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, Judgepresiding.

COUNSEL OF RECORD: For Appellant: C 

### cz Q 3 Bradley B. Parrish, Lewistown, Montana V3 $or Respondent: 60 LLJ -J 25 E i2w 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, cn />Q Montana 

## * aZ LLJ

## 2 0 z a, Q

.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 officerhad reasonable groundsto believe thatTurnerwas inactual physical control of avehiclewhile under the influenceof 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 motorcyclelsclutchdid not work,he began pushing thebike in the direction of his home. He did not get on themotorcycle or start the bike's engine. He did turn its headlight on. Turner wheeled the 773-pound motorcycle on city streets for about onemile. At a cornerwhere the street crossed thehighway, 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 officershelped Turnerroll thebike off of the streetandpark 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, Turnerpetitioned the District Courtpursuant to 5 61- 8-403,MCA, for a hearing on thematter. At the conclusionof the hearing, the ~istrictCourt 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 themotorcycle. 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 isdeemed tohave given his consent to a chemical test for the purpose of determining the alcoholic content of his blood. An individualwho refuses to submitto the testmay have his driver's license seized and his driving privileges suspended by the Department of Justice. The law reads inpertinent 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 thealcoholiccontentofhisblood 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 thepeace 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 thepublic 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 thathehad reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle uponways of this state open to the public, while under the influence of alcohol and that theperson had refused to submit to the test upon the request of thepeace 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 90days 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 1yearwith no provision for a restricted probationary license.

(7) All such suspensions are subject to review as hereinafterprovided.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 statuteprovides: The department shall immediately notify anypersonwhose license of privilege to drive has been suspended or revoked,as hereinbefore authorized, inwriting and such person shall have the right to file apetition within 30 days thereafter for a hearing in the matter in the district court in the countywherein suchperson 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 thematter 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 thereuponthecourtshalltaketestimonyand examine into the facts of the case, except that the issue shall be limited towhetherapeace officerhad reasonable qrounds to believe the person had been drivins or was in actual physical control of a vehicle upon ways of this state open tothe public,while under the influenceof 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. (Emphasisadded.) 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 officerhad reasonablesrounds to believe the following: (a)thatthepetitionerhad been driving orwas inactual 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 individualwas 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 themotorcycle 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. Turnerargues that in this casehewasnot in I1actualphysical controlI1of themotorcycle 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' overamotor vehicle, he exerts actual physical control

over the vehicle. State v. Ruona, 133 Mont. 243, 248, 321 P.2d 615, 618 (1958). Turnerclearlyhad actual physical control over themotorcycle

on the night in question. He exerted dominion over themotorcycle by wheeling it along the city streets of Lewistown for a distanceof one mile. His attempt to regulate the motorcycletsmovements by pushing it out of the middle of an intersectionwas 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 themotorcycle. Affirmed. /

We Concur: 

### A7 

# 4- 

# 7-
Chief Justice