No. 86-413
INTHE SUPREME COURT OF THE STATE OF MONTANA 1987

STATE OF MONTANA, CITY OF EUREKA, Plaintiff and Respondent,-VSRONALD RAY McDOLE,
Defendant and Appellant.

APPEAL FROM: DistrictCourtof theNineteenth Judicial District, Inand forthe Countyof Lincoln, TheHonorable RobertM. Holter, Judge presiding.
COUNSEL OF RECORD:
ForAppellant: Scott B. Spencer, Libby, Montana
ForRespondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana George Schunk, Asst. Atty. General, Helena DavidW. Harman, L,ibby, Montana

-- Submittedon Briefs: Dec. 4, 1986 Decided: March 23, 1987

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ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

After a jury trial in the Nineteenth JudicialDistrict, Lincoln County, appellantwas convicted of driving under the influence of alcohol (DUI)and leaving the scene of an accident. We affirm. The issues are: 1. Did the District Court err in admitting evidence obtainedby a city police officer during awarrantless search outside the city limits? 2. Did the District Court err by not instructing the jury on themental state element of the DUI charge? In November 1985,Mr. McDole was driving on the Pinkham Mountain Road near Eureka,Montana. Fourwitnesses testified at the District Court jury trial that Mr. McDole was driving erratically and swerving from side to side on the road. One of thewitnesseswho had observedMr. McDole's driving called the Eurekapolice department to reportMr. McDole as a possible DUI driver. In addition, a fifth witness at the trial testified thatMr. McDole's vehicle hit her vehicle while she

was stopped at a stop sign in the city limits and thenbacked up and left the scene of the accident. This fifth witness testified she then followed Mr. McDole to his residence, recorded his license plate number, and proceeded to the police station to report the accident. A Eureka police officer responded to the possible DUI and leaving the scene of the accident call and drove to Mr. McDole's residence less than a mile outside the Eureka city limits. There, he confirmed that the truck in the driveway fit the dispatcher's description of the vehicle and license plate number involved in the accident and that the truckhood

was still warm. Mr. McDole was arrested, given a breathtest, and identified by the witness whose car had been hit. Mr. McDole's breath sample indicated a .23 alcohol content. Mr. McDole was charged with violation of $ 61-8-401, MCA, driving under the influence, and 5 61-7-105,MCA, duty to give information and render aid. Mr. and Mrs. McDole and two of Mr. McDole's sisters testified on the defendant's behalf at the jury trial. Mr. McDole's defense was that a defective wheel bearing caused his vehicle to swerve,thathe had not been in an accident,and that he had begun drinking only after arriving at home. At the District Court jury trial, Mr. McDole was convicted of DUI and leaving the scene of an accident. He was sentenced to 180 days (with all but 7 days suspended) and fined $500 for the DUI, which was his second offense, and $100 for his failure to stop at an accident scene. Mr. McDole appeals. I Did the District Court err in admitting evidence obtained by a city police officer during a warrantless search outside the city limits? Mr. McDole argues that his arrestwas illegal because it

wasmade outside the Eureka city limitsandwithout an arrest warrant. He believes thatbecause the arrest was illegal all evidence resulting from the arrest, including the breath test results, shouldhave been excluded from evidenceat the lower court level. Mr. McDole maintains that because the City of Eureka could not produce a statute authorizing its police officers tomake arrests within five miles of the city limits in accordance with 5 7-32-4301,MCA, the police officer was without authority to arresthim. We disagree. InMontana a city or townmay authorize itspolice force to make arrests within 5 miles of a city pursuant to 5 7-32-4301, MCA, which provides:The city or town council has power tomake regulations authorizing thepolice of the city or town to make arrests ofpersons chargedwith crime:

(1)within the limitsof the city or town; (2)within 5miles thereof;and (3)along the line of water supply of the city or town. If Eureka had enacted an ordinance authorizing its police officers to make arrests within 5 miles of the Eureka city limits, this issue would not be here. However, Eureka did not enact such an ordinance. There isno question thatMr. McDole's arrestwould have been legal under S 46-6-401 (1)(d)

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A peace officermay arrestapersonwhen: 

# . . . (d) 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 immediatearrest. The hit and run accident in particular, as well as the reported erraticdriving,clearly requiredMr. McDole's immediate arrest in order to prevent his getting in additional accidents and possibly seriously injuring someone. In addition, the preservation of Mr. McDole's blood alcohol content required his immediate arrest. State v. Ellinger (Mont. 1986), 43 St.Rep. 1778, 1780, P.2d -I 

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# . However, Mr. McDole's arrest was not made within Eureka so we cannot rely on S 46-6-401(1)(d), MCA, but can only use it as guidance. It is a well established general rule that a law enforcement officer acting outside his jurisdiction without a warrant may not make arrests. An exception to this rule is the arrest made under circumstances which would authorize aprivate citizen to make the arrest. See generally: Annot., Validity, In State Criminal Trial, ofArrest Without Warrant by Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R. 4th 328 (1984); 5 Arn.Jur.2d Arrests $ 50, (1962, Supplement 1986); and Restatement (Second) of Torts $ 121 (1965, Supplement 1975, 1984). In Montana, a private citizenmay make an arrest pursuant to $ 46-6-502,MCA,which provides:

A private personmay arrest anotherwhen: (1)he believes on reasonable grounds that an offense is being committed or attempted in his presence; (2)a felonyhas in factbeen committed and he believes on reasonable grounds that the person arrested has committed it; or (3)he isamerchant, as defined in 30-11-301, and has probable cause to believe the other is shoplifting in themerchant's store. By enacting 5 7-32-4301,MCA, (allowinga town to authorize a police force to make arrests within 5 miles of town), $ 46-6-502, MCA, (authorizing private citizens to make arrests), and $ 46-6-411, MCA, (authorizing a peace officer from another statewho enters this state in close pursuit to make an arrest), it is clearMontana no longer adheres to the old common law rule strictly prohibiting arrests outside an officer's jurisdiction. A police officer outside his jurisdiction has not lost his characteristicsofbeing a citizen and has all the arrest capabilities that a private citizenhas. Thus, we hold that if an arrest by a private citizenwould be lawful under the existing circumstances, the arrest by an officer out of his jurisdictionwould be lawful. In this case, the record discloses that an individual called the Eureka police department reportingMr. McDole as a possible DUI suspect at 4:41 p.m. A police officer wasdispatched to intercept Mr. McDole. Then a second person involved in an accident with Mr. McDole went to the police station at 4:55 p.m. and reported the accident, reported Mr. McDole's leaving the scene of that accident, and reported where Mr. McDole was parked. The police officer previously dispatched was re-routed to the address .8 of amile outside the Eureka city limits and arrived at Mr. McDole's residence at 5:05 p.m. He confirmed that the truck parked there fit the dispatcher's identification of the vehicle and license number involved in the earlier incidents and that the truck hood was warm. The officer testified that Mr. McDole came out of his residence,walked up to the officerwith his hands in the air, appeared intoxicated,and said: "Takeme! Take me!" The officer then arrested Mr. McDole for leaving the

scene of the accident, took him to the station at 5:08 p.m., read him the DUI forms, gave him a breath test, filled out the requisite arrest forms,and had the woman involved in the hit and run identifyMr. McDole. With that background, there is no question that both the private citizenwho observed Mr. McDole's erratic driving and the private citizen involved in the accidentwith Mr. McDole could have arrested Mr. McDole pursuant to Montana's citizen arrest statute. In this case, the trained Eureka police officer, armed with the citizen reports and his own observations, also had the authority to make the arrest in his capacity as aprivate citizen. The Eureka police officer confirmed the citizen reports by positively identifying the truck, with its warm hood, involved in the erratic driving and accident. Perhaps the strongest confirmation came when Mr. McDole stepped out of his house in an apparently intoxicated condition, held his hands out, and said: "Take me! Take me!" This statement confirmed the likelihood that Mr. McDole was the driver ofthe truckwhen itwas involved in the hit and run and erratic driving. We conclude that the Eureka police officer, acting in his capacityas a private citizen,made avalid arrest ofMr. McDole. This result is in harmony with Montana's criminal statutes which intend to limit injury of person or property. If the police officer had not arrested Mr. McDole, it is quite possible that he might have commenced driving again in his intoxicated condition and critically injured himself or others. Accordingly, Mr. McDole's arrest was legal and all the evidence from that arrestwas admissible.

I1 Did the District Court err by not instructing the jury

on the mental state element of the DUI charge? Mr. McDole maintains that $ 45-2-103(1)

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one of three mental states to be proven for all but absolute liability offenses. Section 45-2-104, MCA, provides that absolute liability cases are limited to offenses subject to finesnot exceeding $500. A person convicted of a DUI canbe fined more than $500 and sentenced to jail time. Therefore, Mr. McDole maintains that DUI is not an absolute liability offense and thus requires a mental state jury instruction. We disagree. Title 45 covers crimes generally and the mental state requirement found in $ 45-2-101, MCA, applies to those crimes. The DUI statute, $ 61-8-401, MCA, falls under the motor vehicle section of the Montana Code Annotated. If a person is under the influence of alcohol or drugs and in physical control of a vehicle on the ways ofMontana open to the public, then that person can be found guilty of driving under the influence. Section 61-8-401,MCA. As a leading DUI expert states:Drunk driving legislation is intended to prohibit drunken operation "under any and all circumstances." The act ofdriving avehicle under the influence of alcohol or drugs, or both, is "itself the crime." The state is not required to show "any particularmental state" except that the driverwas "under such influence." If intent were an element of the offense, situations could arise in which defendants could notbe convicted under the statute because they were too intoxicated to form the requisite intent. The paradoxical and absurd result would be that the more intoxicated the driver became the better his chances of avoiding liabilityunder the statute. Erwin, Defense 

### - of Drunk Driving Cases $ 1.05 (1986). Put another way, the District Court Judge in this case stated: "Well,itdoesn'tmake any differencewhatyour state ofmind is, you just don't operate cars on the highway under the influence." We hold that the District Court did not err by not instructing the jury on the mental state element of Mr. McDole's DUI charge. Driving under the influence is an absolute liability offense not requiring the proof of a mental stateby the State. Affirmed.

We Concur: --F