NO. 92-124 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

PATRICK F. MANEY, 

Petitioner and Appellant, 

-vsSTATE OF MONTANA, 

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. 

COUNSEL OF RECORD: 

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. McDonough delivered 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. We affirm. 

The issues on appeal 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 who has jurisdiction. 

2. Whether the implied consent statutes apply when the 

arresting officer makes a lawful citizen's arrest outside the 

officer's territorial jurisdiction. 

On October 11, 1991, Chinook City Police Officer Tim Gomke saw 

an approaching vehicle make a sudden lateral movement and flash its 

lights. Officer Gomke clocked the vehicle at 31 mph in a 40 mph 

zone. As the vehicle passed the officer, he recognized it as one 

he had seen at a local bar two hours earlier. He had run a 

registration check on the 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 and one-half miles. He observed the vehicle traveling 

too slowly and swerving from the centerline to the fogline. 

Officer Gomke testified that he suspected the driver was impaired 

by alcohol and realized he should get the vehicle off the road 

immediately. The officer activated his emergency lights after he 

radioed for backup. The vehicle did not stop promptly, rather it 

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proceeded for about a mile before it pulled over. The driver was 

identified as Patrick F. Maney. 

Because Maney's breath smelled of alcoholic beverage, Officer 

Gomke required him to perform field sobriety maneuvers. Meanwhile, 

Blaine County Deputy Sheriff Shawn Kovacich had arrived on the 

scene. He witnessed Maney's performance of the sobriety maneuvers. 

Deputy Kovacich and Officer Gomke agreed that Maney was impaired by 

alcohol so Officer Gomke arrested Maney. Immediately after the 

arrest, Officer Gomke radioed to the dispatcher at the Blaine 

County sheriff's office that he had a D.U.I. suspect in custody. 

Officer Gomke then 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 showed that Maney was alcohol impaired. Maney 

refused Officer Gomke's request to submit to a breathalyzer test. 

Officer Gomke, therefore, confiscated Maney's driver's license and 

the State suspended the license as prescribed by the implied 

consent statute g 61-8-402, MCA. 

Maney petitioned 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 a district 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), 

3 
245 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 a peace 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 

4 
make 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. 

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As required by g 46-6-502(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. As soon as Officer Gomke entered the 

Chinook city limits he was within his jurisdiction and it would 

make no sense to require Officer Gomke to 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 a lawful 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 a driver's license pursuant to the 

implied consent statute is a civil 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 a statute 

6 
so 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 
as a peace officer when he made a citizen's arrest outside of his 

territorial jurisdiction. We disagree. 

A peace officer is "any person who by virtue of the person's 

office or public employment is vested by law with a duty to 

maintain public order and make arrests for offenses while acting 

within the scope of the person's authority." Section 46-l-202(17), 

MCA. A person who is employed as a law enforcement officer falls 

within this definition even when outside the geographical area in 

which the officer has jurisdiction. A person is a peace officer by 

virtue of holding the particular job. 

A law enforcement officer is in fact still a peace officer 

even when making an arrest under authority of the citizen's arrest 

statute. Montana's implied consent statute makes no reference to 

the jurisdiction of the arresting officer. It merely requires an 

arrest by a peace officer. 

Once Officer Gomke left his jurisdiction he could make arrests 

only as a private person. To sustain the suspension of a driver's 

license, however, it makes no difference that Officer Gomke acted 

under the authority granted to a citizen when making the arrest 

because he was a peace officer in fact. 

Officer Gomke, a peace officer, lawfully arrested petitioner 

and requested that he take a breathalyzer test. Therefore, the 

implied consent statute applies in this case. As required by 5 61- 
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 

CERTIFICATE OF SERVICE 

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

named: 

Robert C. Melcher 

Morrison, Young, Melcher, Brown SC Richardson 

P.O. Box 1070 

Havre, MT 59501 

Hon. Marc Racicot, Attorney General 

Patricia I. Jordan, Assistant 

215 N. Sanders, Justice Bldg. 

Helena, MT 59620 

David G. Rice, County Attorney 

Patricia Jensen, Deputy 

P.O. Box 912 

Havre, MT 59501 

ED SMITH 

CLERK OF THE SUPREME COURT