Hulse v. State, Dept. of Justice, Motor Vehicle Div.

Page 75

961 P.2d 75

1998 MT 108

Mary Iris HULSE, Petitioner and Appellant, v. STATE of Montana, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Respondent and Respondent.

No. 96-541.

Supreme Court of Montana.

Heard Nov. 18, 1997.

Submitted Nov. 18, 1997.

Decided May 5, 1998.

Gary R. Thomas, Thomas Law Office, Red Lodge, for Petitioner and Appellant.

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena; Douglas Howard, Columbus Town Attorney, Columbus, for Respondent and Respondent.

NELSON, Justice.

¶1 Defendant Mary Hulse (Hulse) appeals from the Findings of Fact, Conclusions of Law and Order of the Thirteenth Judicial District Court, Stillwater County, denying her petition to reinstate her driving privileges after those were suspended for her refusal to take a breath test pursuant to § 61-8-402, MCA, as well as the court's denial of her motion in limine to exclude evidence concerning the results of field sobriety tests conducted prior to her arrest for driving while under the influence of alcohol. We affirm.

¶2 The sole issue raised on appeal is whether the District Court erred when it denied Hulse's petition to reinstate her driver's license.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On March 23, 1996, at 7:30 p.m., Officer Patrick Kennedy was patrolling eastbound on Pike Avenue, one of the main streets in Columbus, Montana, when he observed Hulse drive away from the New Atlas Bar. Although it was dark outside, Hulse proceeded westbound on Pike Avenue without her vehicle headlights on. Hulse and Officer Kennedy passed each other about one and one-half blocks later, and Hulse continued driving without her headlights on. In response, Officer Kennedy activated his overhead lights, made a U-turn and drove behind Hulse for approximately two blocks, but Hulse did not stop. Instead Hulse turned onto another street and Officer Kennedy activated his siren. Hulse drove for another one-half block before she turned into the driveway of her friend, a passenger in Hulse's vehicle. Officer Kennedy pulled in behind Hulse and positioned his vehicle to block the driveway.

¶4 Officer Kennedy approached Hulse, identified himself, and informed her he had stopped her because she was driving without her headlights on after dark. Hulse responded that she did have her headlights on. Officer Kennedy asked her to produce her driver's license, registration and proof of insurance. Hulse produced her registration and after several attempts produced her proof of insurance. When Officer Kennedy again asked her for her driver's license, Hulse became agitated. After Officer Kennedy requested her driver's license for the third time, Hulse produced it.

¶5 During this time, Officer Kennedy smelled the odor of alcohol on Hulse's breath and asked her if she had been drinking. Hulse first responded in the negative but later stated she drank one eight-ounce glass of beer. Officer Kennedy asked Hulse to get out of her car and step down to the sidewalk to perform some field sobriety tests. At this time, Officer Kennedy noticed that Hulse's eyes were bloodshot and that she had difficulty walking. He administered three field sobriety tests (the Horizontal Gaze Nystagmus(HGN), the one-legged stand, and the walk-and-turn) and Hulse performed poorly on the tests. After completing the field sobriety tests, Officer Kennedy arrested Hulse for driving under the influence of alcohol (DUI), handcuffed her, and helped her into the back seat of the patrol car.

¶6 Officer Kennedy transported Hulse to the sheriff's office and read her Montana's Implied Consent Law. Officer Kennedy asked Hulse to submit to a breath test, but Hulse refused. As a result, pursuant to § 61-8-402, MCA(1995), Officer Kennedy seized Hulse's driver's license. On March 26, 1996, pursuant to § 61-8-403, MCA (1995), Hulse filed a petition in the Thirteenth Judicial District Court, Stillwater County, asking the court to review the suspension of her driver's license and requesting the court reinstate her driver's license until the court held her license reinstatement hearing. The District Court entered an order temporarily reinstating Hulse's driver's license and set a hearing date for May 20, 1996.

¶7 On May 15, 1996, Hulse filed a motion in limine to exclude Officer Kennedy's testimony concerning the results of the field sobriety tests Hulse performed prior to her arrest, including the Horizontal Gaze Nystagmus(HGN) test. Specifically, Hulse sought to exclude evidence of the field sobriety tests as constituting an illegal search and the HGN test for failing to meet the Daubert criteria for admission of scientific evidence. On May 17, 1996, the State filed an objection to Hulse's motion in limine, arguing that evidence of these field sobriety tests was admissible under Montana law. The District Court did not issue a written order on Hulse's motion in limine. However, on May 20, 1996, at the beginning of the license reinstatement hearing, the court ruled that "[f]or the record, the Motions in Limine are absolutely denied. They are completely inappropriate for a hearing of this nature[.]"

¶8 Consequently, in addition to testifying about the facts and circumstances surrounding his initial stop and subsequent arrest of Hulse, Officer Kennedy testified as to his administration and evaluation of the field sobriety tests Hulse performed prior to her arrest for driving while under the influence of alcohol. He testified that after completing the basic training course at the Montana Law Enforcement Academy where he received 40 hours of training in the administration and evaluation of the HGN, the one-legged stand, and the walk-and-turn field sobriety tests, he began working as a patrolman for the town of Columbus, Montana, on July 5, 1995. Furthermore, Officer Kennedy described each test and explained in detail his administration of these tests on Hulse as well as his evaluation that she performed poorly on each of the three field sobriety tests.

¶9 On May 29, 1996, after considering the hearing testimony, the District Court entered its findings of fact, conclusions of law and order denying Hulse's petition to reinstate her driver's license and lifting the stay on the suspension of her license. From this order, Hulse appeals.

DISCUSSION

¶10 Did the District Court err when it denied Hulse's petition to reinstate her driver's license?

¶11 Pursuant to § 61-8-403(4)(a), MCA (1995), in a driver's license reinstatement proceeding, a district court is limited to considering whether:

(i) a peace officer had reasonable grounds to believe that the 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, drugs, or a combination of the two;

(ii) the person was placed under arrest; and

(iii) the person refused to submit to the test or tests.

¶12 The reasonable grounds requirement set forth in § 61-8-403(4)(a)(i), MCA (1995), is the equivalent of particularized suspicion as defined in § 46-5-401, MCA. Seyferth v. State (1996), 277 Mont. 377, 384, 922 P.2d 494, 498 (citing Anderson v. State (1996), 275 Mont. 259, 263, 912 P.2d 212, 214). 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, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

"When a police officer seizes a person, such as in a brief investigatory stop, the Fourth Amendment right against unreasonable searches and seizures applies." Bauer v. State (1996), 275 Mont. 119, 125, 910 P.2d 886, 889. Therefore, because an investigatory stop must be justified by an objective manifestation that the individual stopped "has committed, is committing, or is about to commit an offense," we have adopted a two-part test to evaluate whether a police officer had sufficient cause to stop an individual. First, the State must establish objective data from which an experienced officer can make certain inferences. Second, the State must establish a resulting suspicion that an occupant of a vehicle is, or has been, engaged in wrongdoing or was a witness to criminal activity. Seyferth, 277 Mont. at 384, 922 P.2d at 498; State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296. Therefore, whether particularized suspicion exists is a question of fact dependent on the totality of the circumstances. Anderson, 275 Mont. at 263, 912 P.2d at 214 (citing State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540, 542-43).

¶13 Next, to determine whether a person was placed under arrest, § 61-8-403(4)(a)(ii), MCA (1995), we must consider whether an officer had the right to make the arrest. Grinde v. State (1991), 249 Mont. 77, 80, 813 P.2d 473, 475. An officer has the right to make an arrest if the arrest is supported by probable cause. Section 46-6-311, MCA. Probable cause for an arrest exists when the facts and circumstances within the arresting officer's personal knowledge are sufficient to warrant a reasonable person to believe that the suspect has committed an offense. Jess v. State Dept. of Justice, MVD (1992), 255 Mont. 254, 261, 841 P.2d 1137, 1141. Additionally, particularized suspicion for a stop can ripen into probable cause to arrest based on the occurrence of facts or incidents after the stop. Jess, 255 Mont. at 261, 841 P.2d at 1141. That is, "an officer who makes an investigative stop is not precluded from making an arrest based on observations made during the stop." Anderson, 275 Mont. at 265, 912 P.2d at 215.

¶14 Finally, if an officer had particularized suspicion which ripened into probable cause to arrest an individual for DUI, the court must determine whether the person refused to submit to a blood alcohol test or...