Montana Attorney General Opinion 17-52

Opinion No. 52. Highway Patrol-Power of Arrest- Cities & Towns-Incorporated. HELD: Highway patrolmen are without authority to arrest intoxi- cated automobile drivers within the limits of an incorporated city or town. One resisting such an arrest cannot be guilty of resisting an officer. Mr. Leif Erickson County Attorney Sidney, Montana Dear Mr. Erickson: March 3, 1937. You have submitted the following state of facts to this office, asking 54 OPINIONS OF THE ATTORNEY GENERAL for an opinion: It appears that two persons were arrested for driving an automobile while intoxicated within the incorporated limits of a city or town, and these persons resisted the State Highway Patrolman in making said arrest, and that informations have been filed against them in the district court for resisting an officer. The Question being whether or not a high- way patrolman has power to arrest a person, driving an automobile while intoxicated, within the incorporated limits of a city or town. Section 1741.7 provides among other things, as follows: "For the purpose of this act, the following acts on the main or sec- ondary highways of the State of Montana outside of incorporated cities and towns, shall be deemed and declared menaces to the public health and safety. and constitute a crime punishable hy law as hereinafter provided: * * *. 11. Driving a motor or other ve- hicle while intoxicated." Section 1741.8 provides the pun- ishment for violation of any of the provisions of the above mentioned sections, or other provisions of the state motor vehicle laws, other than driving in a reckless manner or while intoxicated. Section 1741.9 provides the duties of patrolmen and authorizes them to make arrests in certain crimes com- mitted in their presence or when re- Quested by any peace officer as fol- lows: "The crimes of murder, assault with a deadly weapon, arson, burg- lary, grand larceny, kidnaping, illegal transportation of narcotics, or viola- tion of the Dyer act regarding the transportation of stolen automobiles, but in no event shall patrolmen be deemed police officers in making ar- rests in other offenses, and shall in felony offenses, cooperate with sher- iffs and other peace officers; pro- vided that such highway patrolmen shall have no authority and are ex- pressly forbidden to make arrest in labor disputes or in preventing vio- lence in connection with strikes, and shall not be permitted to perform any duties whatsoever in connection with labor disputes, strikes or boycotts, and shall not be permitted to congre- gate or act as a unit in one county to suppress riots or to preserve the peace." Section 1741.7 designates the crimes while Section 1741.8 prescribes the penalties. Section 1741.9 has reference to the duties of the highway patrol- men. and this section circumscribes their duties, and must necessarily refer to Section 1741.7 because Section 1741.8 does not enumerate the crimes but only provides for the punishment, and Section 1741.9 refers to the au- thority of the patrolmen by this lan- guage: "In addition to the above mentioned duties, the highway patrol supervisor and all patrolmen are au- thorized under this act to make arrests for the following offenses," and then certain felonies are described therein. The purpose of Section 1741.9 was to expressly limit the authority of the patrolmen, and particularly did the legislature fear that patrolmen may be used, either directly or indirectly, to break strikes and in labor disputes. Section 1746.2 was enacted in 1929, while the Highway Patrol Law and the sections last referred to were en- acted in 1933, and while the Patrol Act and Section 1746.2 are not in con- flict, yet, inasmuch as the legislature has expressly excepted incorporated cities and towns in Section 1741.7, and did not include offenses within a municipality as described and pro- vided in Section 1746.2, then it is evident that these patrolmen have no authority to make an arrest of an intoxicated automobile driver within an incorporated city or town. This opinion shall not be construed to mean that a patrolman does not have the right to sign a complaint and have a warrant issued for the arrest of intoxicated automobile drivers within incorporated cities,-only that the patrolman is without authority to act as a police officer in making the arrest. Nor is this opinion to be con- strued as holding that to drive and operate an automobile while intoxi- cated, within an incorporated city, is not a crime. The statute so declares it a crime and that statute has not been repealed. This interpretation of the statute simply points out the lack of authority for the patrolman to make an arrest, and a person resisting such an arrest cannot be guilty of re- sisting a police officer. OPINIONS OF THE ATTORNEY GENERAL 55 Therefore, it is my opinion that inasmuch as these patrolmen were not deemed to be police officers, and were without authority to arrest these per- sons for driving an automobile in an incorporated city or town, while in- toxicated, it follows that these persons charged in your district court, could not be guilty of resisting a police officer.