No. 86-413 

IN THE 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: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Scott B. Spencer, Libby, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Atty. General, Helena 

David W. Harman, L,ibby, Montana 

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Submitted on Briefs: Dec. 4, 1986 

Decided: March 23, 1987 

4' 

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Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

After a jury trial in the Nineteenth Judicial District, 

Lincoln County, appellant was 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 

obtained by a city police officer during a warrantless search 

outside the city limits? 

2. Did the District Court err by not instructing the 

jury on the mental state element of the DUI charge? 

In November 1985, Mr. McDole was driving on the Pinkham 

Mountain Road near Eureka, Montana. Four witnesses testified 

at the District Court jury trial that Mr. McDole was driving 

erratically and swerving from side to side on the road. One 

of the witnesses who had observed Mr. McDole's driving called 

the Eureka police department to report Mr. McDole as a possible DUI driver. In addition, a fifth witness at the trial 

testified that Mr. McDole's vehicle hit her vehicle while she 

was stopped at a stop sign in the city limits and then backed 

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 truck hood 

was still warm. Mr. McDole was arrested, given a breath 
test, 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, that he 

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 arrest was illegal because it 

was made outside the Eureka city limits and without an arrest 

warrant. He believes that because the arrest was illegal all 

evidence resulting from the arrest, including the breath test 

results, should have been excluded from evidence at the lower 

court level. Mr. McDole maintains that because the City of 

Eureka could not produce a statute authorizing its police 

officers to make arrests within five miles of the city limits 

in accordance with 5 7-32-4301, MCA, the police officer was 

without authority to arrest him. We disagree. 

In Montana a city or town may authorize its police 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 to make regulations authorizing the police of the city or town to 

make arrests of persons charged with crime: 

(1) within the limits of the city or town; 

(2) within 5 miles 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 is no question that Mr. McDole's arrest would have 

been legal under S 46-6-401 (1) (d) , MCA, if that arrest had 

been made within the Eureka city limits. Section 

46-6-401 (1) (d) , MCA, provides: 

A peace officer may arrest a person when: . . . (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 immediate arrest. 

The hit and run accident in particular, as well as the reported erratic driving, clearly required Mr. 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 - . 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 a 
private citizen to make the arrest. See generally: Annot., 

Validity, In State Criminal Trial, of Arrest 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 citizen may make an arrest pursuant to $ 46-6-502, MCA, which provides: 

A private person may arrest another when: 

(1) he believes on reasonable grounds that an 

offense is being committed or attempted in his 

presence; 

(2) a felony has in fact been committed and he 

believes on reasonable grounds that the person 

arrested has committed it; or 

(3) he is a merchant, as defined in 30-11-301, 

and has probable cause to believe the other is 

shoplifting in the merchant's store. 

By enacting 5 7-32-4301, MCA, (allowing a 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 state who enters this state in close pursuit to 

make an arrest), it is clear Montana 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 characteristics of being a citizen and has all the arrest 

capabilities that a private citizen has. Thus, we hold that 

if an arrest by a private citizen would be lawful under the 

existing circumstances, the arrest by an officer out of his 

jurisdiction would be lawful. 

In this case, the record discloses that an individual 

called the Eureka police department reporting Mr. McDole as a 

possible DUI suspect at 4:41 p.m. A police officer was 
dispatched 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 a mile 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 officer with his hands 

in the air, appeared intoxicated, and said: "Take me! 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 identify Mr. McDole. 

With that background, there is no question that both the 

private citizen who observed Mr. McDole's erratic driving and 

the private citizen involved in the accident with 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 a private 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 of 
the truck when it was involved in the hit and run and erratic 

driving. 

We conclude that the Eureka police officer, acting in 

his capacity as a private citizen, made a valid arrest of Mr. 

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 arrest was 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) , MCA, requires 

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 

fines not exceeding $500. A person convicted of a DUI can be 

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 of Montana 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 of driving a vehicle under the influence of alcohol or drugs, or both, is "itself the 

crime." The state is not required to show "any 

particular mental state" except that the driver was 

"under such influence." If intent were an element 

of the offense, situations could arise in which 

defendants could not be 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 

liability under the statute. 

Erwin, Defense - of Drunk Driving Cases $ 1.05 (1986). Put 

another way, the District Court Judge in this case stated: 

"Well, it doesn't make any difference what your state of mind 

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 state by the State. 

Affirmed. 

We Concur: --F