Ide v. State Department of Justic

2002 MT 28N

• Court: Montana Supreme Court
• Decided: February 25, 2002
• Docket: 01-163
• Status: Published

Opinion

No. 01-163

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 28N

THOMAS IDE,

Plaintiff and Appellant,

v.

STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION,

Defendant and Respondent.

APPEAL FROM: District Court of the Third Judicial District, In and for the County of Powell, The Honorable Ted L. Mizner, Judge presiding

COUNSEL OF RECORD:

For Appellant:

Mark E. Jones, Attorney at Law, Missoula, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana

Christopher G. Miller, Powell County Attorney, Deer Lodge, Montana

Submitted on Briefs: January 24, 2002

Decided: February 25, 2002 Chief Justice Karla M. Gray delivered the Opinion of the Court

ill Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It 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 irrthe quarterly table of noncitable cases issued by this Court.

ll2 Thomas Ide appeals from the decision of the Third Judicial District Court, Powell

County, denying his petition for reinstatement of his driver’s license, which was seized when

he failed to submit to a test of his breath for alcohol or drugs. We affirm.

83 On appeal, Ide argues that his arrest was illegal because the officer lacked probable

cause to arrest him for driving under the influence (DUI). Fatally to his appeal, Ide did not

argue this theory before the District Court.

ll4 In both his proposed findings and conclusions and his response to the State of

Montana’s proposed findings and conclusions in the District Court, Ide asserted only that the

arresting officer lacked particularized suspicion to stop him on suspicion of DUI. The

District Court ultimately disagreed, and Ide has appealed that decision. Ide did not advocate

for a finding of no probable cause for his arrest in the District Court. While Ide asserts

“[tlhere is nothing new” regarding his assertion of error re1atin.g to lack ofprobable cause on

appeal, he is incorrect. Particularized suspicion and probable cause to arrest are two distinct

2 issues: particularized suspicion is determined at the time of the initial stop of a vehicle,

while probable cause for the arrest may arise based on the occurrence of facts or incidents

after the initial stop. See H&e V. State, Dept. ofJ~s/ice, 1998 MT 108,fil 12-13,289 Mont.

l,llj 12-13,961 P.2d 75,ll 12-13.

n5 This Court has repeatedly held that it will not address either an issue raised for the

first time on appeal or a party’s change in legal theory on appeal. See, e.g., Unz$ed Zndus.,

Inc. v. Easley, 1998 MT 145,l 15, 289 Mont. 255,l 15,~961 P.2d 100,q 15. We do not

consider such matters because it is unfair to fault a tial court on an issue it was never given

an opportunity to consider. Renner v. Nemitz, 2001 MT 202,l 15,306 Mont. 292,y 15,33

P.3d 255,l 15.

f/6 Because Ide did not argue lack of probable cause in the District Court, we decline to

address that argument further. Nor has Ide presented argument, legal analysis or authority--

as required by Rule 23(a)(4), M.R.App.P.--challenging the particularized suspicion

determination on which the District Court premised its denial of his petition for reinstate-

ment.

ll7 Affirmed. Wc concur: