Traffic Violation Not Necessary for Montana DUI Investigatory Stop

In State v. Weer, recently decided by the Montana Supreme Court, Mr. Weer appealed the District Court’s decision to not reinstate his driver’s license. As we’ve discussed before, refusal to submit to a preliminary breath test in Montana results in the automatic suspension of your driver’s license. This is based on the Montana implied consent statute which says that a person driving in Montana has impliedly consented to give a breath test. A person who has had their license revoked under this statute can challenge the revocation in District Court, but they are limited to proving that the arresting officer did not have sufficient particularized suspicion to request the breath test.

In Weer’s case, a highway patrolman following him observed his vehicle swerve twice toward the centerline and then cross the centerline. At that point he initiated a stop based on suspicion of DUI, during which Weer refused to submit to the officer’s request for a preliminary breathalyzer test.

Weer challenged the revocation, claiming that the officer did not have sufficient particularized suspicion to initiate an investigative stop and conduct a DUI investigation. The District Court ruled against him after conducting an investigatory hearing.

The Montana Supreme Court reiterated the requirement that “to justify an investigatory stop of a motor vehicle, the State has the burden to show: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting particularized suspicion that the occupant of the motor vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” Also, the Court noted that “the question is not whether any one of [the petitioner’s] driving aberrations was itself ‘illegal’ but rather, whether [the officer] could point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”

Because this is a totality of the circumstances test, it does not matter whether the officer can point to one specific infraction. In this appeal, Weer argued that crossing on to the centerline was not a violation, therefore the officer lacked particularized suspicion. The Supreme Court agreed with the District Court and found that it is irrelevant whether Weer committed a specific traffic violation.

The take home lesson from Weer: even if you have committed no traffic violations, an officer may still initiate a traffic stop and require you to give a preliminary breath test.

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