NO. 96-331 IN THESUPREMECOURTOFTHESTATEOFMONTANA 1997

FORRESTM. SANDERS,

Petitioner andAppellant,

v. STATE OFMONTANA, ex rel. DARRELL E. BECKSTROM, Chief, DRIVER IMPROVEMENT BUREAU,

Respondent andRespondent

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, The Honorable Diane G.Bars, Judge Presiding.

COUNSELOFRECORD:

For Appellant: Forrest M. Sanders, Pro Se, Billings, Montana

For Respondent: Honorable Joseph P.Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Montana Alan J. Hall, Deputy City Attorney, Billings, MontanaChief Justice J. A. Turnage delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to State Reporter andWest Publishing Companies. Forrest Sanders appeals the decision of the Thirteenth Judicial District court, Yellowstone county, affirming the suspension of his Montana driver's license pursuant to §61-8-402, MCA. Weaffirm. Werestate the following two issues raised onappeal: 1. Did the District Court err in finding that Officer Longin possessed reasonable grounds to believe that Sanders was driving under the influence of alcohol? 2. Did the District Court properly issue amended findings of fact and conclusions of law to correct anerror in the procedural history of the case? OnOctober 30, 1995, Billings City Police Officer Tony Longin observed avehicle makearight turn without stopping for the red light. Thevehicle over-accelerated when it turned, causing it to fishtail and back end into the center lane of traffic. Officer Longin followed the vehicle andobserved that it slowed at the next intersection, where it madeanother right turn without stopping for the red light. Officer Longin activated his overhead lights and stopped the vehicle. The driver exited and yelled that he had not done

2anything wrong. Officer Longin instructed the driver to return to

his vehicle and then asked for his driver's license, proof of insurance, and registration. The driver produced his license, which identified him as Forrest Sanders. Officer Longin smelled intoxicants on Sanders' breath and noticed that his speech was slurred. WhenOfficer Longin again requested Sanders to produce his proof of insurance and registration, Sanders called him a "punk" and told him to 'If--- Off." Officer Longin asked Sanders to perform field sobriety tests, which Sanders refused. Based onhis experience andthese observations, Officer Longin concluded that Sanders was under the influence of alcohol and arrested him. Sanders was transported to the Yellowstone County Detention Facility. There, Officer Longin read him an implied consent advisory form andrequested him to submit to abreath test. Sanders refused. Accordingly, the Montana Department of Justice suspended Sanders' license pursuant to 561-8-402, MCA. Sanders petitioned the District Court pursuant to §61-8-403, MCA,to review his license suspension, which it affirmed. Sanders appeals. 1. Did the District Court err in finding that Officer Longin possessed reasonable grounds to believe that Sanders was driving under the influence of alcohol? Sanders contends that Officer Longin lacked reasonable grounds to believe that he was driving under the influence of alcohol. More specifically, heclaims that the police lacked probable cause to pull him over.

3We review a district court's denial of a petition for

reinstatement of a driver's license to determine whether the court's findings of fact are clearly erroneous and its conclusions of law are correct. Bauer v. State (1996), 275Mont. 119, 122, 910 P.Zd 886, 888. In reinstatement proceedings, apresumption of correctness attaches to the State's act of revocation. Theburden of proving that the suspension wasimproper lies with the driver. Jess v. State, Dept. of Justice, MVD(1992), 255Mont. 254, 259-60, 841 P.2d 1137, 1140. When the District Court considered Sanders' petition challenging his license suspension pursuant to 561-8-403, MCA,its review waslimited to whether Officer Longin hadreasonable grounds to believe that Sanders wasdriving under the influence of alcohol. See Grinde v. State (1991), 249Mont. 77, 79, 813 P.2d 473, 475. The reasonable grounds provided for in 5561-8-402 and -403, MCA,

are essentially the sametest asparticularized suspicion provided for in §46-5-401, MCA,anddiscussed in State v. Reynolds (1995), 272Mont. 46, 47-50, 899P.2d 540, 541-42. Bauer, 910P.2d at 889. Section 46-5-401, MCA, supports aninvestigative stop if the arresting officer has aparticularized suspicion that anoffense has been committed. Section 46-5-401, MCA,provides: Investigative stop. In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, apeace officer may stop any person or vehicle that is observed in circumstances that create aparticularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit anoffense.

4The issue of whether particularized suspicion exists in order

to justify an investigative stop is fact driven. Revnolds, 899 P.2d at 542-43. If, after making ajustified investigative stop, the police officer reasonably believes the driver to beunder the influence of alcohol, hecanmakeanarrest and require submission to achemical test. Grinde, 813 P.2d at 476. An investigative stop mayripen into probable cause to arrest through the occurrence of facts or incidents after the stop. ~, Jess 841 P.Zd at 1141. TheDistrict Court found that Officer Longin observed Sanders' vehicle traveling onNorth 27th Street. Thevehicle slowed for a red light, but failed to makeacomplete stop before making aright hand turn. While making the turn, Sanders' vehicle fishtailed into another lane of traffic. Sanders madeanother right turn without stopping for the red light. Based onthese observations, Officer Longin concluded that additional investigation was necessary and initiated atraffic stop. After stopping Sanders, Officer Longin smelled intoxicants and observed Sanders' slurred speech. Sanders also exhibited difficulty in finding his driver's license and refused to comply with Officer Longin's instructions to produce proof of insurance and registration. Based on these findings, the District Court concluded that Officer Longin possessed reasonable grounds to believe that Sanders was operating his vehicle while under the influence of alcohol and that his license wasproperly suspended pursuant to §61-8-402(3), MCA.

5TheDistrict Court considered the relevant factors under §61-

8-402, MCA,andproperly denied Sanders' petition for reinstatement of his driver's license. Wehold that the District Court's findings are supported bysubstantial credible evidence andare not clearly erroneous. Sanders argues that the District Court erred when it found that the traffic lights where he failed to stop were red. He submitted testimony at the reinstatement hearing from Scott Spurlock, Billings City Signal Supervisor, concerning the timing and sequence of traffic lights in downtown Billings, in anattempt to prove that it would beimpossible for him to run two consecutive red lights. The court found Spurlock's "confusing testimony" did not confirm Sanders' theory that it wasimpossible for him to run two consecutive red lights because Spurlock did not know at what speed Sanders wastraveling. Witness credibility andthe weight to begiven to their testimony are to bedetermined by the trier of fact, and disputed questions of fact and credibility will not be disturbed onappeal. State v. Ahmed (1996), 924P.2d 679, 686, 53 St.Rep. 804, 808, petition for cert. filed, (U.S. Nov. 25, 1996) (No. 96-6901). Weaffirm the District Court's order denying Sanders' request to permanently enjoin the Montana Department of Justice from suspending his driver's license anddissolving its previous order granting him interim injunctive relief. 2. Did the District Court properly issue amended findings of fact and conclusions of law to correct anerror in the procedural history of the case?

6Following the reinstatement hearing, onMay8, 1996, the court

issued findings andconclusions that summarized the history of the

case: Petitioner, Forrest Sanders, pursuant to 561-8-403, MCA, requests this Court reinstate his driving privileges which were suspended for aperiod of 90days bythe State of Montana

. . onor about October 30, 1995. On May 15, 1996, the court issued amended findings and conclusions that restated the previous findings and conclusions, except that the ninety-day license suspension was amended to six months. Sanders claims that the District Court lacked jurisdiction to amendhis license suspension from ninety days to six months. We

are unpersuaded bySanders' argument. The Montana Department of Justice is responsible for determining the applicable driver's license suspension period in accordance with §61-8-402, MCA. Anotable exception to this rule is explained in Matter of Orman (1986), 224 Mont. 332, 731 P.2d 833. In Orman, apolice officer mistakenly informed adefendant that if hefailed to submit to the offered chemical test pursuant to 561-8-402, MCA,that his license would besuspended for ninety days. The officer was unaware that the defendant had previously declined a similar chemical test in the last five years. We concluded that under the circumstances, the defendant could not have his license suspended for aperiod longer than that explained to him by the officer. m, 731 P.2d at 835. That is not the situation here. Neither party presented evidence at the reinstatement hearing that Officer Longin had informed Sanders that his license would be suspended for aperiod 7

### less than six months. After the hearing, Sanders' attorney signed

astipulation that Sanders hadbeenread animplied consent form notifying himof the six-month suspension. Sanders cannot argue nowthat hewasread anything different. Wehold that the District Court properly amendedits findings of fact andconclusions of lawaffirming the six-month suspension of Sanders' license. Affirmed.

Weconcur:

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