NO. 90-237 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

BRADLEY H. ARMSTRONG, 

Petitioner and Appellant, 

STATE OF MONTANA, DEPARTMENT 

of JUSTICE, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eleventh ~udicial ~istrict, 

In and for the County of Flathead, 

The Honorable Michael F. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Erik Rocksund, Columbia Falls, Montana 

For Respondent: 

Ed Corrigan, Deputy Flathead County Attorney, 

Kalispell, Montana; Mark Racicot, Attorney General; 

Peter Funk, Assistant Attorney General, Helena, 

Montana 

Filed: 

Submitted on Briefs: August 23, 1990 

Decided: November 1, 1990 s 
Justice John C. Sheehy delivered the Opinion of the Court. 

Bradley H. Armstrong appeals from an order of the District 

Court of the Eleventh Judicial District, Flathead County, denying 

Armstrong's request that his right to drive be reinstated. We 

reverse the District Court. 

The sole issue raised on appeal is whether the District Court 

erred in its upholding of the implied consent suspension of 

Armstrong s driver s license in light of the State ' s concession 

that the arresting officer lacked legal basis to stop Armstrong's 

vehicle. 

In the early hours of February 21, 1990, Columbia Falls Police 

Officer Dale Stone made a stop of Bradley H. Armstrong's vehicle. 

Armstrong was subsequently arrested for being in actual physical 

control of a vehicle while under the influence of alcohol, in 

violation of 5 61-8-401, MCA. Armstrong refused to submit to a 

chemical test of his breath to determine blood alcohol content, and 

his license was seized pursuant to 5 61-8-402, MCA, the implied 

consent law. 

The D.U.I. charge was dismissed shortly thereafter, as the 

State conceded that the arresting officer did not have reasonable 

grounds to stop Armstrong's vehicle. 

On February 27, 1990, Armstrong filed an appeal and petition 

to reinstate his license pursuant to 5 61-8-403, MCA. In the March 

19, 1990 hearing, Armstrong stipulated to his refusal to submit to 

a breathalyzer test after the arrest. The State stipulated the 
officer did not have reasonable grounds to stop Armstrong. 

However, the State contended that probable cause developed after 

the stop to indicate that Armstrong was driving under the influence 

of alcohol. The State attempted to frame the issue as whether the 

officer, in his role as a public safety officer, had a valid 

investigative or safety reason to stop Armstrong as he drove down 

an alleyway at 2:30 a.m., from which reasonable grounds 

subsequently developed to arrest Armstrong for D.U.I. 

Alternatively, the State argued the license suspension provision 

of 5 61-8-402, MCA, to be an administrative act, separate and 

distinct from the criminal offense. The District Court concurred 

with the State's latter approach, and ruled from the bench that 

suspension under 5 61-8-402, MCA, ''is an administrative act that 

doesn't depend for its execution upon the lawfulness of the initial 

stop, It and therefore denied Armstrong' s petition. This appeal 

resulted. 

This Court has stated previously that refusal to submit to a 

chemical test for blood alcohol content is an issue separate and 

distinct from the criminal action of driving while intoxicated. 

Gebhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261; In re Blake 

(1986), 220 Mont. 27, 712 P.2d 1338; Petition of Burnham (1985), 

217 Mont. 513, 705 P.2d 603. The suspension of a license is 

subject to review under 5 61-8-403, MCA, which states: 

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 dayst 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 qrounds 

to believe the person had been drivinq 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. (Emphasis added.) 

In a district courtts review of the propriety of the license 

suspension for failure to submit to a chemical test, the only 

determinations to be made by the court are: 

(1) whether the arrestins officer had reasonable qrounds 

to believe the followinq: 

(a) that the petitioner had been driving or was in 

actual physical control of a vehicle; 

(b) that the vehicle was on a way of this state open to 

the public; and 

(c) that the petitioner was under the influence of 

alcohol ; 

(2) whether the individual was placed under arrest; and 

(3) whether the individual refused to submit to a 

chemical test. (Emphasis added.) 

Gebhardt, 775 P.2d at 1265. 

There is no question in this case that Armstrong was in 

control of a vehicle on a way open to the public, was arrested and 

refused to submit to a chemical test. At issue is whether the 

officer had reasonable grounds to believe Armstrong was committing 
a traffic violation or other violation of law when he made the 

stop. 

The right of a police officer to make a warrantless arrest is 

defined in 5 46-6-401 (1) (d) , MCA, which 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 reasonable grounds for an investigatory 

stop of a motor vehicle may be a particularized suspicion, 

comprised of: (1) objective data from which an experienced 

officer can make certain inferences; and (2) a resulting suspicion 

that the occupant of the vehicle is or has been engaged in 

wrongdoing. State v. Gopher (1981), - Mont . , 631 P.2d 293, 

296. 

Here, there is no scintilla of objective data to justify an 

investigatory stop under 5 46-6-401(1)(d), MCA. While a properly 

founded suspicion to stop for investigative detention may ripen 

into probable cause (State v. Lee (1988), 232 Mont. 105, 754 P.2d 

512; State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959), there was 

an admitted absence of properly founded suspicion on the part of 

the arresting officer in this case. Armstrong was merely driving 

down an alleyway late at night when he was detained. Unlike Blake 

(auto swerve) or Gebhardt (asleep behind wheel of mired, running 

vehicle), the officer here had no basis to suspect Armstrong was 

possibly driving under the influence at the time the stop was made. 
One of the determinations the district court must make during 

the hearing authorized under 5 61-8-403, MCA, is whether the 

arresting officer here had reasonable grounds to believe that the 

petitioner was driving while under the influence of alcohol. 

Clearly, the officer here did not. The District Court Is finding 

that reasonable grounds existed is clearly erroneous, and 

Armstrong's petition should have been granted. 

The significance of this decision should be clearly 

understood. A police officer making a legal stop of a vehicle, as 

for a traffic violation, for example, is not prevented by this 

Opinion from further determining after the legal stop that the 

driver is under the influence of alcohol, placing him under arrest, 

and then requesting that the driver submit to a chemical test under 

§ 61-8-402, MCA. 

Reversed. 

We Concur: 

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J Justice 

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