                              No.    91-573

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1992



DANIEL LEE JESS,
           Petitioner and Appellant,


STATE OF MONTANA, DEPARTMENT OF JUSTICE,
MOTOR VEHICLE DIVISION,
           Respondent and Respondent.


APPEAL FROM:       District Court of the Thirteenth Judicial District,
                   In and for the County of Stillwater,
                   The Honorable William J. Speare, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                   Gary R. Thomas, Thomas Law Off ice, Red Lodge,
                   Montana
            For Respondent:
                   Hon. Marc Racicot, Attorney General,
                   Jennifer Anders, Assistant Attorney General,
                   Helena, Montana
                   John Bohlman, Special Assistant Stillwater County
                   Attorney, Columbus, Montana


                                    Submitted on Briefs:   July 23, 1992

File
    $pv 1 2 1 9
             92                                 Decided:   November 12, 1992
    CC!3 m ; d
CLERKOFSUPREMECOURT
  STATE OF M O N T W

                                    Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Appellant Daniel Lee Jess appeals from an order of the
Thirteenth Judicial District Court, Stillwater County, denying his
petition for reinstatement of his driver's license pursuant to
5 61-8-403, MCA.
     We affirm.
     Three   issues   are   presented   to    this   Court    for   our
consideration.
     1.   Did the District Court err in holding that appellant has
the burden of proof for seeking reinstatement of his driver's
license following its suspension under   §   61-8-403, MCA?

     2.   Was there sufficient evidence in the record to support
the District Court's conclusion that the arresting officer had
reasonable grounds to suspect that appellant had been driving under
the influence of alcohol?
     3.   Did the officers have reasonable grounds to make an
arrest?
     On May 25, 1991, Daniel Lee Jess, accompanied by a friend,
drove Jess's pickup truck from Columbus to Rapelje to perform
contract work.     On Jess's return home from Columbus, he was
observed by another motorist who had followed him for a long
distance and who testified that Jess was driving erratically and
his vehicle was #'all over the road."   She stated that at one point
he started to veer off the road and nearly hit a bridge near Kaiser
Creek. She also testified that she saw the driver drink something,
but could not identify what it was.     When the witness arrived at
Columbus, she immediately went to the sheriff Is office and gave the
dispatcher the description of the pickup, the license plate number,
and reported that she had recognized Jess as the driver of the
pickup.     She also described what she believed to be erratic
driving.
     While the witness went to the sheriff's office, Jess and his
companion drove to a bar in Columbus and began drinking there. The
dispatcher radioed the information given by the witness to Officer
Woods.     Deputy Salte was in the dispatch office when the witness
made her complaint. Approximately five minutes later, the officers
located the pickup outside the bar.       Neither officer had seen
appellant drive his pickup truck.
     Following a discussion inside the bar, Officer Woods requested
that appellant come outside.    Officer Woods told appellant that a
witness had reported a drunken driver. After another conversation
ensued, Officer Woods requested that appellant accompany her in the
police car to the sheriff's office.   It is in dispute as to whether
Officer Woods demanded or requested that appellant go to the
sheriff's office.      Appellant did accompany the officer to the
sheriff's office.      Both officers observed that appellant had
slurred speech, bloodshot eyes, and was staggering, and concluded
that he was under the influence of alcohol. Officer Woods informed
appellant that if the witness did not sign a complaint against him,
then he would be returned to the bar.    Appellant believed that he
was arrested at this point and was compelled to go to the sheriff's
office.
       Upon arrival at the sheriff's office, there was a problem with
locating the witness and appellant was placed in a booking room.
Approximately 15 minutes later, they located the witness and she
signed a written statement.      Officer Woods then placed appellant
under arrest.      Appellant refused the breathalyzer test and his
license was immediately suspended for 90 days.
       Appellant filed for a reinstatement hearing which was held on
August 26, 1991.      On September 23, 1991, the court entered its
order and memorandum denying reinstatement of appellant's license.
Appellant appeals this decision.
                                   I.
          Did the District Court err in holding that appellant has the
burden of proof for seeking reinstatement of his driver's license
following its suspension under      61-8-403, MCA?

       Appellant raises a constitutional challenge to 5 61-8-403,
MCA.      He readily admits that this challenge was not raised in
District Court, nor was the Montana Attorney General properly
notified. Therefore, we will not discuss appellant's constitutional
challenge.
       As to the burden of proof issue, appellant contends that even
though a proceeding brought under       §   61-8-402, MCA, is civil in

nature,     the   determinations made   by    the   District   Court   are
traditional criminal issues in which the State always has the
burden of proof.     This is an issue of first impression before this
Court.
     Under Montana's implied consent law, a person who is arrested
for operating a motor vehicle while under the influence of alcohol
is considered to have given his consent to a breathalyzer test for
the purpose of determining the amount of alcohol in his blood.     A

person who refuses to consent to a breathalyzer test will face
immediate seizure of his driver's license and formal suspension of
his driving privileges by the Department of Justice.         Section
61-8-402 (3), MCA.

     Upon suspension of a driver's license for failure to take a
breathalyzer test, the individual may appeal to the district court
for review under g 61-8-403, MCA, which states:
          The department shall immediately notify any person
     whose license or privilege to drive has been suspended or
     revoked, as hereinbefore authorized, in writing and such
     person shall have the right to file a petition within 30
     days thereafter for a hearing in the matter in the
     district court in the county wherein such person resides
     or in the district court in the county in which this
     arrest was made. Such court is hereby vested with
     jurisdiction and it shall be its duty to set the matter
     for hearing upon 10 daysr written notice to the county
     attorney of the county wherein the appeal is filed and
     such county attorney shall represent the state, and
     thereupon the court shall take testimony and examine into
     the facts of the case, except that the issues shall be
     limited to whether a peace officer had reasonable qrounds
     to believe the person had been drivinq or was in actual
     phvsical control of a vehicle upon ways of this state
     open to the public, while under the influence of alcohol,
     druqs, or a combination of the two, whether the person
     was placed under arrest, and whether such person refused
     to submit to the test.       The court shall thereupon
     determine whether the petitioner is entitled to a license
    or is subject to suspension as heretofore provided.
    [Emphasis added.]
    We have stated that a hearing held under 5 61-8-403, MCA, is
"a civil proceeding, separate and distinct from a criminal trial
. . . .    Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d
1261, 1265.   During this civil proceeding, the judge is limited to
only reviewing the propriety of the suspension of the driver's
license for refusing to submit to a breathalyzer test.   The issues
are clearly defined by statute and require a lower burden of proof
than the criminal proceeding.    Section 61-8-403, MCA, limits the
inquiry to the following issues:
           (1) whether the arresting officer had reaso?zable
    grozmds 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.
Gebhardt, 775 P.2d at 1265.
     In a criminal proceeding for driving under the influence, the
judge or jury actually decides the ultimate issue, of whether,
beyond a reasonable doubt, the defendant had been driving or was in
actual physical control of a vehicle on the ways of this state open
to the public while under the influence of alcohol.   Gebhardt, 775
P.2d at 1265.   We have also stated that the ability to operate a
motor vehicle on a public highway is not a fundamental right, but
a revokable privilege that is granted upon complying with statutory
licensing procedures.   State v. Skurdal (1988), 235 Mont. 291, 767
P.2d 304.
     Unfortunately, 5 61-8-403, MCA, does not clearly state who has
the burden of proof in the civil proceeding.    Both parties cite to
numerous state jurisdictions to support their position.     Even so,
we believe that 5 26-1-401, MCA, is the applicable statute.       It
states the following:
          The initial burden of producing evidence as to a
     particular fact is on the party who would be defeated if
     no evidence were given on either side. Thereafter, the
     burden of producing evidence is on the party who would
     suffer a finding against him in the absence of further
     evidence.
We have previously interpreted this statute to mean that "the party
asserting a right in any case has the burden of proving each of the
material allegations stated in the complaint." McDonald v. Peters
(1954), 128 Mont. 241, 243, 272 P.2d 730, 731. The State's action
of immediately seizing the driver's license is authorized upon the
appellant's refusal to comply with the implied consent statute, and
review of the revocation is initiated only at the request of the
appellant. Section 61-8-402 and -403, MCA.     There is a presumption
of correctness to the State's action until otherwise shown to be
improper. Section 61-8-402, MCA.   Thus, it is the appellant who is
asserting the right to reinstatement of his driver's license by
filing a petition with the District Court. If he fails to file his
petition or produce any evidence, then the suspension remains in
effect.    The burden of proof falls upon the appellant to prove the
invalidity of the State's action, rather than require the State to
justify its act of revocation. We hold that the District Court did
not err in requiring that appellant have the initial burden of
proof.


     Was sufficient evidence in the record to support the District
Court's conclusion that the arresting officer had reasonable
grounds to suspect that appellant had been driving under the
influence of alcohol?
     Appellant claims that the officers did not have the requisite
"particularized suspicion" to investigate him.              In determining
whether an officer is justified in making an investigatory stop,
the State must prove the existence of a "particularized suspicion."
In the Matter of the Suspension of Driver's License of Blake
(1986), 220 Mont. 27, 712 P.2d 1338.          This can be accomplished by
proving "(1) objective data from which an experienced officer can
make certain inferences; and (2) a resulting suspicion that the
occupant    of    a    certain vehicle   is    or   has   been    engaged   in
wrongdoing."      Blake, 712 P.2d at 1340.      An officer has reasonable
grounds if       the   facts and   circumstances within          the personal
knowledge of the arresting officer would be sufficient to warrant
a reasonable person to believe that the defendant is under the
influence of alcohol. Gebhardt, 775 P.2d at 1265. In addition, we
have stated that an arresting officer may rely on information
conveyed by a reliable third person.    Boland v. State (1990), 242
Mont. 520, 792 P.2d 1.   In State v. Sharp (1985), 217 Mont. 40, 46,
702 P.2d 959, 962, the majority of the Court held that information
conveyed by a "citizen informant1' is considered presumptively
reliable.   In that case, the citizen informant reported a possible
DUI and gave the license number of the vehicle, its description,
and the direction it was travelling.      If an officer receives a
complete vehicle description, the officer has a particularized
reason to question a suspect. State v. Ellinger (1986), 223 Mont.
349, 352, 725 P.2d 1201, 1203.
     In this instance, the witness followed appellant's truck for
a considerable amount of time and observed the vehicle swerving on
the road, go partially off the road, and nearly hit a bridge.    The
witness reported to the dispatcher the license plate number, the
description of the truck, and that she recognized the driver as
appellant. She described the erratic driving and the direction the
pickup was heading.   She also stated that the passenger was wearing
a red hat.    The dispatcher relayed the information to Officer
Woods.   Deputy Salte testified that he was in the dispatcher's
office when the witness gave the information to the dispatcher.
The information was corroborated when, within five minutes, the
officers located appellant's vehicle parked at the bar.         At a
minimum, the citizen tip provided the officers with probable cause
to investigate.
       Upon entering the bar, Officer Woods located appellant, as
well as his friend who was wearing a red hat, and asked appellant
to step outside, to which he agreed.   At this point, both officers
observed that appellant had slurred speech, trouble keeping his
balance, and smelled of alcohol.   Appellant admitted to driving on
the road and he testified that he had had two beers to drink at the
bar.    We hold that there was sufficient evidence to conclude that
Officer Woods had reasonable grounds to suspect that appellant had
been driving under the influence of alcohol and had reasonable
grounds to detain him.
                                111.

       Did the officers have reasonable grounds to make an arrest?
A founded suspicion to stop for investigative detention may ripen
into probable cause to arrest through the occurrence of facts or
incidents after the stop.    Sharp, 702 P.2d 963.   For an arrest to
be valid, we must determine whether an officer had probable cause
to make an arrest.    This is accomplished by determining if at the
time of the arrest 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.     Ellinqer, 725
P.2d at 1202.
     Both officers testified that based upon their observations
they believed that appellant was under the influence of alcohol.
Appellant accompanied Officer Woods to the sheriff's office where
the officer spoke with the witness to confirm the information
relayed by the dispatcher.       At this point, Officer Woods believed
she had     probable   cause    and   placed   appellant   under    arrest.
Appellant    then   became     belligerent     and   refused   to   take   a
breathalyzer test.     We hold that Officer Woods had probable cause
to make the arrest.
     We affirm.




We concur:
