Submitted on Briefs: November 8, 2018
District Court of the Seventeenth Judicial District, In and
For the County of Blaine, Cause No. DV-2016-19 Honorable
Daniel A. Boucher, Presiding Judge
Appellant: Jeremy S. Yellin, Attorney at Law, Havre, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Kelsie W.
Harwood, Blaine County Attorney, Chinook, Montana
McGrath, Chief Justice.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Defendant Todd Allen Jorgenson appeals from a Seventeenth
Judicial District order denying his petition for the return
of his driver's license following Jorgenson's refusal
to provide a breath sample. We affirm.
At 7:00 p.m. on September 24, 2016, Deputy Ritterbagh
(Deputy) stopped Jorgenson on Highway 2 outside of Havre,
Montana, for speeding. The Deputy clocked Jorgenson traveling
eighty-three miles per hour in a seventy-mile-per-hour-speed
zone and witnessed Jorgenson crossing the center and fog
lines. Jorgenson failed to promptly respond to the
Deputy's emergency lights and shifted into reverse
instead of park once he pulled over. As the Deputy approached
Jorgenson's vehicle, he smelled alcohol and noticed
Jorgenson's bloodshot eyes and slurred speech. Jorgenson
admitted to consuming alcohol and stated he would fail a
field sobriety test. Because Jorgenson appeared to use a
cane, the Deputy required Jorgenson to complete only the
horizontal gaze nystagmus (HGN) portion of the field sobriety
test. Jorgenson provided a breath sample on the preliminary
breath tester, which showed his blood alcohol concentration
(BAC) at 0.183. The Deputy arrested Jorgenson for driving
under the influence of alcohol (DUI). At the detention
center, Jorgenson refused to provide a breath sample for the
Intoxilyzer 8000, resulting in the suspension of his
driver's license. The State charged Jorgenson with DUI.
Jorgenson challenged the suspension of his license. The
District Court denied Jorgenson's petition for
reinstatement following a May 15, 2017 evidentiary hearing.
A district court's decision in driver's license
reinstatement proceedings is limited to: (1) whether a peace
officer had reasonable grounds to believe that the person was
driving while under the influence of alcohol or drugs; (2)
whether the person was placed under arrest for DUI; and (3)
whether the person refused to submit to one or more tests
designated by the officer. Section 61-8-403(4)(a)(i), MCA;
Ditton v. DOJ Motor Vehicle Div., 2014 MT 54, ¶
26, 374 Mont. 122, 319 P.3d 1268. This Court reviews a
district court's findings of fact for clear error and
conclusions of law for correctness. Brunette v.
State, 2016 MT 128, ¶ 11, 383 Mont. 458, 372 P.3d
476. A district court's findings of fact are clearly
erroneous if they are not supported by substantial evidence,
the district court misapprehends the effect of the evidence,
or review of the record convinces this Court a mistake was
made. In re License Suspension of Cybulski, 2008 MT
128, ¶ 14, 343 Mont. 56, 183 P.3d 39. "The
suspension of a driver's license is presumed to be
correct; therefore, the petitioner bears the burden of
proving that the State's action was improper."
Brunette, ¶ 11.
On appeal, Jorgenson argues that the Deputy's testimony
lacked credibility and that the District Court erred by
failing to find he was illegally stopped, resulting in an
illegal investigation and arrest for DUI.
The reasonable grounds requirement of §
61-8-403(4)(a)(i), MCA, is the equivalent of particularized
suspicion; it is a factual determination based on the
totality of the circumstances confronting an officer.
Ditton, ¶ 30. This Court has held that
objective facts like erratic driving, swerving across lane
lines, failure to respond to emergency lights, the smell of
alcohol, slurred speech, and admissions of alcohol
consumption can amount to reasonable grounds for an officer
to believe a person is driving under the influence of
alcohol. Clark v. State ex. rel. Driver Improvement
Bureau, 2005 MT 65, ¶ 7, 326 Mont. 278, 109 P.3d
244; State v. Henderson, 1998 MT 233, ¶ 5, 291
Mont. 77, 966 P.2d 137; Brown v. State, 2009 MT 64,
¶ 23, 349 Mont. 408, 203 P.3d 842; Muri v.
State, 2004 MT 192, ¶ 16, 322 Mont. 219, 95 P.3d
This Court will not disturb the District Court's
determination of the Deputy's credibility at the
evidentiary hearing. See Weer v. State, 2010 MT 232,
¶ 18, 358 Mont. 130, 244 P.3d 311. The record reflects
that the Deputy had particularized suspicion to stop
Jorgenson because Jorgenson was speeding and crossing the
center and fog lines. Kummerfeldt v. State, 2015 MT
109, ¶ 11, 378 Mont. 522, 347 P.3d 1233.
The Deputy had reasonable grounds to believe Jorgenson was
driving under the influence of alcohol because Jorgenson
crossed the center and fog lines, failed to promptly respond
to the Deputy's emergency lights, put his vehicle into
reverse instead of park once pulled over, smelled of alcohol,
had bloodshot eyes, slurred his speech, admitted to consuming
alcohol, and stated he would likely fail a field sobriety
test. The Deputy had reasonable grounds ...