No. 95-382

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

C.A. SEYFERTH,

Petitioner and Appellant,

v.

STATE OF MONTANA, DEPARTMENT OF

JUSTICE, MOTOR VEHICLE DIVISION,

and CITY OF BILLINGS,

Respondents and Respondents

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Gary R. Thomas; Thomas Law Office, Red Lodge,

Montana

For Respondents:

Joseph P. Mazurek, Attorney General,

Brenda Nordlund, Ass't Attorney General,

Helena, Montana

Alan Hall, Deputy Billings City Attorney,

Billings, Montana

Fil

CLERK OF SUPRUIIE COURT

S TATE O F MONTANA

Submitted on Briefs: May 16, 1996

Decided: July 29, 1996
Justice Karla M. Gray delivered the Opinion of the Court.

C.A. Seyferth (Seyferth) appeals from orders of the Thirteenth

Judicial District Court, Yellowstone County, denying his petition

for reinstatement of his driving privileges and denying his motion

to set aside that denial and reopen the proceedings. We affirm.

We restate the issues on appeal as follows:

1 . Did the District Court violate Seyferth's right to due

process of law by issuing its order denying his petition for

reinstatement of his driving privileges, without notice, nearly one

year after the hearing on the petition was recessed?

2 . Is the District Court's finding that the arresting officer

had reasonable grounds to believe that Seyferth was driving under

the influence of alcohol clearly erroneous?

3 . Did the field sobriety tests violate Seyferth's right to

be free from unreasonable searches and seizures and his right to

privacy?

Seyferth attended a Christmas party at Jakes, a restaurant and

bar in Billings, Montana, on the evening of December 17, 1993.

Upon leaving Jakes, Seyferth noticed three police cars stopped

nearby with their red and blue lights flashing. A traffic stop was

in progress at that location, and Officers Keavin Unruh (Unruh) and

Ladd Paulson (Paulson) were assisting a third unidentified officer.

After Seyferth drove by the officers, Unruh followed him for

several blocks and then pulled him over. Paulson assisted Unruh in

the stop.
Unruh asked Seyferth for the usual driving-related documents

and told Seyferth that his vehicle's headlights were not on. Unruh

noticed that Seyferth smelled of alcohol and that his speech was

slurred. After administering field sobriety tests, Unruh arrested

Seyferth for driving under the influence of alcohol (DUI), in

violation of 5 61-8-401, MCA, and took him to the detention

facility in Billings. At the detention facility, Unruh advised

Seyferth of the implied consent statute and asked him to submit to

a breathalyzer test to determine his blood-alcohol content.

Seyferth replied that he wanted an attorney and declined to take

the test. As a result of Seyferth's refusal to submit to the test,

Unruh seized Seyferth's driver's license. The State of Montana,

Department of Justice, Motor Vehicle Division (State) subsequently

sent Seyferth a letter informing him that his driving privileges

were revoked for one year pursuant to 5 61-e-402(5), MCA, and that

he could petition for reinstatement.

Seyferth petitioned the District Court for reinstatement of

his driving privileges and the court reinstated his privileges

during the pendency of the proceedings on his petition. At the

hearing on his petition in June of 1994, Seyferth moved for a

continuance to allow him time to subpoena a witness he had located

the night before the hearing and who had agreed to appear and

testify. According to Seyferth, the witness would contradict the

officers' testimony with regard to whether his vehicle's headlights

were on. The State objected on the basis that the proceedings had

been initiated in December of 1993, and Seyferth had already

3
obtained several continuances to prepare for the hearing. The

District Court noted that Seyferth could have contacted this

alleged witness much earlier and denied the motion to continue.

Seyferth, Unruh and Paulson testified at the hearing and the

State played the videotaped interview of Seyferth at the detention

facility during which he declined to submit to the breathalyzer

test. At the conclusion of the hearing, the District Court

recessed the proceedings; Seyferth was to locate, and presumably

subpoena, the alleged witness who would testify that his vehicle's

headlights were on and the State was to aid Seyferth in attempting

to determine the identity of the third officer at the traffic stop

Seyferth passed before being stopped by Unruh. The court stated

that the parties were to report back within two weeks regarding the

status of the additional witnesses and "whether we need to

reconvene or whether it will be submitted on the evidence that

we've taken so far."

Nearly a year passed, and neither Seyferth nor the State

contacted the District Court. The District Court deemed the matter

submitted and denied Seyferth's petition in May of 1995.

Thereafter, Seyferth moved the court to set aside its order denying

his petition and reopen the proceedings. The District Court

concluded that there was no good cause to reopen the proceedings

and denied Seyferth's motion. Seyferth appeals.

1 . Did the District Court violate Seyferth's right to

due process of law by issuing its order denying his

petition for reinstatement of his driving privileges,

without notice, nearly one year after the hearing on the

petition was recessed?

4
Once a driver's license has been issued, the licensee has an

important interest in retaining it; therefore, a license cannot be

suspended or revoked without the procedural due process guaranteed

by the Fourteenth Amendment. $T?e- State ex rel. Majerus v. Carter

(1984)) 214 Mont. 272, 276, 693 P.Zd 501, 503 (quoting Bell v.

Burson (19711, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90). The

United States Supreme Court has stated that, in order to satisfy

due process requirements in this context, states must afford notice

and an opportunity for a hearing. See Bell -f 402 U.S. at 542

(citations omitted). A hearing subsequent to revocation or

suspension of a driver's license satisfies due process requirements

so long as the procedures used prior to revocation or suspension

provide a reasonably reliable basis for concluding that facts

justify deprivation of a driver's property interest in his or her

license. See Mackey v. Montrym (19781, 443 U.S. 1, 13, 99 S.Ct.

2612, 2618, 61 L.Ed.2d 321, 331.

Seyferth does not challenge Montana's statutory procedures for

revoking or suspending a person's driver's license. He argues

that, under the facts of this case, he was entitled to notice prior

to the District Court's issuance of an order denying his petition

for reinstatement of his driving privileges nearly one year after

his hearing was recessed. Seyferth relies on Memphis Light, Gas &

Water Div. v. Craft (1977), 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d

30, in support of~his argument that the court's failure to provide

such notice here violated his due process rights.

5
In Memphis Light, Willie and Mary Craft (the crafts) were

receiving two utility bills from their municipal utility provider

instead of one. Memphis Liqht, 436 U.S. at 4. They paid the

undisputed portion of the bills and repeatedly attempted to resolve

the double billing problem with their utility provider, Memphis

Light, Gas and Water (MLG&W); they received neither a satisfactory

explanation for the double billing nor suggestions for further

recourse within MLG&W. Memphis Liqht, 436 U.S. at 5. The Crafts'

utility service was terminated numerous times due to nonpayment and

the Crafts and other customers filed suit contending that they had

a property interest in their utility service while disputed bills

remained unpaid and, therefore, were entitled to due process prior

to termination of service. Memphis Liqht, 436 U.S. at 5.

The United States Supreme court reviewed Tennessee law

governing utilities and concluded that, since utility providers

could terminate service only "for cause," the Crafts had a

sufficient property interest to implicate Fourteenth Amendment due

process rights. Memphis Liqht, 436 U.S. at 11-12. The Supreme

Court reiterated the fundamental requirements of due process that

notice be given to interested parties of the pendency of an action

and that the parties be provided an opportunity to present

objections. Memphis Lisht, 436 U.S. at 13 (citation omitted).

"The purpose of notice under the Due Process Clause is to apprise

the affected individual of, and permit adequate preparation for, an

impending 'hearing.'" Memphis Liqht, 436 U.S. at 14 (citation

omitted). In reviewing MLG&W's "pay or be terminated" notice, the

6
Supreme Court held that MLG&W violated the Crafts' due process

rights because it did not provide them with "notice reasonably

calculated to apprise [them] of the availability of an

administrative procedure to consider their complaint of erroneous

billing. _I' Memphis Lisht, 436 U.S. at 22.

Here, the State informed Seyferth by letter that his driving

privileges were revoked for one year and that he had thirty days to

petition for reinstatement in the District Court. Unlike the

Crafts in Memphis Liqht, Seyferth was provided with notice which

apprised him of, and permitted adequate preparation for, a

proceeding to challenge the revocation and seek reinstatement of

his driving privileges. & Memphis Liqht, 436 U.S. at 14. Thus,

the State's letter to Seyferth met the only notice requirement set

forth by the Supreme Court in Memphis Licrht and the case provides

no support for Seyferth's argument.

Seyferth's petition was originally scheduled for hearing on

February 25, 1994. The District Court granted Seyferth three

continuances and the petition finally was heard on June 22, 1994.

At the hearing, Seyferth moved for another continuance; the court

denied the motion. At the conclusion of the hearing, however, the

court gave Seyferth an additional two weeks to procure witnesses.

Upon recessing the hearing, the District Court expressly

directed the attorneys for Seyferth and the State to report back to

it within two weeks regarding "whether we need to reconvene or

whether it will be submitted on the evidence that we've taken so

far." Neither Seyferth nor the State reported back to the court

7
within the two-week period and, indeed, the District Court waited

nearly a year before issuing its order. Seyferth cites to no

authority, and we have found none, under which a party who has had

a hearing and been directed to inform the court within two weeks

whether reconvening the hearing is necessary, but who fails to

contact the court at all, is entitled to further notice prior to

court action.

The record indicates that Seyferth had ample opportunity to

present his case. His failure to do so does not entitle him to yet

more notice and yet another opportunity; nor does it translate into

a due process violation by the District Court. Under these facts,

we hold that the District Court did not violate Seyferth's due

process rights when it issued its order denying his petition for

reinstatement of his driving privileges, without notice, nearly one

year after the hearing on the petition was recessed.

2 . Is the District Court's finding that Unruh had

reasonable grounds to believe that Seyferth was driving

under the influence of alcohol clearly erroneous?

The District court I s review of Seyferth's petition for

reinstatement of his driving privileges was statutorily limited to

three issues: (1) whether Unruh had reasonable grounds to believe

that Seyferth had been driving or was in actual physical control of

a vehicle upon ways of this state open to the public while under

the influence of alcohol, drugs or a combination of the two; (2)

whether Seyferth was placed under arrest; and (3) whether Seyferth

refused to submit to a blood, breath or urine test, as required by

s: 61-8-402, MCA. See § 61-a-403(4), MCA. In denying Seyferth's

8
petition, the District Court found that Unruh had reasonable

grounds to believe Seyferth was driving under the influence of

alcohol, that Seyferth was arrested and that he refused to submit

to the breathalyzer test. Seyferth challenges the "reasonable

grounds" finding. We review the District Court's finding to

determine whether it is clearly erroneous. & Anderson v. State

(Mont. 1996), 912 P.2d 212, 214, 53 St.Rep. 125, 126.

A finding of "reasonable grounds" to make an investigative

stop, as required by 5 61-8-403(4) (a) (i), MCA, is the equivalent of

a finding of "particularized suspicion" to make an investigative

stop under 5 46-5-401, MCA. Anderson, 912 P.2d at 214 (citation

omitted). Section 46-5-401, MCA, provides:

In order to obtain or verify an account of the person's

presence or conduct or to determine whether to arrest the

person, a peace officer may stop any person or vehicle

that is observed in circus tances that create a

particularized suspicion that the person or occupant of

the vehicle has committed, is committing, or is about to

commit an offense.

(Emphasis added.) Because the statute requires some objective

manifestation that a person is engaged in criminal activity before

a stop can be made, we adopted a two-part test to determine whether

an officer had sufficient cause to stop a person. Anderson, 912

P.2d at 214 (citing State v. Gopher (1981), 193 Mont. 189, 631 P.2d

293). First, the State must show objective data from which an

experienced officer can make certain inferences. Second, the State

must demonstrate a resulting suspicion that the occupant of a

certain vehicle is or has been engaged in wrongdoing or was a

witness to criminal activity. Anderson, 912 P.2d at 214. Whether

9
a particularized suspicion exists is a question of fact which

depends on the totality of the circumstances. Anderson, 912 P.2d

at 214 (citing State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d

540, 542-43).

Here, both Unruh and Paulson testified that, at approximately

11:30 p.m., Seyferth was driving his vehicle without the headlights

on; they attempted to get his attention by shining and flashing

their flashlights at him as he drove by them. Unruh testified

that, despite their efforts, Seyferth drove by and looked at them

with "unseeing" eyes "as if he didn't realize what we were doing."

On these bases, Unruh suspected that Seyferth was driving under the

influence and immediately followed him. Unruh testified that

Seyferth stopped abruptly, almost running a red light, then turned

a corner to pull over and ran over the curb prior to stopping.

Unruh testified to the extensive and continuing training he

has had for detecting when a person is driving under the influence

of alcohol or drugs. Moreover, he has made "several hundred" DUI

arrests and assisted in "hundreds" of others. According to Unruh,

driving without headlights after dark is one sign indicating that

a person is driving under the influence. Erratic driving, such as

nearly running a red light, stopping abruptly and driving over a

curb, is another sign that a person may be driving under the

influence.

Unruh is an experienced officer who has participated in

hundreds of DUI arrests. He observed Seyferth driving a vehicle

,after dark without its headlights on, noted "unseeing" eyes and

10
observed erratic driving. Paulson's testimony corroborated the

existence of objective data from which Unruh could infer that

Seyferth was driving under the influence. We conclude that, under

the totality of the circumstances, the evidence of record is

sufficient to support a particularized suspicion that Seyferth was

driving under the influence of alcohol.

Seyferth relies on his own testimony that his vehicle's

headlights were on to support his contention that a particularized

suspicion did not exist justifying Unruh's stop. Our standard of

review, however, is not whether evidence supports a finding

different from that made by the district court. Our standard is

whether the court's finding is clearly erroneous. Anderson, 912

P.2d at 214. Where, as here, a district court is the trier of

fact, it is within the province of the district court to determine

witness credibility and the weight to be given evidence. See

Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357

(citing Matter of Estate of Murnion (19841, 212 Mont. 107, 113, 686

P.Zd 893, 896). The District Court apparently found the officers'

testimony more credible than Seyferth's in this case and afforded

that testimony more weight. We will not substitute our judgment

for that of the District Court. See Keebler, 807 P.2d at 1358.

Seyferth also relies on Reynolds in support of his argument

that Unruh did not have a particularized suspicion justifying the

stop. Revnolds, however, is factually distinguishable.

In Reynolds, a deputy sheriff observed the defendant driving

down a dead-end street "'bordering on traveling too fast' for the

11
conditions." Revnolds, 899 P.2d at 542. The deputy drove to where

he thought the defendant would end up, eventually meeting the

defendant at an intersection where the defendant had the right-ofway. The defendant waited approximately seven to ten seconds

befo~re proceeding through the intersection. Reynolds, 899 P.2d at

542. Immediately thereafter, the deputy pulled the defendant over.

Reynolds, 899 P.2d at 542.

We noted on appeal that the deputy testified only that the

defendant had been driving "'bordering on traveling too fast."'

After the initial "possible" traffic violation, the deputy did not

observe any erratic driving or traffic violations. Revnolds, 899

P.2d at 543. On the record before us, we determined that the

defendant did not exhibit patterns consistent with a person driving

under the influence of alcohol. We ultimately concluded that,

based on the totality of the circumstances, the possible traffic

violation on a stand-alone basis was not sufficient to support a

particularized suspicion that the defendant had been engaged in

criminal conduct. Revnolds, 899 P.2d at 543.

Here, Unruh and Paulson initially observed that Seyferth was

driving his vehicle without the headlights on after dark in

violation of § 61-g-201, MCA. Seyferth did not respond to the

officers' attempt to alert him to that fact by shining and flashing

their flashlights at him. Thereafter, Unruh followed Seyferth and

observed his erratic driving in nearly running a red light,

stopping abruptly and driving up on the curb while pulling over.

12
Thus, in this case an actual traffic violation and other objective

data existed which supports a particularized suspicion.

Having determined that, under the totality of the

circumstances, the evidence of record is sufficient to support a

particularized suspicion, we hold that the District Court's finding

that Unruh had reasonable grounds to believe that Seyferth was

driving under the influence of alcohol is supported by substantial

credible evidence and not otherwise clearly erroneous.

3. Did the field sobriety tests violate Seyferth's right

to be free from unreasonable searches and seizures and

his right to privacy?

On appeal, Seyferth raises numerous constitutional issues

relating to the field sobriety tests, including that the tests

violated his right to be free from unreasonable searches and

seizures, guaranteed by both the Fourth Amendment to the United

States Constitution and Article II, Section 11 of the Montana

Constitution, and his right to privacy, guaranteed by Article II,

Section 10 of the Montana Constitution. Seyferth did not raise

these issues regarding the field sobriety tests in the District

court.

Seyferth concedes the well-settled principle that we will not

address issues raised for the first time on appeal. See Insured

Titles, Inc. v. McDonald (Mont. 1996), 911 P.Zd 209, 213, 53

St.Rep. 61, 64 (citation omitted). He argues, however, that we

should invoke our discretionary power of common law plain error

review because these issues affect his substantial rights.

13
We recently clarified the common law plain error rule in State

v. Finley (Mont. 1996), 915 P.2d 208, 53 St.Rep. 310. The power of

plain error review

is inherent in the appellate process itself. Appellate

courts have the inherent duty to interpret the

constitution and to protect individual rights set forth

in the constitution and necessarily have the correlative

authority to invoke the plain error doctrine in order to

carry out those duties.

Finlev, 915 P.2d at 213 (citations omitted). We held that we would

review claimed errors that implicate a criminal defendant's,

fundamental constitutional rights under the plain error rule only

sparingly and only where failing to do so might result in a

manifest miscarriage of justice, leave the question of the

fundamental fairness of the proceedings unsettled, or compromise

the integrity of the judicial process. Finley, 915 P.2d at 215.

We conclude that refusing to review Seyferth's challenges to

the field sobriety tests in this civil reinstatement proceeding

will not result in a manifest miscarriage of justice, leave the

question of the fundamental fairness of the proceedings unsettled,

or compromise the integrity of the judicial process. See Finlev,

915 P.2d at 215. Accordingly, we decline to address the

constitutional issues relating to the field sobriety tests which

Seyferth raises for the first time on appeal.

Affirmed.
we concur:

15