No. 89-584 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN THE MATTER OF THE SUSPENSION 

OF THE DRIVER'S LICENSE OF 

RONALD DWAIN TURNER, 

Petitioner and Appellant, 

-vsSTATE OF MONTANA, 

Respondent. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus County, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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Q 3 Bradley B. Parrish, Lewistown, Montana V3 

$or Respondent : 60 LLJ 

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a e -rr Marc Racicot, Attorney General, Peter Funk, 

W - - &L *- 3 Assistant Attorney General, Helena, Montana; Craig d cx, -- LL xLr) R. Buehler, Fergus County Attorney, Lewistown, 

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.I 2E Submitted: May 10, 1990 

~ecided: August 28, 1990 

Filed: 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

petitioner and appellant, Ronald Dwain Turner, appeals from 

the judgment of the Tenth Judicial District Court, Fergus County, 

which upheld the suspension of his driver's license for refusing 

to submit to a chemical test of his breath as required by 5 61-8- 

402, MCA, the implied consent law. We affirm. 

The sole issue raised on appeal is whether the arresting 

officer had reasonable grounds to believe that Turner was in actual 

physical control of a vehicle while under the influence of alcohol. 

On September 19, 1989, at approximately 4:00 p.m., Ronald 

Dwain Turner drove his 1974 Suzuki motorcycle to the Sportsman 

Lounge in Lewistown. Sometime around 8:00 p.m., after consuming 

an undetermined number of beers, he left the bar. Because the 

motorcyclels clutch did not work, he began pushing the bike in the 

direction of his home. He did not get on the motorcycle or start 

the bike's engine. He did turn its headlight on. 

Turner wheeled the 773-pound motorcycle on city streets for 

about one mile. At a corner where the street crossed the highway, 

he slipped on some loose gravel, tipping the motorcycle over. A 

passing motorist stopped and helped him lift the motorcycle back 

up. By the time police officers arrived, the bike had been 

returned to an upright position and Turner was attempting to push 

it from the middle of the street. 

The officers helped Turner roll the bike off of the street and 
park it. They then arrested him for driving while under the 

influence and took him to the police station. 

At the station, the arresting officer read Turner the implied 

consent law and asked him to submit to a chemical test of his 

breath. Although Turner at first agreed to take the test, the 

officer considered his halfhearted attempts to blow into the 

breathalizer a refusal to comply. He therefore reported Turner to 

the Department of Justice, Driver Improvement Bureau. 

The Driver Improvement Bureau suspended Turner's driver's 

license for 90 days for failure to submit to the chemical test. 

Thereafter, Turner petitioned the District Court pursuant to 5 61- 

8-403, MCA, for a hearing on the matter. At the conclusion of the 

hearing, the ~istrict Court denied the petition, holding that 

Turner had refused to submit to a chemical test of his breath and 

that the arresting officer had reasonable grounds to believe that 

he was in actual physical control of the motorcycle. This appeal 

followed. 

The implied consent law, 5 61-8-402, MCA, provides that an 

individual who has been arrested for driving or being in actual 

physical control of a motor vehicle while under the influence of 

alcohol is deemed to have given his consent to a chemical test for 

the purpose of determining the alcoholic content of his blood. An 

individual who refuses to submit to the test may have his driver's 

license seized and his driving privileges suspended by the 

Department of Justice. The law reads in pertinent part as follows: 
(1) Any person who operates a vehicle upon ways of this 

state open to the public shall be deemed to have given 

consent, subject to the provisions of 61-8-401, to a 

chemical test of his blood, breath, or urine for the 

purpose of determining the alcoholic content of his blood 

if arrested by a peace officer for driving or in actual 

physical control of a vehicle while under the influence 

of alcohol. The test shall be administered at the 

direction of the peace 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 one of the 

aforesaid tests shall be administered. 

(3) If a resident driver under arrest refuses upon the 

request of a peace officer to submit to a chemical test 

designated by the arresting officer as provided in 

subsection (1) of this section, none shall be given, but 

the officer shall, on behalf of the department, 

immediately seize his driver's license. The peace 

officer shall forward the license to the department, 

along with a sworn report that he had reasonable grounds 

to believe the arrested person 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 and that the person had refused to submit to the 

test upon the request of the peace officer. Upon receipt 

of the report, the department shall suspend the license 

for the period provided in subsection (5). 

(5) The following suspension and revocation periods are 

applicable upon refusal to submit to a chemical test: 

(a) upon a first refusal, a suspension of 90 days with 

no provision for a restricted probationary license; 

(b) upon a second or subsequent refusal within 5 years 

of a previous refusal, as determined from the records of 

the department, a revocation of 1 year with no provision 

for a restricted probationary license. 

(7) All such suspensions are subject to review as 

hereinafter provided. 
Section 61-8-402, MCA. 

Section 61-8-403, MCA, governs the judicial review of the 

suspension of driving privileges under the implied consent law. 

The statute provides: 

The department shall immediately notify any person whose 

license of privilege to drive has been suspended or 

revoked, as hereinbefore authorized, in writing and such 

person shall have the right to file a petition within 30 

days thereafter for a hearing in the matter in the 

district court in the county wherein such person resides 

or in the district court in the county in which this 

arrest was made. Such court is hereby vested with 

jurisdiction and it shall be its duty to set the matter 

for hearing upon 10 days' written notice to the county 

attorney of the county wherein the appeal is filed and 

such county attorney shall represent the state, and 

thereupon the court shall take testimony and examine into 

the facts of the case, except that the issue shall be 

limited to whether a peace officer had reasonable qrounds 

to believe the person had been drivins or was in actual 

physical control of a vehicle upon ways of this state 

open to the public, while under the influence of alcohol, 

whether the person was placed under arrest, and whether 

such person refused to submit to the test. The court 

shall thereupon determine whether the petitioner is 

entitled to a license or is subject to suspension as 

heretofore provided. (Emphasis added.) 

Section 61-8-403, MCA. 

A hearing held pursuant to 5 61-8-403, MCA, is a civil 

proceeding in which the District Court determines: 

(1) whether the arresting officer had reasonable srounds 

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. (Emphasis in original.) 

Gebhardt v. State, 238 Mont. 90, 95, 775 P.2d 1261, 1265 (1989). 

Turner concedes that the motorcycle was on a public way, that 

he was intoxicated and that he was placed under arrest. At the 

District Court hearing, he contended that he had not refused to 

submit to a chemical test of his breath, but that contention has 

been abandoned on appeal. Therefore, the only issue before us is 

whether the arresting officer had reasonable grounds to believe 

that Turner was in actual physical control of the motorcycle. 

Turner argues that in this case he was not in I1actual physical 

controlI1 of the motorcycle because he did not straddle the seat of 

the bike and actually drive it by operation of the motor or by 

coasting. Turner's interpretation of actual physical control is 

much too restrictive. An individual need not be actually sitting 

atop the seat of a motorcycle in order to be in actual physical 

control of the vehicle. As long as the individual exercises 

"present bodily restraint, directing influence, domination or 

regulation1' over a motor vehicle, he exerts actual physical control 

over the vehicle. State v. Ruona, 133 Mont. 243, 248, 321 P.2d 

615, 618 (1958). 

Turner clearly had actual physical control over the motorcycle 

on the night in question. He exerted dominion over the motorcycle 

by wheeling it along the city streets of Lewistown for a distance 
of one mile. His attempt to regulate the motorcyclets movements 

by pushing it out of the middle of an intersection was personally 

observed by the arresting officer. We therefore conclude that the 

arresting officer had reasonable grounds to believe that Turner 

was in actual physical control of the motorcycle. 

Affirmed. 

/ 

We Concur: A7 

Chief 

4- 7- 

Justice