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Bush v. Montana Dept. of Justice11/12/1998
APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
Argued: June 30, 1998
Submitted: June 30, 1998
. Brian W. Bush (hereinafter Bush) appeals the ruling of the Sixteenth Judicial District Court, Custer County, denying his petition for reinstatement of his driver's license. We reverse.
ISSUE
. Did the District Court err in denying Bush's petition for reinstatement of his driver's license under § 61-8-403, MCA?
BACKGROUND
. On April 4, 1997, at approximately 9:30 p.m., Deputy Sheriff David Power observed a set of swerving car tracks on the highway and followed them to a car stopped in a borrow pit off the shoulder of the road. It was snowing that evening and the highway was covered with a blanket of snow. When the deputy pulled over to investigate, the driver of the vehicle, now known to be Bush, exited the vehicle and met Deputy Power in the roadway.
. Bush explained to Deputy Power that he had been out test-driving his vehicle after performing some mechanical work on it, when a mechanical failure of unknown origin caused him to lose control of the vehicle and slide off the road. Bush also explained to Deputy Power that he and his passenger had been sitting in the vehicle for approximately forty-five minutes discussing where would be the best place to walk in search of assistance. During this same time, Bush and his passenger each consumed approximately two beers from an 18-pack of beer that Bush had in the vehicle.
. While Bush and Deputy Power were conversing, Deputy Power detected the smell of alcohol on Bush and directed Bush and the passenger in Bush's vehicle to get into the back of the police car. Deputy Power did not perform any field sobriety tests on Bush before driving him to the police station.
. At the police station, Deputy Power read the implied consent advisory form to Bush and requested that Bush undergo a breathalyzer test. Bush refused, whereupon his driver's license was seized. Deputy Power later drove Bush back to the abandoned vehicle so that Bush could retrieve his checkbook and post bail, at which time Deputy Power also seized four empty beer cans from inside the vehicle.
STANDARD OF REVIEW
. A district court's denial of a petition for reinstatement of a driver's license is reviewed by this Court to determine whether the district court's findings of fact are clearly erroneous and whether its Conclusions of law are correct. Hulse v. State, Dep't of Justice, 1998 MT 108, 14, 961 P.2d 75, 14, 55 St.Rep. 415, 14. A court's findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Interstate Prod. Credit Ass'n v. De Saye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.
Discussion
. When reviewing the suspension of a driving license under Montana's implied consent law, the district court is limited to considering the three issues set forth in § 61-8-403(4)(a), MCA, which are whether: "(i) a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two; (ii) the person was placed under arrest; and (iii) the person refused to submit to the test or tests."
. Historically, this Court has not been entirely clear or consistent
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