No. 03-415
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 92N
In the Matter of Suspension of the Driving Privilege of
DOUGLAS ALMORE ALEXANDER,
Petitioner and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, Cause No. DV 2002-330 The Honorable Mike Salvagni, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Karl P. Seel, Attorney at Law, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Montana Attorney General, Robert Stutz, Assistant Attorney General, Helena, Montana; Marty Lambert, Gallatin County Attorney, Eric Kitzmiller, Deputy Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: March 16, 2004
Decided: April 13, 2004 Filed:
__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Douglas Almore Alexander appeals an order of the District Court for the Eighteenth
Judicial District, Gallatin County, denying Alexander’s petition challenging the denial of his
driving privileges. We affirm.
¶3 We address the following issue on appeal: Whether the District Court erred in
denying Alexander’s petition challenging the denial of his driving privileges.
Factual and Procedural Background
¶4 On June 2, 2002, Deputy Alex Fuller of the Gallatin County Sheriff’s Department
observed a vehicle weaving back and forth while driving down the middle of the road.
Deputy Fuller stopped the vehicle and initiated a DUI investigation by administering various
field sobriety tests to Alexander, the driver of the vehicle. Deputy Fuller also asked
Alexander to submit to a preliminary breath test (PBT). Deputy Fuller read the non-
commercial implied consent advisory to Alexander, thus Alexander was aware of the
consequences of his refusal to take the PBT. Nevertheless, Alexander refused to take the
PBT.
2 ¶5 After arresting Alexander and transporting him to the Gallatin County Detention
Center, Deputy Fuller asked Alexander to submit to an intoxilyzer test. Deputy Fuller again
read Alexander the non-commercial implied consent advisory. Deputy Fuller also indicated
to Alexander that a laminated copy of the non-commercial advisory was located on the desk
in front of him if Alexander wanted to follow along while Deputy Fuller read the advisory.
Once again, even though Alexander was aware of the consequences of his refusal to take the
test, he refused. Alexander does not dispute that Deputy Fuller provided the proper
advisories regarding the intoxilyzer test.
¶6 After Alexander refused to perform the breath tests, Deputy Fuller suspended his
license and provided him with a form giving notice of the suspension. However, the form
that Deputy Fuller completed and provided to Alexander was for suspension of a commercial
driver’s license. Deputy Fuller later testified that both the commercial and non-commercial
forms are kept in the same drawer at the detention center and that he inadvertently grabbed
the wrong one.
¶7 A few weeks later, after employees of the Motor Vehicle Department realized that
they had been sent the wrong form, they sent Deputy Fuller a blank copy of the correct, non-
commercial form for him to complete. He completed the correct form, referencing only that
Alexander refused to submit to a PBT, and returned it to the Motor Vehicle Department.
Both on the form and at the subsequent hearing on Alexander’s petition, Deputy Fuller
certified to the accuracy of the information on the corrected form.
3 ¶8 While this form typically has duplicate copies attached, the one provided by the
Motor Vehicle Department had no duplicates. Consequently, when Deputy Fuller
completed the form, there was no duplicate copy to send to Alexander and, as Deputy Fuller
later testified, it did not occur to him to provide a copy of the corrected form to Alexander.
As a result, Alexander did not receive a copy of the corrected form until the day of the
hearing.
¶9 Alexander filed a petition challenging the suspension of his driving privileges on June
14, 2002. Thereafter, the District Court ordered that the suspension of Alexander’s driving
privileges be stayed pending determination of Alexander’s petition. After a hearing and
briefing, the District Court denied the petition, lifted the stay and reinstated the action against
Alexander ordering that he surrender his driver’s license. Alexander appeals from this
adverse ruling.
Discussion
¶10 Whether the District Court erred in denying Alexander’s petition challenging the denial of his driving privileges.
¶11 Alexander argues that his driver’s license should be reinstated because the notice he
received regarding the suspension of his license related to commercial vehicles and he was
not driving a commercial vehicle. He also argues that the notice was not certified.
¶12 We review a district court’s findings of fact on the denial of a petition for
reinstatement of a driver’s license to determine whether those findings are clearly erroneous.
Kleinsasser v. State, 2002 MT 36, ¶ 9, 308 Mont. 325, ¶ 9, 42 P.3d 801, ¶ 9 (citations
4 omitted). We then review the court’s conclusions of law to determine whether they are
correct. Kleinsasser, ¶ 9. Furthermore, “[b]ecause a presumption of correctness attaches to
the State’s act of suspending or revoking a driver’s license, the driver bears the burden of
proving that the suspension or revocation of a driver’s license was improper.” Kleinsasser,
¶ 10 (quoting Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 14, 289 Mont. 1, ¶ 14, 961
P.2d 75, ¶ 14).
¶13 During a hearing to reinstate driving privileges, the issues to be considered are limited
to 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 and the person was placed under arrest for violation of 61-8-401; (ii) the person is under 21 years of age and was placed under arrest for a violation of 61-8-410; (iii) the officer had probable cause to believe that the person was driving or in actual physical control of a vehicle in violation of 61-8-401 and the person was involved in a motor vehicle accident or collision resulting in property damage, bodily injury, or death; and (iv) the person refused to submit to one or more tests designated by the officer.
Section 61-8-403(4)(a), MCA. “Based on the issues in subsection (4)(a) and no others, the
court shall determine whether the petitioner is entitled to a license or whether the petitioner’s
license is subject to suspension or revocation.” Section 61-8-403(4)(b), MCA (emphasis
added).
¶14 Based on the foregoing, the only issue presented by Alexander that is appropriate for
review is whether the State properly suspended his driver’s license. The fact that Alexander
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No. 03-415
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 92N
In the Matter of Suspension of the Driving Privilege of
DOUGLAS ALMORE ALEXANDER,
Petitioner and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, Cause No. DV 2002-330 The Honorable Mike Salvagni, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Karl P. Seel, Attorney at Law, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Montana Attorney General, Robert Stutz, Assistant Attorney General, Helena, Montana; Marty Lambert, Gallatin County Attorney, Eric Kitzmiller, Deputy Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: March 16, 2004
Decided: April 13, 2004 Filed:
__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Douglas Almore Alexander appeals an order of the District Court for the Eighteenth
Judicial District, Gallatin County, denying Alexander’s petition challenging the denial of his
driving privileges. We affirm.
¶3 We address the following issue on appeal: Whether the District Court erred in
denying Alexander’s petition challenging the denial of his driving privileges.
Factual and Procedural Background
¶4 On June 2, 2002, Deputy Alex Fuller of the Gallatin County Sheriff’s Department
observed a vehicle weaving back and forth while driving down the middle of the road.
Deputy Fuller stopped the vehicle and initiated a DUI investigation by administering various
field sobriety tests to Alexander, the driver of the vehicle. Deputy Fuller also asked
Alexander to submit to a preliminary breath test (PBT). Deputy Fuller read the non-
commercial implied consent advisory to Alexander, thus Alexander was aware of the
consequences of his refusal to take the PBT. Nevertheless, Alexander refused to take the
PBT.
2 ¶5 After arresting Alexander and transporting him to the Gallatin County Detention
Center, Deputy Fuller asked Alexander to submit to an intoxilyzer test. Deputy Fuller again
read Alexander the non-commercial implied consent advisory. Deputy Fuller also indicated
to Alexander that a laminated copy of the non-commercial advisory was located on the desk
in front of him if Alexander wanted to follow along while Deputy Fuller read the advisory.
Once again, even though Alexander was aware of the consequences of his refusal to take the
test, he refused. Alexander does not dispute that Deputy Fuller provided the proper
advisories regarding the intoxilyzer test.
¶6 After Alexander refused to perform the breath tests, Deputy Fuller suspended his
license and provided him with a form giving notice of the suspension. However, the form
that Deputy Fuller completed and provided to Alexander was for suspension of a commercial
driver’s license. Deputy Fuller later testified that both the commercial and non-commercial
forms are kept in the same drawer at the detention center and that he inadvertently grabbed
the wrong one.
¶7 A few weeks later, after employees of the Motor Vehicle Department realized that
they had been sent the wrong form, they sent Deputy Fuller a blank copy of the correct, non-
commercial form for him to complete. He completed the correct form, referencing only that
Alexander refused to submit to a PBT, and returned it to the Motor Vehicle Department.
Both on the form and at the subsequent hearing on Alexander’s petition, Deputy Fuller
certified to the accuracy of the information on the corrected form.
3 ¶8 While this form typically has duplicate copies attached, the one provided by the
Motor Vehicle Department had no duplicates. Consequently, when Deputy Fuller
completed the form, there was no duplicate copy to send to Alexander and, as Deputy Fuller
later testified, it did not occur to him to provide a copy of the corrected form to Alexander.
As a result, Alexander did not receive a copy of the corrected form until the day of the
hearing.
¶9 Alexander filed a petition challenging the suspension of his driving privileges on June
14, 2002. Thereafter, the District Court ordered that the suspension of Alexander’s driving
privileges be stayed pending determination of Alexander’s petition. After a hearing and
briefing, the District Court denied the petition, lifted the stay and reinstated the action against
Alexander ordering that he surrender his driver’s license. Alexander appeals from this
adverse ruling.
Discussion
¶10 Whether the District Court erred in denying Alexander’s petition challenging the denial of his driving privileges.
¶11 Alexander argues that his driver’s license should be reinstated because the notice he
received regarding the suspension of his license related to commercial vehicles and he was
not driving a commercial vehicle. He also argues that the notice was not certified.
¶12 We review a district court’s findings of fact on the denial of a petition for
reinstatement of a driver’s license to determine whether those findings are clearly erroneous.
Kleinsasser v. State, 2002 MT 36, ¶ 9, 308 Mont. 325, ¶ 9, 42 P.3d 801, ¶ 9 (citations
4 omitted). We then review the court’s conclusions of law to determine whether they are
correct. Kleinsasser, ¶ 9. Furthermore, “[b]ecause a presumption of correctness attaches to
the State’s act of suspending or revoking a driver’s license, the driver bears the burden of
proving that the suspension or revocation of a driver’s license was improper.” Kleinsasser,
¶ 10 (quoting Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 14, 289 Mont. 1, ¶ 14, 961
P.2d 75, ¶ 14).
¶13 During a hearing to reinstate driving privileges, the issues to be considered are limited
to 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 and the person was placed under arrest for violation of 61-8-401; (ii) the person is under 21 years of age and was placed under arrest for a violation of 61-8-410; (iii) the officer had probable cause to believe that the person was driving or in actual physical control of a vehicle in violation of 61-8-401 and the person was involved in a motor vehicle accident or collision resulting in property damage, bodily injury, or death; and (iv) the person refused to submit to one or more tests designated by the officer.
Section 61-8-403(4)(a), MCA. “Based on the issues in subsection (4)(a) and no others, the
court shall determine whether the petitioner is entitled to a license or whether the petitioner’s
license is subject to suspension or revocation.” Section 61-8-403(4)(b), MCA (emphasis
added).
¶14 Based on the foregoing, the only issue presented by Alexander that is appropriate for
review is whether the State properly suspended his driver’s license. The fact that Alexander
5 received the wrong notice form--i.e., the commercial vehicle form rather than the non-
commercial vehicle form--is irrelevant to whether suspension of his license was proper under
§ 61-8-403(4)(a), MCA. We refused to address a similar claim in In re McKenzie, 2001 MT
25, ¶ 12, 304 Mont. 153, ¶ 12, 19 P.3d 221, ¶ 12, wherein we stated that the “refusal to
submit to a portable breath test in the field after being informed of [the] right to refuse and
the consequences of refusal is sufficient cause to suspend [McKenzie’s] license . . . .”
¶15 The question of whether the State properly suspended Alexander’s driver’s license
is resolved by the facts of record. Alexander concedes that he was driving the vehicle; that
he was properly stopped; that he was read the non-commercial implied consent advisories;
that he understood the consequences of those advisories; and that he refused to take the PBT
after being read the implied consent advisories. Pursuant to § 61-8-403(4)(a)(iv), MCA,
those are the exact circumstances under which the State may properly suspend a driver’s
license. Events subsequent to Alexander’s refusal cannot affect the validity of his arrest and
the revocation of his driving privileges.
¶16 Accordingly, we hold that the District Court correctly denied Alexander’s petition
challenging the denial of his driving privileges.
¶17 Affirmed.
/S/ JAMES C. NELSON
We Concur:
6 /S/ KARLA M. GRAY /S/ PATRICIA O. COTTER /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART