                            NO.    96-243

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1997


STATE OF MONTANA,
    Plaintiff and Respondent,
    v.

WILLIAM FOLEY,
    Defendant and Appellant.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable G. Todd Baugh, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 Gary R. Thomas, Thomas Law Office, Red Lodge,
                 Montana
          For Respondent:
                 Joseph P. Mazurek, Attorney General, Cregg W.
                 Couqhlin, Assistant Attorney General, Helena,
                 Montana; Dennis Paxinos, Yellowstone County
                 Attorney, Joseph Coble, Deputy Yellowstone County
                 Attorney, Billings, Montana


                            Submitted on Briefs: September 26, 1996
                                         ~ ~ ~ i d ~ d 11, 1997
                                                 March :
Filed:
Justice James C. Nelson 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 Publishing Company and West Publishing
Company.
     William Foley (Foley) was charged with driving under the
influence of alcohol, in violation of       §   61-8-401, MCA.     The
District Court for the Thirteenth Judicial District, Yellowstone
County, denied Foley's Motion to Dismiss or Suppress.            Foley
subsequently pleaded guilty to the charge but reserved his right to
appeal the District Court's denial of his motion.     We affirm.
     We address the following issues on appeal:
     1.    Did the District Court err when it concluded that Foley
was driving or in actual physical control of a vehicle upon the
ways of this State open to the public?
     2.     Did the District Court err when it found that the
arresting officer had probable cause to arrest Foley for driving or
being in actual physical control of a vehicle while under the
influence of alcohol?
                 Factual and Procedural Background

     On the evening of March 18, 1995, Highway Patrol Officer
Sharron Taggart (Taggart) responded to a report of a single-car
accident on Eagle Crest Road in Billings. When she arrived at the
scene, two sheriff's deputies were already present. An unoccupied
vehicle was straddling the road's edge with a nearly empty pint
bottle of vodka on the ground beside the driver's door.             Foley was
seated on the opposite edge of the road.           One of the deputies
informed Taggart that the owner of a nearby home had removed Foley
from behind the wheel of the vehicle and called the police.              The
office also informed Taggart that Foley did not live on that road.
     Taggart approached Foley and asked him to accompany her to her
patrol car. Foley was unable to stand up on his own so Taggart had
to help him. Once inside her patrol car, Taggart asked Foley if he
had been drinking.      He responded that he had drunk almost a pint.
Taggart then asked Foley to recite the alphabet.              Because his
response to this request was unsatisfactory, because he exhibited
a   pronounced   lack    of   balance,   and   because   he   had    trouble
understanding Taggart when she informed him that his vehicle could
not be moved without the aid of a wrecker, Taggart formally placed
Foley under arrest. Foley became agitated at that point and had to
be placed in handcuffs.       He was charged with driving or being in
actual physical control of a vehicle while under the influence of
alcohol, in violation of      §   61-8-401, MCA.
      Foley was convicted of the offense in Justice Court and
sentenced on September 5, 1995.          Foley appealed to the District
Court for trial de novo. On October 26, 1995, Foley filed a Motion
to Dismiss or Suppress and Brief wherein he claimed that he had not
been arrested upon the ways of this State open to the public.              He
further alleged that the arresting officer lacked probable cause to
believe that he was operating a motor vehicle while under the
influence of alcohol.
    An evidentiary hearing on Foley's motion was held on November
30, 1995. At the close of the hearing, the District Court denied
the motion.   On March 6, 1996, pursuant to a plea agreement, Foley
pleaded guilty to the offense.   However, Foley reserved his right
to appeal the District Court's denial of his motion.     Foley was
sentenced to six months in jail, with all but 48 hours suspended,
and fined $500. The court granted Foley's motion to stay execution
of sentence pending appeal.
                              Issue 1

          Did the District Court err when it concluded that
     Foley was driving or in actual physical control of a
     vehicle upon the ways of this State open to the public?


     Foley was charged with violating 5 61-8-401, MCA, which
provides in part:
     (1) It is unlawful and punishable as provided in 61-8-714
     and 61-8-723 for any person who is under the influence
     of:
          (a) alcohol to drive or be in actual physical
     control of a vehicle upon the ways of this state open to
     the public; . . .
     The District Court denied Foley's motion to dismiss in which
Foley claimed that he was not arrested on the ways of this State
open to the public and thus he had not violated 5 61-8-401, MCA.
The grant or denial of a motion to dismiss in a criminal case is a
question of law and our standard of review of a district court's
conclusion of law is plenary; we will review it to determine
whether the conclusion of law is correct.       City of Helena v.
Danichek (Mont. 1996), 922 P.2d 1170, 1172, 53 St.Rep. 767, 768
(citing State v. Hansen ( 1 9 9 5 ) , 273 Mont. 321, 323, 903 P.2d 194,
195).
      Foley contended in his motion to the District Court and again
on appeal to this Court, that he did not violate     §   61-8-401,MCA,
because the place where he was arrested is a private driveway and
not a way of this State open to the public.        Foley claims that
because the "driveway" is not paved, does not have street lights
and is posted with a "No Trespassing" sign, because the public is
not encouraged to use the driveway, and because the only history of
use by the public of the driveway is by delivery trucks, utility
company vehicles and trespassers, the driveway is not a way of this
State open to the public.
      In denying Foley's motion, the District Court concluded that
the place where Foley was arrested is a way of this State open to
the public because it is the way that the public accesses the two
residences on it and because it is called "Eagle Crest Road"
reasoning that " [mlost driveways don't have a name. . . aren't a
quarter of a mile long . . . [and] aren't called a road."
      The term "ways of this state open to the public" is defined at
§   61-8-101, MCA, which provides, in part:
      (1) As used in this chapter, "ways of this state open to
      the public" means any highway, road, alley, lane, parking
      area, or other public or private place adapted and fitted
      for public travel that is in common use by the public.
        It is not necessary for us to decide whether Eagle Crest Road
is a private driveway or a way of this State open to the public.
King Avenue West, the road upon which one must travel to reach
                                   5
Eagle Crest Road is undeniably a way of this State open to the
public.     Testimony at the evidentiary hearing established that
Foley's vehicle was not a four-wheel drive, off-road, all-terrain
vehicle and could not have climbed a hill and crossed ditches to
get to Eagle Crest Road.      There was no way for Foley to have
reached Eagle Crest Road other than by traveling on King Avenue
West.    Thus, Foley was driving or in actual physical control of a
vehicle upon a way of this State open to the public, namely King
Avenue West.
     Accordingly, we affirm the District Court and hold that the
court's denial of Foley's motion to dismiss was correct as a matter
of law.
                              Issue 2.

          Did the District Court err when it found that the
     arresting officer had probable cause to arrest Foley for
     driving or being in actual physical control of a vehicle
     while under the influence of alcohol?


        The District Court denied Foley's motion to suppress all
evidence obtained as a result of his arrest.        Foley contended in
his motion that the arresting officer lacked probable cause to
believe that Foley was operating a motor vehicle while under the
influence of alcohol.
        Our standard of review for a district court's denial of a
motion to suppress is whether the court's findings of fact are
clearly erroneous and whether those findings were correctly applied
as a matter of law.   State v. Williams   (1995),   273   Mont.   459,   462,
904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181,
188, 860 P.2d 89, 94).
     Probable cause is satisfied at the time of an arrest if the
facts and circumstances within the officer's personal knowledge, or
upon information imparted to the officer by a reliable source, are
sufficient to warrant a reasonable person to believe that the
suspect has committed an offense. Williams, 904 P.2d at 1022
(citing Santee v. State, Dept. of Justice, Motor Vehicle Div.
(1994), 267 Mont. 304, 307, 883 P.2d 829, 831; Jess v. State, Dept.
of Justice, MVD (1992), 255 Mont. 254, 261, 841 P.2d 1137, 1141).
     When Taggart arrived upon the scene, two sheriff's deputies
were already there. One of the deputies informed Taggart that the
owner of a nearby home had removed Foley from behind the wheel of
the vehicle. We have previously stated that probable cause should
be evaluated "on the basis of the collective information of the
police rather than that of only the officer who performs the act of
arresting."   Williams, 904 P.2d at 1022 (quoting Boland v . State
(19901, 242 Mont. 520, 524, 792 P.2d 1, 3).
     Taggart had been a Highway Patrol Officer for 12 years and in
that time she had made over 300 DUI arrests.    Prior to arresting
Foley, Taggart observed that FoLey's car was straddling the road's
edge and that a wrecker would be required to move it, that a
nearly empty pint bottle of vodka was near the driver's door of
Foley's car and that Foley was sitting on the opposite edge of the
road.   Taggart also observed that Foley's speech was slurred, he
could not stand up under his own power and he was confused. Based
on her personal observations, and the fact that Foley admitted to
Taggart that he had drunk almost a pint, it was reasonable for
Taggart to believe that Foley had been drinking.
       Foley claims that these facts were not sufficient for Taggart
to believe that he was driving under the influence.     He contends
that he could have gone off the road hours earlier and then decided
to drink the pint of vodka.
       In a similar case, McCullugh v. State (1993), 259 Mont. 406,
856 P.2d 958, a law enforcement officer observed McCullughls truck
in a ditch and McCullugh attempting to jack up the truck's back
end.     After talking to McCullugh, the officer concluded that
McCullugh was under the influence of alcohol and he placed
McCullugh under arrest. McCullugh later claimed that he had driven
into the ditch when his brakes went out and that he had then walked
to a friend's house where he planned to spend the night and
retrieve the truck in the morning. McCullugh contended that it was
not until he was at his friend's house that he had anything to
drink.    After drinking with his friend, McCullugh claimed that he
became concerned about his truck and went back to retrieve it.    It
was then that McCullugh was arrested.
       McCullugh contended that the arresting officer did not have
probable cause to arrest him for driving or being in actual
physical control of a vehicle while under the influence of alcohol.
In affirming the District Court, we stated that McCullughls story
was "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."
McCullush, 856 P.2d at 961. Thus we concluded that the information
available to the officer at the time of McCullugh's arrest was
sufficient to warrant a reasonable person to believe that McCullugh
was in physical control of his truck. McCullush, 856 P.2d at 961.
       So too in the instant case, Foley's story is not "the first or
most natural conclusion a reasonable person would reach" after
observing Foley's vehicle in a ditch with a nearly empty bottle of
vodka near the driver's door and Foley sitting on the side of the
road obviously intoxicated. If Foley had driven off the road hours
earlier as he claimed, the natural question would be: why didn't he
seek assistance at one of the nearby residences rather than sitting
there for several hours drinking almost a pint of vodka?
       Thus, we conclude that the information available to Taggart at
the time of Foley's arrest was sufficient to warrant a reasonable
person to believe that Foley was driving or in actual physical
control of his vehicle while under the influence of alcohol.
Accordingly, we affirm the District Court and hold that the court's
denial of Foley's motion to suppress was correct as a matter of
law.
       Af firmed.
