                            No.    92-566
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1993


LEO DAVID McCULLUGH,
          Petitioner and Appellant,
     v.
STATE OF MONTANA,
          Respondent and Respondent.



APPEAL FROM:   District Court of the Twentieth Judicial District,
               In and for the County of Lake,
               The Honorable C. B. McNeil, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               James A. Manley, Esq., Manley Law Offices,
               Polson, Montana
          For Respondent:
               Honorable Joseph P. Mazurek, Attorney General;
               Carol E. Schmidt, Assistant Attorney General;
               Helena, Montana
               Larry J. Nistler, County Attorney: Robert J. Long,
               Deputy County Attorney; Polson, Montana


                              Submitted on Briefs:   June 17, 1993
Chief Justice   3.   A. Turnage delivered the Opinion of the Court.
     Leo David McCullugh appeals from an order entered by the
District Court for the Twentieth Judicial District, Lake County,
The court denied McCullugh's petition to vacate an order suspending
his driver's license pursuant to 5 61-8-402, MCA.     We affirm.
     The issue is whether the District Court erred in ruling that
the arresting officer had probable cause to arrest McCullugh for
driving or being in actual physical control of a vehicle while
under the influence of alcohol.
     On August 21, 1992, at approximately 6 a.m., Lake County
Deputy Sheriff Edward Todd observed a truck off the road on old
Highway 93 south of Pablo, Montana. The front end of the truck was
in the ditch and the rear end was up on the road a little bit.
Todd observed McCullugh jacking up the back end of the truck.
     After talking to McCullugh, Todd concluded that he was under
the influence of alcohol, placed him in the back of his patrol car,
and called for assistance from a highway patrol officer.           The
highway patrol officer checked McCullugh's eyes for nystaqmus,
noted that his balance was unsteady, and detected a strong odor of
alcohol on his breath. He arrested McCulluqh for driving under the
influence of alcohol.
    McCullugh refused to take a breath test.        As a result, his
driver's license was suspended pursuant to 5 61-8-402, MCA.        We
note that this action under the implied consent law is separate
from any DUI prosecution arising out of these events.
                                   2
     McCullugh appealed the suspension of his driver's license to
~istrictCourt, arguing that the highway patrol officer did not
have reasonable grounds to believe that he had been driving or tias
in actual control of a vehicle while under the influence of
alcohol.   After a hearing, the District Court denied the petition
to vacate the suspension of McCullugh's driver's license.


     Did the District Court err in ruling that the arresting
officer had probable cause to arrest McCulluqh for driving or being
in actual physical control of a vehicle while under the influence
of alcohol?
      Section 61-8-403, MCA, provides that, in a petition for
review of the revocation of a driver's license for failure to
submit to a blood, breath, or urine test,
     the issues shall be limited to whether a peace officer
     had reasonable grounds to believe 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, whether the person was placed under arrest, and
     whether such person refused to submit to the test.
McCullugh contests only the first of these three issues, whether
the arresting officer had reasonable grounds to believe he was in
actual physical control of his truck upon a public highway while
under the influence of alcohol.
     "Reasonable groundsm as used in 5 61-8-403, MCA, is synonymous
with "probable cause."   Boland v. State (1990), 242 Mont. 520, 524,
     The probable cause requirement is satisfied at the time
     of arrest if the facts and circumstances within the
     officer's personal knowledge, or upon information
     imparted to him by a reliable source, are sufficient to
     warrant a reasonable person to believe that the suspect
     has committed an offense.
State v. Lee ( 1 9 8 8 ) , 232 Mont. 105, 109, 754 P.2d 512, 515.
     At the hearing before the District Court, McCullugh testified
that his truck became stuck in the ditch hours before Deputy Todd
observed him there. McCullugh testified to the following chronolo-
gy of events:   Angry with his wife, he left home a little after 2
a.m. to spend the night at a friend's house.      While he was driving
to the friend's house, his brakes went out,       He turned the truck
into the ditch, planning on leaving it there until he could get the
brakes fixed.   He had not been drinking alcohol up to this point.
He then walked to his friend's house in Pablo, where the friend
invited him to drink some Black Velvet and to stay for the night.
After drinking about half of a fifth of Black Velvet, McCullugh
became concerned that the back end of his truck was in the road.
He walked back to the vehicle about 6 a.m. to push the back end of
the truck off the road.    When he was arrested, he did not realize
that he did not even have the keys to the truck with him, having
left them on his friend's kitchen counter.
     McCullugh asserts that the arresting officers should have
ascertained whether he had the keys to the truck with him when they
arrested him.   He also maintains they should have checked the hood
of the truck to see if it was warm and should have questioned him
as to when he had been driving, when he had been drinking, or
whether he had been drinking prior to driving.
     At the hearing on McCullugh's petition to vacate the suspen-
sion of his driver's license, the highway patrolman testified:
    A. I was called out roughly 20 after 6:00 or so and was
    advised that Ed had run across a wreck on Old Highway 93
    just south of Pablo. When I got there, I talked to Ed
    for a little bit and noted there was a pickup, as Ed
    stated earlier, nosed into the borrow pit with the tail
    end sticking nut a little bit and there was a jack, it
    appeared that someone was jacking it up, and the driver,
    Mr. McCullugh, was in the back of Deputy Todd's patrol
    car, I asked Ed about everything, what had took place:
    if he talked to the driver. He said momentarily, but he
    said there obviously was alcohol involved, you could
    smell it on the driver, and he thought there might be
    some damage to the vehicle, which there wasn't. I found
    no damage to the pickup at all. I then went and had the
    driver get out and questioned him.


     Q. Okay. Did you question him regarding whether he had
     been driving?
    A.    Yes, I did.
     Q.   And what was the substance of that conversation?
    A. He stated he was coming into Pablo from the south,
    lost his brakes and went into the borrow pit.
     Q. Okay. Did he indicate whether he had just done that
     or whether that was three hours prior to your arriving?
    A, From what he told me, it was within an hour, so about
    a quarter to 6:00 or so.
    Q. Okay. Did he ever make any statements about having
    been over at Mr. Mather's house?
    A. No, he didn't.    However, he stated that that's where
    he was going to.
     Q. Okay. Did he ever     --well, did you ask him about
     whether he had been drinking?
     A. Yes. I asked him if he had had anything to drink and
     he stated that he had about a case of beer.
     The defense points out that, in his written report, the
highway patrolman did not write that McCullugh was driving within
a hour of when he was arrested.       It also cites the following
testimony of the highway patrolman on cross-examination:
     Q.   Now, Patrolman Roth, let me ask you about your
     testimony here a moment ago. Mr. Long asked you if Mr.
     McCullugh had made any stateaents about when he had heen
     driving into Pablo, and I believe that your testimony was
     that from what you understood or from what you got, it
     had been within an hour?
     A. That's the conversation I had with Mr. McCullugh as
     we were driving into Polson.
The defense points out that, as they were driving into Polson,
McCullugh was already under arrest and that statements made after
arrest cannot be used to support a determination of probable cause.
     Because of the question as to when McCullugh made           the
statement that he had been driving within an hour of his arrest, we
do not consider that statement in determining whether there was
probable cause for arrest.   It does not appear that the District
Court relied upon that statement, either.      At the end of the
hearing, the District Court stated:
    Both the deputy sheriff and the highway patrolman came on
    the scene. Here's a single occupant or a single person
    in control of this vehicle, he obviously had been
    drinking, it had run into the ditch. There was no reason
    for them to look for keys or try to ascertain whether the
    drinking had happened sometime after the accident.  ..  .
    [Tlhe petition is denied.
     The highway patrolmanis testimony demonstrates that Deputy
Todd indicated to him that McCullugh was the driver of the truck.
When he was arrested, McCullugh did not tell the law enforcement
officers his story concerning the delay between his driving and his
drinking.   He would have this Court put the burden on the officers
to elicit the information from him that he had "parked" his truck
in the ditch, left the truck and ingested the Black Velvet, and
then, several hours later, returned to the truck. He also asks us
to put the burden on the officers to make sure that he had the keys
to the truck in his possession at the time of his arrest.   As the
State points out, such a requirement would encourage persons in
such situations to "lose1'their keys.
     McCullugh's story is not the first or most natural conclusion
a reasonable person would reach after observing a man obviously
under the influence of alcohol trying to move a vehicle stuck on
the side of the road. At the time of his arrest, McCullugh did not
offer the officers the explanation he now gives.   We conclude that
the information available to the officers at the time of McCul-
lugh's arrest was sufficient to warrant a reasonable person to
believe that McCullugh was in physical control of the truck.
    We affirm the ruling of the District Court.
We   concur:
                                      July 20, 1993

                             CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


James A. Manley
Manley Law Offices
201 Fourth Ave. E.
Polson, MT 59860


Larry J. Nistler, County Attorney
Robert J. Long, Deputy
Lake County Courthouse
Polson. MT 59860


HON. JOSEPH P. MAZUREK Attorney General
Carol E. Schmidt. Assistant
Justice Bldg.
Helena. MT 59620



ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA
