NO. 92-124 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1992

PATRICK F. MANEY,

Petitioner and Appellant,-vsSTATE OFMONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill, The Honorable John Warner, Judge presiding.

COUNSELOFRECORD:

For Appellant: Robert C. Melcher, Morrison, Young, Melcher, Brown &Richardson, Havre, Montana For Respondent: Hon. Marc Racicot, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Montana David G. Rice, County Attorney, Patricia Jensen, Deputy, Havre, Montana

Filed: Submitted on Briefs: August 20, 1992 Decided: November 23, 1992

### Justice R. C. McDonoughdelivered the Opinion of the Court.

Petitioner, Patrick F. Maney, appeals from the Twelfth Judicial District Court, Hill County, order denying reinstatement of his driver's license. Weaffirm. Theissues onappeal are: 1. Whether in making a lawful citizen's arrest, a peace officer acting outside the officer's territorial jurisdiction must transfer custody to another officer whohasjurisdiction. 2. Whether the implied consent statutes apply when the arresting officer makes a lawful citizen's arrest outside the officer's territorial jurisdiction. OnOctober 11, 1991, Chinook City Police Officer TimGomkesaw anapproaching vehicle makeasudden lateral movementandflash its lights. Officer Gomkeclocked the vehicle at 31mphin a40mph zone. Asthe vehicle passed the officer, herecognized it asone he had seen at a local bar two hours earlier. He had run a registration check onthe vehicle at that time. 

### Officer Gomke, believing that the driver had a revoked license, followed the vehicle out of the Chinook city limits for about three andone-half miles. Heobserved the vehicle traveling too slowly and swerving from the centerline to the fogline. Officer Gomketestified that hesuspected the driver wasimpaired by alcohol and realized he should get the vehicle off the road immediately. Theofficer activated his emergency lights after he radioed for backup. Thevehicle did not stop promptly, rather it 2

### proceeded for about amile before it pulled over. Thedriver was

identified asPatrick F. Maney. BecauseManey's breath smelled of alcoholic beverage, Officer Gomkerequired himto perform field sobriety maneuvers. Meanwhile, Blaine County Deputy Sheriff ShawnKovacich had arrived on the scene. Hewitnessed Maney's performance of the sobriety maneuvers. Deputy Kovacich andOfficer Gomkeagreed that Maneywasimpaired by alcohol so Officer Gomkearrested Maney. Immediately after the arrest, Officer Gomke radioed to the dispatcher at the Blaine County sheriff's office that hehad aD.U.I. suspect in custody. Officer Gomkethen transported Maney to the sheriff's office in Chinook. Deputy Kovacich followed. At the sheriff's office, Officer Gomke re-administered sobriety tests to Maney while Deputy Kovacich observed. The sobriety tests again showedthat Maneywasalcohol impaired. Maney refused Officer Gomke's request to submit to abreathalyzer test. Officer Gomke,therefore, confiscated Maney's driver's license and the State suspended the license as prescribed by the implied consent statute g61-8-402, MCA. Maneypetitioned the State to restore his license pursuant to §61-8-403, MCA. This appeal follows the District Court's denial of the petition. Our standard of review of adistrict court's conclusions of law is plenary and we determine whether the district court's conclusions are correct. Steer, Inc. v. Dept. of Revenue (1990),

3245 Mont. 470, 474, 803 P.2d 601, 603. Judicial review of the propriety of the suspension of a driver's license is limited to the following: (1) whether the arresting officer had reasonable grounds to believe the following: (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. Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265. In the present case, the District Court found that Officer Gonke had reasonable grounds to stop petitioner's vehicle. The court also found that after Officer Gomke and Deputy Kovacich observed petitioner they had reasonable grounds to believe he was intoxicated. There is no doubt that petitioner was in control of his vehicle on a public way. Further, there is no doubt that he refused to submit to a chemical test. Therefore, if Officer Gomke placed petitioner under lawful arrest and if the implied consent law applies in this circumstance, then the suspension of petitioner's driving privileges must be upheld.

To make a lawful citizen's arrest, must apeace officer acting outside the officer's territorial jurisdiction transfer custody to another officer who has jurisdiction? In Montana, as in most states, a peace officer may lawfully

4make an arrest outside of the officer's jurisdiction if a private

citizen could have made a lawful arrest under the circumstances. State v. McDole (1987), 226 Mont. 169, 172, 734 P.2d 683, 685. In this case, the stop occurred approximately four and one-half miles outside Chinook's city limits. Officer Gomke could, therefore, make a lawful arrest by following the requirements for a citizen's arrest. In 1991 the legislature revised the citizen's arrest statute to read as follows: (1) A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest. (2) A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency. Section 46-6-502, MCA. The validity of the stop and Officer Gomke's authority to make

a citizen's arrest are not contested in the present case. Petitioner contends that his arrest was unlawful because Officer Gomke did not transfer custody of petitioner to another officer. We hold that, under the circumstances, Officer Gomke did not have to transfer custody to effectuate a valid citizen's arrest. Section 46-6-502(2), MCA, requires that a person making a citizen's arrest immediately notify either the nearest available law enforcement agency or peace officer. Officer Gomke chose to notify the nearest law enforcement agency--the Blaine County sheriff's office in Chinook.

5As required by g46-6-502(2), MCA, Officer Gomke radioed the

Blaine County dispatcher immediately after making the arrest. Officer Gomke promptly transported petitioner to the Blaine County sheriff's office for booking. Assoon as Officer Gomke entered the Chinook city limits he was within his jurisdiction and it would make nosense to require Officer Gomketo transfer his prisoner to another officer who also had jurisdiction. Officer Gomke was a peace officer with jurisdiction in the city of Chinook. The Blaine County sheriff's department is in Chinook. Officer Gomke notified the sheriff's department and promptly transported his prisoner to the sheriff's department. He therefore did not need to formally transfer custody to a deputy sheriff to make alawful citizen's arrest. II Do the implied consent statutes apply when the arresting officer made a lawful citizen's arrest outside the officer's territorial jurisdiction? Suspension or revocation of adriver's license pursuant to the implied consent statute is acivil administrative sanction, not a criminal penalty. Petition of Burnham (1985), 217 Mont. 513, 518, 705 P.2d 603, 607 (citing cases). The purpose of suspending a person's driving privileges is not punishment, rather it is to protect the unsuspecting public. In re France (1966), 147 Mont. 283, 288, 411 P.2d 732, 734; Blake v. State (1987), 226 Mont. 193, 197, 735 P.2d 262, 264. The court should not interpret astatute

6so as to defeat its purpose, rather it should achieve the social

purpose for which the statute was enacted. Montana Talc Co. v. Cyprus Mines Corp. (1987), 229 Mont. 491, 498, 748 P.2d 444, 449. This conforms to § l-2-103, MCA, which provides that statutes "are to be liberally construed with a view to effect their objects and to promote justice." The implied consent statute, 5 61-8-402, MCA, states: (1) Any person who operates or is in actual physical control of a vehicle upon ways of this state open to the public shall be deemed to have given consent

. . . to a test of his blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol in his body if arrested bv a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol

. . . . The test shall be administered at the direction of a oeace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol

. . . . The arresting officer may designate which test or tests shall be administered. * * * * (3) If a driver under arrest refuses unon the request of peace officer to submit to a test designated by the zrresting officer as provided in subsection (1) shall be given, but the officer shall, on behalf of"::: department, immediately seize his driver's license. (Emphasis added.) * * * * Section 61-8-402, MCA. Petitioner contends that the implied consent statute requires

an arrest by a peace officer and that a peace officer request the suspect to submit to a chemical test. We agree. Petitioner further contends that Officer Gomke lost his status

7

### asapeace officer whenhemadeacitizen's arrest outside of his

territorial jurisdiction. Wedisagree. Apeace officer is "any person whobyvirtue of the person's office or public employment is vested by law with a duty to maintain public order andmakearrests for offenses while acting within the scopeof the person's authority." Section 46-l-202(17), MCA. Aperson whois employed asalaw enforcement officer falls within this definition even whenoutside the geographical area in which the officer hasjurisdiction. Aperson is apeace officer by virtue of holding the particular job. Alaw enforcement officer is in fact still apeace officer evenwhenmaking anarrest under authority of the citizen's arrest statute. Montana's implied consent statute makesno reference to the jurisdiction of the arresting officer. It merely requires an arrest byapeace officer. OnceOfficer Gomkeleft his jurisdiction hecould makearrests only asaprivate person. Tosustain the suspension of adriver's license, however, it makesnodifference that Officer Gomkeacted under the authority granted to acitizen whenmaking the arrest because hewasapeace officer in fact. Officer Gomke,apeace officer, lawfully arrested petitioner and requested that he take abreathalyzer test. Therefore, the implied consent statute applies in this case. Asrequired by561-8-403, MCA, and case Law, the State proved that: (1) a peace

officer had reasonable grounds to believe petitioner was driving under the influence of alcohol, (2) a peace officer placed petitioner under lawful arrest, (3) petitioner refused a peace officer's request to take an alcohol detecting test. See Matter of Suspension of Driver's License of Blake (1986), 220 Mont. 27, 31, 712 P.2d 1338, 1341. The District Court, therefore, properly sustained the revocation of petitioner's driving privileges. Affirmed.

We Concur: Justice

### November 23,1992 CERTIFICATEOFSERVICE IherebycertifythatthefollowingorderwassentbyUnitedStates mail,prepaid,

tothefollowing named:

RobertC.Melcher Morrison,Young,Melcher,BrownSC Richardson P.O.Box1070 Havre,MT 59501 Hon.MarcRacicot,AttorneyGeneral PatriciaI.Jordan,Assistant 215N.Sanders,Justice

Bldg. Helena,MT59620 DavidG.Rice,CountyAttorney Patricia Jensen, Deputy P.O.Box912 Havre,MT 59501

EDSMITH CLERKOFTHESUPREME COURT