 

When he was arrested, McCullugh did not tell the law enforcement 

officers his story concerning the delay between his driving and his 

drinking. He would have this Court put the burden on the officers 

to elicit the information from him that he had "parked" his truck 

in the ditch, left the truck and ingested the Black Velvet, and 

then, several hours later, returned to the truck. He also asks us 

to put the burden on the officers to make sure that he had the keys 

to the truck in his possession at the time of his arrest. As the 

State points out, such a requirement would encourage persons in 

such situations to "lose1' their keys. 

McCullugh's story is not the first or most natural conclusion 

a reasonable person would reach after observing a man obviously 

under the influence of alcohol trying to move a vehicle stuck on 

the side of the road. At the time of his arrest, McCullugh did not 

offer the officers the explanation he now gives. We conclude that 

the information available to the officers at the time of McCullugh's arrest was sufficient to warrant a reasonable person to 

believe that McCullugh was in physical control of the truck. 

We affirm the ruling of the District Court. 
We concur: 
July 20, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

James A. Manley 

Manley Law Offices 

201 Fourth Ave. E. 

Polson, MT 59860 

Larry J. Nistler, County Attorney 

Robert J. Long, Deputy 

Lake County Courthouse 

Polson. MT 59860 

HON. JOSEPH P. MAZUREK Attorney General 

Carol E. Schmidt. Assistant 

Justice Bldg. 

Helena. MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA