DA 07-0173

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 128

IN RE THE LICENSE SUSPENSION OF 

BEVERLY SAMPSON CYBULSKI.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Custer, Cause No. DV 06-119

Honorable Gary L. Day, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Honorable Mike McGrath, Attorney General, Brenda G. Nordlund; 

Assistant Attorney General, Helena, Montana

Wyatt A. Glade; County Attorney, Miles City, Montana

For Appellee:

A. Lance Tonn; Lucas & Tonn, P.C., Miles City, Montana

Submitted on Briefs: February 20, 2008

 Decided: April 21, 2008

Filed:

__________________________________________

Clerk

April 21 2008
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 The State appeals the District Court’s order reinstating Beverly Cybulski’s driver’s 

license. We reverse. 

¶2 We restate the issue as follows:

¶3 Did the District Court err by granting Cybulski’s petition to reinstate her 

driving privileges?

BACKGROUND

¶4 At about 11:25 p.m. on August 21, 2006, Dispatcher Lyne Anderson of Miles City 

received a 911 call from a driver on I-94 east who reported that he had just passed a red 

Camaro or Firebird near mile marker 188 going the wrong way on the highway. This

citizen tip was confirmed a short time later by Under Sherriff Roos, who passed the red 

Camaro near mile marker 168. Roos contacted Dispatcher Anderson to report that the 

vehicle was traveling westbound in the eastbound lane of I-94, in excess of 100 miles per 

hour. Deputy Hayter was present at the dispatch center that evening, and overheard the 

calls come in. When it became clear that the Camaro was approaching his jurisdiction, 

he left the dispatch center to respond to the call.

¶5 Deputy Hayter parked his patrol car on the cross-over near exit 146 to intercept the 

Camaro. He requested the assistance of other peace officers in stopping the Camaro. In 

the meantime, 911 calls from drivers on I-94 continued to pour in. 

¶6 Close to 11:53 p.m., Deputy Hayter got a visual on the red Camaro traveling west

in the eastbound lane of I-94. According to Hayter’s radar, the car was traveling at 75 

miles per hour. He activated his lights and sirens, and began pursuit of the vehicle. The 
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Camaro failed to respond. Several miles later, with Deputy Hayter still in pursuit, the 

Camaro passed Sergeant Davis. Davis was staked out near exit 141, waiting to intercept 

the errant Camaro. Davis activated his emergency lights and sirens, and joined the 

pursuit.

¶7 After driving on the wrong side of the divided highway for nearly fifty miles, 

passing multiple vehicles traveling in the opposite direction, and being pursued for more 

than six miles by police officers with emergency lights and sirens activated, the red 

Camaro finally slowed to a stop near mile marker 139. Sergeant Davis reached the car 

first, and gave some commands to the driver, a woman later identified as Beverly 

Cybulski (“Cybulski”). Cybulski did not respond to Davis’s instructions, so he forcibly 

removed her from the vehicle, and placed her facedown on the ground. Deputy Hayter 

assisted Sergeant Davis in restraining Cybulski. Both officers noticed a strong odor of 

alcohol on her person, though the record contains conflicting evidence as to whether they 

noticed this before or after handcuffing her.

¶8 After Sergeant Davis read Cybulski her Miranda rights, Cybulski admitted that she 

had been drinking. Both officers noticed that Cybulski seemed disoriented and confused. 

Davis handed custody of Cybulski over to Deputy Hayter, who took her to the Custer 

County Detention Center for further processing and DUI testing. 

¶9 At the detention center, Deputy Hayter administered several sobriety tests to 

Cybulski. Cybulski indicated that due to a prior injury or surgery, she could not perform 

any tests which involved walking or standing on one leg. Deputy Hayter asked Cybulski 

to recite the alphabet. Midway through the alphabet, she paused, and then asked if she 
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could continue. Deputy Hayter indicated that she could, and she then finished the 

recitation. In Hayter’s judgment, Cybulski failed the alphabet test. 

¶10 Next, Hayter administered the HGN test. He was trained to administer the test;

however, this was the first time he had actually given one. Deputy Hayter noticed that 

Cybulski’s eyes were red and bloodshot, and after observing her involuntary eye 

movements, concluded that she failed the HGN test. He then asked her to perform a 

breathalyzer test, and explained the consequences of refusing under Montana’s informed 

consent law. Cybulski refused; Deputy Hayter read her her Miranda rights again, and 

turned her over to the detention staff. Deputy Hayter issued three citations to Cybulski: 

first, for driving under the influence of alcohol in violation of § 61-8-401, MCA; second, 

for driving on the wrong side of a divided highway in violation of § 61-8-330, MCA; and 

third, for reckless driving in violation of § 61-8-301, MCA. The time of each offense 

was listed as five minutes after twelve. 

¶11 Cybulski subsequently filed a petition for reinstatement of her driver’s license. 

The State moved for summary judgment, arguing that since Cybulski subsequently pled 

guilty to the divided highway traffic violation, no genuine issue of material fact existed as 

to whether her arrest was “supported by legally obtained particularized suspicion.” 

Cybulski cross-moved for summary judgment on the same issue. The court partially 

granted the State’s motion, noting that at the summary judgment hearing, both parties 

conceded that the officers had the requisite particularized suspicion to conduct an initial 

traffic stop of Cybulski’s vehicle. Cybulski reserved the issue of whether the officers had 

particularized suspicion to conduct sobriety testing for resolution at trial. The court 
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denied Cybulski’s summary judgment motion, concluding that genuine issues of material 

fact existed as to whether “there was particularized suspicion for the officer to believe 

that the driver was intoxicated.” 

¶12 The court then held a full hearing on the petition. Cybulski’s counsel called 

Deputy Hayter as a witness, and asked him when, in his opinion, Cybulski was under 

arrest for driving under the influence of alcohol. Deputy Hayter testified that “[s]he was, 

I believe, under arrest when she was handcuffed.” On cross-examination, Deputy Hayter 

testified that he would have placed Cybulski in custody for the traffic violations 

regardless of whether he had observed any indicators that she was under the influence of

alcohol. He explained that he chose to conduct the sobriety testing at the detention 

center, after she was taken into custody, because it was too hazardous to conduct the 

testing on the highway.

¶13 Before the State finished examining Deputy Hayter, the court informed counsel 

that it was ready to rule. The State sought to call Sergeant Davis as a witness, and to 

introduce a video tape of the arrest into evidence. The court refused, and explained that it 

found Deputy Hayter’s testimony as to the time of the arrest outcome-determinative. The 

court held that Deputy Hayter lacked both the particularized suspicion required to 

conduct sobriety tests on Cybulski, and the probable cause to arrest her for driving under 

the influence. As a result, the court held that the requirements of § 61-8-403(4)(a), MCA, 

were not satisfied, and her license should not have been suspended. The court issued an 

order reinstating Cybulski’s driving privileges, which the State now appeals.
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STANDARD OF REVIEW

¶14 We review a district court’s order denying or granting a petition for reinstatement 

of a driver’s license to determine whether the findings of fact are clearly erroneous, and 

whether its conclusions of law are correct. Bush v. Montana Dept. of Justice, 1998 MT 

270, ¶ 7, 291 Mont. 359, ¶ 7, 968 P.2d 716, ¶ 7. A court’s findings of fact are clearly 

erroneous if they are not supported by substantial evidence, if the court has 

misapprehended the effect of the evidence, or if our review of the record convinces us 

that a mistake has been made. Bush, ¶ 7. 

DISCUSSION

¶15 Did the District Court err by granting Cybulski’s petition to reinstate her 

driving privileges?

¶16 Under § 61-8-402, MCA, any person driving on a public road in this state has 

given implied consent to chemical testing to determine whether they are driving under the 

influence of drugs and/or alcohol. If a driver refuses to submit to testing, his or her 

driver’s license will be immediately confiscated and suspended. Section 61-8-402(4), 

MCA. When reviewing the suspension of a driver’s license under this part, the district 

court is limited to considering the issues set forth in § 61-8-403(4)(a), MCA, which (in 

relevant part) are whether:

(i) a peace officer had reasonable grounds to believe that 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 and the person was placed under arrest for violation 

of 61-8-401; . . . and (iv) the person refused to submit to one or more tests 

designated by the officer.
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In interpreting this section, the district court considers three distinct issues:

(1) whether the arresting officer had reasonable grounds to believe the 

petitioner had been driving or was in actual physical control of a vehicle 

upon a way of the state open to the public while under the influence of 

drugs or alcohol; (2) whether the petitioner was lawfully under arrest; and 

(3) whether the petitioner refused to submit to a blood or breath test. 

Muri v. State, 2004 MT 192, ¶ 9, 322 Mont. 219, ¶ 9, 95 P.3d 149, ¶ 9. Cybulski has 

stipulated that she refused to submit to the breath test proffered by Deputy Hayter. Thus, 

only the first two issues are in dispute; we consider each in turn.

¶17 Before we turn to our analysis of whether Deputy Hayter had reasonable grounds 

to believe that Cybulski was driving under the influence, and whether she was lawfully 

under arrest for violating § 61-8-401, MCA, we must address a threshold issue. At the 

hearing, Deputy Hayter testified that Cybulski was under arrest for driving under the 

influence at the time that she was placed in handcuffs. Based on this testimony alone, the 

District Court concluded: “I find that Cybulski was under arrest for the offense of 

driving under the influence of alcohol at the time her hands were cuffed behind her back 

after the initial stop . . . . I further find that said arrest was unlawful because, at that time, 

the officer did not have particularized suspicion that Mrs. Cybulski was driving under the 

influence of alcohol.” As a result, the District Court found that “all testing to determine 

the state of Cybulski’s being under the influence of alcohol or the lack thereof was 

unlawful as said testing must be first preceded by a lawful arrest.” 

¶18 In reaching this conclusion, the District Court erred by giving conclusive weight to 

Deputy Hayter’s subjective opinion that Cybulski was under arrest for driving under the 

influence at the time she was handcuffed. The Supreme Court of the United States has 
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clearly stated that an arresting officer’s subjective opinion or state of mind is irrelevant to 

determining whether probable cause existed:

[A]n arresting officer’s state of mind (except for the facts that he knows) is 

irrelevant to the existence of probable cause . . . . Subjective intent of the 

arresting officer . . . is simply no basis for invalidating an arrest. Those are 

lawfully arrested whom the facts known to the arresting officers give 

probable cause to arrest.

Devenpeck v. Alford, 543 U.S. 146, 153-55, 125 S. Ct. 588, 593-94 (2004) (citations 

omitted). Deputy Hayter’s own subjective opinion as to when Cybulski was under arrest 

for the charge of driving under the influence is legally irrelevant. The only legally 

relevant facts are those facts and circumstances within Deputy Hayter’s personal 

knowledge. Rather than relying on Deputy Hayter’s subjective opinion, the District 

Court should have made its own independent legal determination of whether Deputy 

Hayter had reasonable grounds and probable cause to believe that Cybulski was driving 

under the influence of alcohol. We consider those issues now. 

¶19 A. Did Deputy Hayter have reasonable grounds to believe that Cybulski was

driving under the influence of drugs and/or alcohol?

¶20 We have held that the standard for finding “reasonable grounds” under 

§ 61-8-403(4)(a)(i), MCA, is identical to the “particularized suspicion” standard under 

§ 46-5-401, MCA. Bush, ¶ 10. Whether particularized suspicion exists to justify an 

investigative stop under this section is a question of fact which depends on the totality of 

the circumstances. State v. Loney, 2004 MT 204, ¶ 7, 322 Mont. 305, ¶ 7, 95 P.3d 691, 

¶ 7. We use a two-step test to determine whether sufficient particularized suspicion 

existed to justify an investigative stop: “(1) objective data from which an experienced
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officer can make certain inferences; and (2) a resulting suspicion that the occupant of a 

certain vehicle is or has been engaged in wrong doing.” Loney, ¶ 7. 

¶21 The District Court ruled that, as a matter of law, Deputy Hayter had the requisite 

particularized suspicion to stop Cybulski for violating § 61-8-330, MCA, by driving on 

the wrong side of the highway. Cybulski does not challenge this, but instead argues that 

Deputy Hayter lacked the requisite particularized suspicion to believe that Cybulski was 

driving under the influence, and to conduct sobriety testing. Of course, the particularized 

suspicion justifying the initial traffic stop may also serve as the necessary particularized 

suspicion for administering field sobriety tests. Hulse v. State, Dept of Justice, 1998 MT 

108, ¶ 39, 289 Mont. 1, ¶ 39, 961 P.2d 75, ¶ 39. However, in reviewing a license 

suspension, § 61-8-403(4)(a)(i), MCA, specifically requires us to consider whether the 

“peace officer had reasonable grounds to believe that the person had been driving . . . 

while under the influence of alcohol.” To examine whether sufficient objective data 

existed that would allow an experienced officer to suspect that Cybulski was driving 

under the influence of alcohol, we must return to the facts in detail.

¶22 Cybulski drove on the wrong side of a major interstate highway for more than

forty miles, oblivious to the fact that she was passing traffic traveling in the opposite 

direction. From the numerous 911 calls, the officers knew that Cybulski had been 

traveling in the wrong lane of the divided highway for at least a half an hour. The 

officers were entitled to rely on these citizen tips, because though they were anonymous, 

their credibility was confirmed by Under Sheriff Roos’s eyewitness account (Roos passed 

Cybulski on I-94 shortly after the first 911 call came in), and later by their own firsthand 
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observation. State v. Sharp, 217 Mont. 40, 45-46, 702 P.2d 959, 962 (1985) (holding that 

an officer was entitled to rely on a citizen tip which was “corroborated when [the officer] 

found the described vehicle going in the direction and on the highway reported by the 

telephone caller.”).

¶23 Furthermore, Cybulski failed to promptly respond to Deputy Hayter’s emergency 

signals and directives to pull over. In Henderson, we held that a driver’s failure to 

immediately respond to an officer’s emergency signals for two and a half blocks 

constituted a particularized suspicion that the driver “might be impaired.” State v. 

Henderson, 1998 MT 233, ¶ 5, 291 Mont. 77, ¶ 5, 966 P.2d 137, ¶ 5. Here, Cybulski 

continued to drive for six miles after Deputy Hayter activated his emergency signals, and 

did not pull over until after Sergeant Davis had joined in the pursuit. Once Cybulski was 

stopped, Sergeant Davis approached her vehicle and gave her several commands, but she 

still did not respond. Sergeant Davis had to physically remove Cybulski from her 

vehicle. 

¶24 We conclude that an experienced officer could infer that Cybulski was driving 

under the influence from the sheer length of time that Cybulski traveled on the wrong 

side of the interstate, and her apparent obliviousness to oncoming traffic traveling in the 

same lane. When this was paired with Cybulski’s unusually delayed response to the 

officer’s emergency signals, spotlights, and sirens, Deputy Hayter was entitled to infer

that Cybulski was driving under the influence before she even stopped her car. 

Therefore, Deputy Hayter had the requisite particularized suspicion to believe that 

Cybulski was driving under the influence, and to conduct further sobriety testing.
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¶25 B. Was Cybulski lawfully under arrest for violating § 61-8-401, MCA?

¶26 Under § 61-8-403(4)(a), MCA, an officer’s request for a chemical sobriety test 

must be preceded by a lawful arrest for violating § 61-8-401, MCA. Bush, ¶ 12. To be 

lawful, the arrest must comply with all the constitutional and statutory requirements for a 

warrantless arrest. Section 46-6-311, MCA; Bush, ¶ 12. A peace officer may arrest a 

person without a warrant if the officer has probable cause to believe that the person is 

committing an offense or that the person has committed an offense and existing 

circumstances require immediate arrest. Section 46-6-311 (1), MCA. Probable cause 

exists if, at the time of the arrest, there were sufficient facts and circumstances within the 

officer’s personal knowledge to warrant a reasonable person’s belief that the suspect had 

committed an offense. Bush, ¶ 12. 

¶27 Deputy Hayter had probable cause to arrest Cybulski for driving under the 

influence before the officers even removed her from the vehicle. Deputy Hayter knew 

that Cybulski had been traveling westbound in the eastbound lane on I-94 for at least a 

half an hour. The entire time, she was unaware that she was passing oncoming traffic in 

her lane, not to mention billboards facing the wrong way. Deputy Hayter chased 

Cybulski for more than six miles, but she was oblivious to his emergency signals, siren, 

and spotlight. She did not pull over until Sergeant Davis joined the chase. Once her 

vehicle was stopped, she failed to respond to Sergeant Davis’s instructions, and so the 

officers had to forcibly remove her from the car. In sum, there were more than enough 

facts and circumstances within Deputy Hayter’s personal knowledge to support a 

reasonable belief that Cybulski was driving under the influence of alcohol that night.
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¶28 Cybulski argues that Deputy Hayter could not have had probable cause to arrest 

her for driving under the influence, because he did not observe that her eyes were 

bloodshot or smell alcohol on her breath before arresting her. Probable cause does not 

usually develop until after the officer stops the vehicle and observes the driver. However, 

given the flagrant nature of Cybulski’s traffic violation, her absolute obliviousness to her 

surrounding environment, and her delayed response to the officers’ attempts to pull her 

over, Deputy Hayter had sufficient probable cause to arrest her immediately for driving 

under the influence. Under these egregious circumstances, a reasonable person could 

certainly conclude that Cybulski was driving under the influence of alcohol. 

¶29 Nor was Deputy Hayter required to administer sobriety tests at the scene before 

arresting Cybulski. Sobriety testing is not a prerequisite to finding probable cause; we 

have held that “the absence of such tests do[es] not fatally flaw the probable cause 

determination.” City of Missoula v. Forest, 236 Mont. 129, 133, 769 P.2d 699, 701 

(1989). In this case, Deputy Hayter had ample probable cause to arrest Cybulski for 

drunk driving without conducting any sobriety testing.

¶30 In sum, Deputy Hayter had both particularized suspicion to believe that Cybulski 

was driving under the influence of alcohol, and probable cause to arrest her for violating 

§ 61-8-401, MCA. Thus, Cybulski was lawfully under arrest for driving under the 

influence of alcohol at the time the officers handcuffed her on the interstate. 

CONCLUSION

¶31 The District Court erred in finding that Deputy Hayter did not have particularized 

suspicion to ask Cybulski to submit to sobriety testing. The court also erred in 
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concluding that Deputy Hayter did not have probable cause to arrest Cybulski for driving 

under the influence of alcohol. Cybulski was lawfully under arrest for driving under the 

influence of alcohol at the time Deputy Hayter asked her to submit to a breathalyzer test. 

Cybulski refused; pursuant to § 61-8-402(4), MCA, her license was properly suspended. 

Reversed. 

/S/ W. WILLIAM LEAPHART

We concur: 

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS

/S/ JIM RICE