                                          No. 04-257

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 148


GREGORY LYNN HAYES,

              Petitioner and Appellant,

         v.

THE STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         The District Court of the Nineteenth Judicial District,
                     In and For the County of Lincoln, Cause No. DV 2003-136,
                     Honorable MichaelC. Prezeau, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     William A. Douglas, Douglas Law Firm, Libby, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Ilka Becker,
                     Assistant Attorney General, Helena, Montana


                                                        Submitted on Briefs: February 2, 2005

                                                                   Decided: June 14, 2005


Filed:


                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Gregory Lynn Hayes (Hayes) appeals from the order entered by the Nineteenth

Judicial District Court, Lincoln County, on January 27, 2004, concluding that Hayes was

arrested for driving under the influence of alcohol on a “way of this state open to the public”

and denying his petition challenging the suspension of his driver’s license. We affirm the

order of the District Court.

¶2     We address the following issue:

¶3     Did the District Court err in concluding that a business parking lot was a “way of this

state open to the public” pursuant to § 61-8-101(1), MCA?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     In the early morning hours of October 24, 2003, Libby City Police Officers David

Bower (Officer Bower) and Matt White (Officer White) observed a person lying on the

ground approximately eight feet away from an idling pickup in the parking lot of the Caboose

Restaurant and Lounge (Caboose). In the process of attending to the prone man and

determining he had no connection to the idling pickup, Officer White approached the pickup

and found an intoxicated Hayes sitting at the steering wheel. Further investigation led to the

officers’ request that Hayes submit to a breath test and field sobriety tests. However, Hayes

refused to submit to either. Hayes was then placed under arrest and processed for driving

under the influence of alcohol (DUI). Hayes’s driver’s license was also seized for violation

of the implied consent law.




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¶5     On November 3, 2003, Hayes filed a petition challenging the license suspension.

Hayes claimed that he did not violate the implied consent law because the parking lot of the

Caboose was privately owned and did not constitute a “way of this state open to the public”

pursuant to the provisions of § 61-8-101, MCA.

¶6     The lot on which the Caboose is located has a triangular shape and is bounded on its

southwest side by Highway 2. On its northern side, along which the Caboose building sits,

runs an old, abandoned county road. Generally, customers of adjoining businesses do not

park in the Caboose parking lot, nor do people use the parking lot to access the county road

from Highway 2, because a fence behind the Caboose restricts such access.

¶7     However, the Caboose is not an exclusive, private club and customers do not need

permission to park in the lot. The parking lot is open to all members of the public who want

to patronize the Caboose. There are no “private property” or “no trespassing” signs posted.

While the Caboose parking lot is unpaved and has a rough surface with potholes, a vendor

is permitted to sell flowers and also permitted to sell Christmas trees during the holiday

season in the lot.

¶8     The District Court held a hearing on Hayes’s petition on December 12, 2003.

Following briefing by both parties, the District Court entered an order denying Hayes’s

petition on January 27, 2004. Hayes appeals therefrom.

                               STANDARD OF REVIEW

¶9     In reviewing a district court’s conclusions of law, our standard of review is plenary,

and this Court must determine whether the District Court’s conclusion that a business


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parking lot was a “way of the state open to the public” is correct. State v. Feldbrugge, 2002

MT 154, ¶ 14, 310 Mont. 368, ¶ 14, 50 P.3d 1067, ¶ 14.

                                       DISCUSSION

¶10    Did the District Court err in concluding that a business parking lot was a “way of

this state open to the public” pursuant to § 61-8-101(1), MCA?

¶11    Montana’s implied consent law provides that:

       A person who operates or is in actual physical control of a vehicle upon ways
       of this state open to the public is considered to have given consent to a test or
       tests of the person’s blood or breath for the purpose of determining any
       measured amount or detected presence of alcohol or drugs in the person’s
       body.

Section 61-8-402(1), MCA. This statute further directs an officer to immediately seize the

driver’s license of any driver who refuses to submit to a blood, breath, or urine test. Section

61-8-402(4), MCA. Section 61-8-403, MCA, allows the driver to petition the district court

for a hearing to determine whether the license suspension is proper. In such a proceeding,

the driver has the burden of proof. Gentry v. State, Dept. of Justice, Motor Vehicle Div.

(1997), 282 Mont. 491, 494-95, 938 P.2d 693, 695.

¶12    In Santee v. State, Dept. of Justice, Motor Vehicle Div. (1994), 267 Mont. 304, 306-

07, 883 P.2d 829, 831, this Court explained the issues at the hearing are limited to:

       (1) whether the arresting officer had reasonable grounds to believe the
       following:
       (a) that the petitioner had been driving or was in actual physical control of a
       vehicle;
       (b) that the vehicle was on a way of this State open to the public; and
       (c) that the petitioner was under the influence of alcohol;
       (2) whether the individual was placed under arrest; and
       (3) whether the individual refused to submit to a chemical test.


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Santee, 267 Mont. at 306-07, 883 P.2d at 831 (citing Jess v. State, Dept. of Justice, Motor

Vehicle Div. (1992), 255 Mont. 254, 258-59, 841 P.2d 1137, 1140, and Gebhardt v. State

(1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265.)

¶13    As he did in the District Court, Hayes asserts that he did not violate Montana’s

implied consent law because, at the time of his arrest, his vehicle was not located on a “way

of this state open to the public” pursuant to § 61-8-101(1), MCA. He argues that the

Caboose parking lot does not qualify as a “way of this state open to the public,” because the

only people that utilize the rough and unpaved parking lot are customers of the Caboose.

Therefore, the officers had no legal right to request a breath sample in this location.

¶14    The statute provides as follows:

       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.

Section 61-8-101(1), MCA.

¶15    Specifically, Hayes contends that because areas such as a “parking area not adapted

and fitted for public travel” or “parking area not in common use by the public” are not listed

within the statute, the legislature intended to limit the scope of the statute. He reasons

therefrom that the operation of a vehicle within such areas by a person who is under the

influence is not encompassed within or prohibited by the statute.

¶16    The State argues that the Caboose parking lot is a “way of this state open to the

public” under § 61-8-101(1), MCA, despite the fact that the Caboose parking lot was in poor

shape. The State argues the parking lot was nonetheless adapted and fitted for public travel


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and in common use by members of the public patronizing the Caboose. It notes that the

parking lot was also used by flower and Christmas tree vendors, thus encouraging members

of the community to enter the parking lot.

¶17   Our prior cases interpreting § 61-8-101(1), MCA, have considered private parking lots

and private roads. In City of Billings v. Peete (1986), 224 Mont. 158, 162, 729 P.2d 1268,

1270-71, the defendant argued that the privately owned parking garage in which defendant

had operated a motor vehicle and was arrested for DUI was not a “way of this state open to

the public.” We held:

      [T]he Northern Hotel’s parking garage not only has a history of use by the
      public, the public is encouraged to use the facility. The facility is obviously
      fitted for public travel and in common use by the public. It is thus covered by
      Sections 61-8-101(1) and 61-8-401(1)(a), MCA.

Peete, 224 Mont. at 162, 729 P.2d at 1270-71.

¶18   In State v. Weis (1997), 285 Mont. 41, 44-45, 945 P.2d 900, 902-03, we addressed the

private nature of the road upon which the defendant was arrested for DUI:

      [T]he fact that Boulder Lane is located on private easements, is privately
      maintained, and is of limited use is not dispositive. This lane provides access
      to three residences from a paved county road. Boulder Lane is a gravel, one-
      lane roadway and, as such, it is fitted and adapted for public travel. In fact,
      members of the public who are lost, curious or who have a purpose in going
      to the residences often use this lane in common with the residents who own
      and maintain it. Indeed, Weis, a member of the public, was using the road for
      travel on a visit to one of the private residences at the time he committed his
      offense. Moreover, the public is not impeded, restricted or prohibited in any
      way from traveling on Boulder Lane.

Weis, 285 Mont. at 44-45, 945 P.2d at 902-03.




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¶19    Finally, in Santee, this Court applied § 61-8-101(1), MCA, to a privately owned

parking lot which had limited access and posted warnings. We held:

       [T]he American Bank parking lot is posted with signs stating that it is a private
       lot and violators will be towed. Testimony revealed that the lot is commonly
       used by members of the public who are patrons of nearby taverns rather than
       bank customers. The only access to the lot is by an alley, but this alley and the
       American Bank parking lot are in the middle of an active Livingston business
       district. We hold that the American Bank parking lot is a parking area fitted for
       public travel and in common use by the public.

Santee, 267 Mont. at 310, 883 P.2d at 833.

¶20    The fact that the Caboose parking lot is unpaved and has potholes is inconsequential

here. In Weis, 285 Mont. at 44-45, 945 P.2d at 902-03, we concluded that Boulder Lane, a

gravel roadway, constituted a way of state open to public. Despite its poor condition, the

Caboose parking lot is adapted and fitted for public travel and is in common use by the

public, given its history of use by the public. Patrons of the Caboose park in the lot, and

vendors sell from the parking lot, thereby encouraging members of the public to use the lot.

¶21    Based upon the foregoing authority, we hold the District Court did not err in

concluding that the Caboose parking lot is a parking area fitted for public travel and in

common use by the public, and is within the definition of “ways of this state open to the

public” contained in §§ 61-8-101(1) and 61-8-402(1), MCA.

¶22    Affirmed.

                                                   /S/ JIM RICE




We Concur:

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/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER




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