                                       NO.    96-331

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                             1997



FORREST M. SANDERS,

          Petitioner         and Appellant,
     v.

STATE OF MONTANA, ex rel.
DARRELL E. BECKSTROM, Chief,
DRIVER IMPROVEMENT BUREAU,
          Respondent         and Respondent




APPEAL FROM:     District  Court of the Thirteenth     Judicial   District,
                 In and for the County of Yellowstone,
                 The Honorable   Diane G. Bars,    Judge Presiding.



COUNSEL OF RECORD:

          For   Appellant:

                 Forrest       M. Sanders,          Pro     Se,   Billings,      Montana


          For   Respondent:

                 Honorable   Joseph           P. Mazurek,    Attorney           General;
                 Jennifer   Anders,           Assistant   Attorney            General,
                 Helena,   Montana

                 Alan J.       Hall,     Deputy      City     Attorney,       Billings,
                 Montana
Chief       Justice               J.    A.      Turnage               delivered                  the      Opinion                of      the      Court.

           Pursuant               to    Section                I,     Paragraph                  3 (c),        Montana                Supreme            Court
1995 Internal                    Operating                  Rules,           the      following                decision                   shall         not      be

cited       as precedent                     and shall                be published                     by its              filing          as a public

document             with        the     Clerk              of the          Supreme              Court        and by a report                           of      its
result          to     State           Reporter                and West               Publishing                 Companies.

           Forrest                Sanders                  appeals              the        decision                   of         the         Thirteenth

Judicial               District                      court,           Yellowstone                         county,                   affirming                   the

suspension              of his           Montana                  driver's            license             pursuant                  to     § 61-8-402,

MCA.        We affirm.

           We restate                  the       following                  two       issues           raised              on appeal:

           1.        Did     the        District                  Court         err       in     finding              that          Officer             Longin

possessed              reasonable                     grounds              to     believe              that          Sanders               was driving

under       the        influence                 of        alcohol?

           2.        Did      the       District                  Court         properly               issue          amended              findings              of

fact       and conclusions                            of      law     to        correct           an error                  in      the      procedural

history          of        the      case?

           On October                  30,      1995,             Billings            City         Police             Officer              Tony         Longin

observed             a vehicle               make a right                         turn         without           stopping                  for      the         red

light.           The vehicle                    over-accelerated                           when it              turned,                causing            it     to

fishtail              and        back        end           into       the         center           lane         of         traffic.                 Officer

Longin          followed               the    vehicle                and observed                   that        it         slowed           at     the         next

intersection,                    where          it         made another                  right         turn          without              stopping              for

the      red      light.
           Officer            Longin             activated                  his       overhead                lights             and       stopped              the

vehicle.                    The        driver               exited              and      yelled            that             he        had         not          done


                                                                                  2
anything           wrong.              Officer          Longin          instructed                the         driver           to        return            to
his       vehicle            and       then        asked          for        his         driver's              license,                  proof             of

insurance,               and         registration.                      The         driver          produced                  his         license,

which          identified              him     as Forrest                Sanders.

           Officer             Longin          smelled            intoxicants                     on         Sanders'               breath            and

noticed           that         his      speech          was       slurred.                  When Officer                      Longin             again

requested                Sanders              to        produce               his          proof              of         insurance                    and

registration,                    Sanders           called         him         a "punk"              and         told          him         to      'If---

Off."             Officer             Longin         asked          Sanders                to     perform               field             sobriety

tests,          which          Sanders           refused.

           Based         on his         experience             and these                 observations,                   Officer                Longin
concluded               that         Sanders            was     under              the       influence                  of      alcohol               and

arrested            him.             Sanders         was transported                         to     the        Yellowstone                      County

Detention               Facility.                  There,         Officer                Longin           read          him         an         implied

consent          advisory              form      and requested                 him to             submit           to        a breath             test.

Sanders           refused.               Accordingly,                   the        Montana             Department                   of     Justice

suspended            Sanders'             license             pursuant              to     5 61-8-402,                   MCA.

           Sanders           petitioned              the      District              Court         pursuant               to      § 61-8-403,

MCA, to           review         his      license           suspension,                   which         it     affirmed.                       Sanders

appeals.

       1. Did the District       Court err in finding                                                         that Officer    Longin
possessed   reasonable     grounds    to believe  that                                                       Sanders    was driving
under the influence     of alcohol?

           Sanders           contends            that      Officer            Longin            lacked          reasonable                     grounds

to      believe           that         he was           driving          under             the         influence                of        alcohol.

More       specifically,                  he claims             that         the         police         lacked           probable                 cause

to      pull      him       over.


                                                                         3
          We        review           a         district             court's                denial                  of      a      petition              for

reinstatement                   of         a     driver's             license                  to          determine                whether             the

court's          findings             of       fact       are      clearly           erroneous                         and its       conclusions

of     law     are     correct.                 Bauer        v.     State          (1996),             275 Mont.                  119,       122,       910

P.Zd         886,      888.              In      reinstatement                     proceedings,                          a presumption                   of

correctness                attaches              to    the        State's           act         of     revocation.                    The burden
of     proving         that          the        suspension              was improper                            lies      with       the      driver.

Jess      v.    State,          Dept.           of     Justice,          MVD (1992),                        255 Mont.               254,       259-60,

841 P.2d             1137,       1140.

          When          the          District                   Court             considered                           Sanders'              petition

challenging              his      license              suspension                 pursuant                 to      5 61-8-403,               MCA, its

review         was limited                 to whether               Officer           Longin                had reasonable                    grounds

to believe             that      Sanders               was driving                 under             the        influence            of      alcohol.

See Grinde             v.       State            (1991),           249 Mont.                   77,     79,             813 P.2d           473,        475.

The reasonable                   grounds              provided              for     in         55 61-8-402                     and    -403,           MCA,

are     essentially               the          same test             as particularized                                  suspicion            provided

for     in     § 46-5-401,                 MCA, and discussed                             in     State             v.     Reynolds             (1995),

272 Mont.            46,       47-50,           899 P.2d            540,          541-42.              Bauer,              910 P.2d            at     889.

          Section            46-5-401,                MCA, supports                   an investigative                               stop        if     the

arresting             officer              has        a particularized                          suspicion                  that       an offense

has     been         committed.                  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.



                                                                            4
          The issue                  of whether                 particularized                        suspicion               exists               in    order

to     justify             an        investigative                        stop       is        fact      driven.                   Revnolds,                   899
P.2d      at      542-43.                   If,      after          making           a justified                  investigative                          stop,

the     police             officer                reasonably                believes             the         driver           to     be under                  the

influence             of        alcohol,              he can make an arrest                                  and require                  submission

to     a chemical                    test.            Grinde,                  813 P.2d           at     476.           An          investigative
stop      may ripen                  into         probable               cause       to    arrest             through              the    occurrence

of     facts       or       incidents                  after             the     stop.           ~,
                                                                                                 Jess           841 P.Zd                 at    1141.

          The District                       Court          found         that       Officer            Longin          observed                   Sanders'
vehicle           traveling                   on North               27th        Street.               The vehicle                   slowed              for     a

red     light,          but          failed          to make a complete                               stop     before              making           a right

hand turn.                 While            making            the        turn,       Sanders'            vehicle              fishtailed                  into
another           lane          of     traffic.                 Sanders              made another                     right          turn           without

stopping           for          the         red      light.               Based        on these               observations,                         Officer

Longin           concluded                   that      additional                    investigation                     was necessary                           and
initiated             a traffic                     stop.

          After          stopping                 Sanders,               Officer          Longin             smelled          intoxicants                      and

observed              Sanders'                      slurred                speech.                     Sanders            also                exhibited

difficulty                 in        finding           his          driver's              license             and refused                     to        comply

with        Officer             Longin's               instructions                       to     produce              proof          of       insurance
and      registration.                              Based           on     these          findings,               the          District                  Court

concluded               that           Officer                Longin             possessed                   reasonable                   grounds               to

believe           that           Sanders              was           operating              his         vehicle           while                under            the

influence             of        alcohol               and       that           his    license                was properly                     suspended

pursuant           to       § 61-8-402(3),                           MCA.




                                                                                 5
          The District                     Court         considered                        the     relevant             factors             under             § 61-

8-402,         MCA, and properly                          denied             Sanders'                 petition                for     reinstatement
of      his       driver's                 license.                    We hold                     that          the      District                      Court's

findings           are     supported                 by substantial                              credible          evidence                 and are             not

clearly           erroneous.
          Sanders              argues           that        the         District                     Court         erred             when          it        found

that       the      traffic                lights           where             he            failed          to     stop             were          red.            He

submitted                testimony                  at      the           reinstatement                            hearing                  from             Scott

Spurlock,            Billings                City         Signal              Supervisor,                        concerning                  the         timing

and sequence                   of     traffic            lights              in        downtown             Billings,                 in     an attempt

to prove          that          it     would        be impossible                            for      him        to run             two consecutive

red     lights.                The court                 found         Spurlock's                      "confusing                   testimony"                  did

not     confirm           Sanders'               theory            that               it     was impossible                         for      him         to     run

two     consecutive                   red       lights            because                   Spurlock              did         not      know             at     what

speed         Sanders           was traveling.                         Witness                   credibility                  and the             weight          to

be given           to      their            testimony              are            to        be determined                       by the             trier          of

fact,         and disputed                   questions                  of        fact            and credibility                          will          not      be

disturbed           on appeal.                      State         v.     Ahmed                   (1996),         924 P.2d                 679,          686,      53

St.Rep.           804,         808,        petition               for         cert.               filed,          (U.S.             Nov.          25,        1996)

(No.      96-6901).
          We affirm                  the    District              Court's                   order          denying             Sanders'                 request

to      permanently                    enjoin             the          Montana                   Department                   of      Justice                  from

suspending               his         driver's             license                 and dissolving                        its         previous                 order

granting           him         interim           injunctive                       relief.
        2.  Did the District                                 Court            properly                 issue amended findings    of
fact    and conclusions     of                            law to             correct                 an error  in the procedural
history    of the case?


                                                                                  6
         Following                    the     reinstatement                  hearing,                on May 8,             1996,         the        court
issued          findings               and conclusions                      that        summarized                 the      history             of     the

case:

         Petitioner,     Forrest    Sanders,    pursuant  to 5 61-8-403,       MCA,
         requests    this     Court   reinstate      his  driving    privileges
         which were suspended for a period            of 90 days by the State
         of Montana     . .      on or about October       30, 1995.

         On         May          15,         1996,         the           court       issued                amended               findings              and

conclusions                    that         restated             the       previous             findings                and      conclusions,

except          that           the       ninety-day                license           suspension                   was amended                   to     six

months.             Sanders              claims        that         the      District            Court           lacked           jurisdiction
to     amend his               license             suspension               from     ninety            days        to      six     months.               We

are     unpersuaded                    by Sanders'                  argument.

         The           Montana                 Department                   of       Justice                is          responsible                    for

determining                    the       applicable                driver's              license            suspension                   period          in

accordance                with         § 61-8-402,                 MCA.          A notable              exception                 to     this        rule

is     explained                 in      Matter         of        Orman          (1986),             224     Mont.            332,            731    P.2d

833.           In    Orman,              a police               officer          mistakenly                 informed               a defendant

that      if        he failed                to     submit          to     the      offered            chemical               test            pursuant

to     5 61-8-402,                    MCA, that            his         license          would         be suspended                      for     ninety

days.           The        officer                was unaware               that         the     defendant                 had previously
declined              a        similar             chemical               test      in         the      last         five          years.                We

concluded              that            under         the        circumstances,                       the     defendant                   could         not

have     his         license                suspended            for       a period            longer            than       that         explained

to     him      by the            officer.                 m,               731 P.2d            at      835.

          That            is      not         the      situation                 here.               Neither             party           presented

evidence              at        the         reinstatement                    hearing             that            Officer               Longin          had

informed             Sanders                that     his        license            would        be suspended                      for         a period

                                                                             7
less    than six months.            After     the hearing,        Sanders'   attorney        signed
a stipulation         that      Sanders       had been read        an implied      consent     form
notifying       him of the         six-month      suspension.           Sanders    cannot     argue
now that     he was read anything               different.
        We hold      that      the District      Court       properly   amended its     findings
of fact     and conclusions            of law affirming            the six-month      suspension
of Sanders'         license.
        Affirmed.




We concur:




                Ju$tices
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