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Bush v. Mt Department of Justice11/12/1998
18 The State also argues that under our holding in McCullugh, Deputy Power had no duty to make any inquires which would either verify Bush's statements or rule out Bush's story as a plausible explanation for the cause of the accident. McCullugh, 259 Mont. at 410, 856 P.2d at 595-60. This argument is unpersuasive, because the result in McCullugh is distinguishable on its facts from the case sub judice. In McCullugh, the plaintiff's explanation that the brakes on his truck had gone out while driving to a friend's house hours before, and that he had only begun drinking in the interim between the time he abandoned the vehicle and when he returned to it sometime later, was never communicated to the arresting officer. Because McCullugh first proffered this explanation during proceedings before the district court, the arresting officer could not have taken any of that information into account in determining whether probable cause existed at the time of the arrest.
19 In contrast, Bush relayed to Deputy Power the reason for the condition of his vehicle immediately upon Deputy Power's arrival at the scene. Bush also volunteered the fact that he and his passenger had consumed a couple of beers while sitting in the vehicle subsequent to the accident. While Deputy Power was not necessarily required to accept this explanation on its face, neither is he allowed to wholly disregard it when the other facts and circumstances of the situation make this explanation appear plausible. In particular, the fact that Bush did not appear by his movements or speech to be impaired in any way, and that Deputy Power admitted Bush did not smell strongly of alcohol, would mitigate against a finding of probable cause to arrest Bush for DUI unless some other indicia of intoxication were present. Since Deputy Power declined to perform any field sobriety tests, the record does not reflect any such indicia in this case.
20 In Hulse, this Court recognized that an investigative stop can take on the quality of an escalating situation leading to probable cause based on additional information gleaned by the law enforcement officer during the course of the investigation. Hulse, 40. By the same reasoning, however, additional information obtained during the investigative process can also have the effect of eliminating probable cause to arrest for DUI, even where a valid particularized suspicion existed which would have initially justified the stop.
21 There is some discrepancy in the record regarding whether Deputy Power noted the presence of the four empty beer containers in the vehicle prior or subsequent to the time of Bush's arrest and whether that fact could have been relied upon by Deputy Power in determining if he had probable cause to arrest Bush. We note that the record is not clear on this point. However, this fact is not crucial to our analysis, because the presence of the containers comports with Bush's explanation of events, and so neither supports nor contradicts a conclusion that Bush had been driving while under the influence of alcohol for purposes of generating probable cause to arrest him.
22 Because our review of the record convinces us that Deputy Power did not have probable cause to arrest Bush at the time the breathalyzer sample was requested, we hold that Bush's driver's license was not properly seized pursuant to § 61-8-402, MCA, and the decision of the District Court is reversed on those grounds.
CHIEF JUSTICE TURNAGE and JUSTICES GRAY, NELSON, REGNIER, TRIEWEILER and LEAPHART concur.
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