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Judge Hears Arguments On Whether Drunk Driver Was Illegally Pulled Over

Everyone admits that Dolan Tuss was drunk when Havre police pulled him over on Aug. 2, 2018. Even his lawyer.

The argument is over whether Tuss was pulled over illegally, therefore making all evidence of his drunkenness legally worthless.

At the heart of the case is what fits within the definition of reasonable suspicion, which police officers need to pull over a vehicle.

Havre Officer Brandon Olson testified that before pulling Tuss over, he didn’t see him break any traffic laws. He pulled him over because someone reported that a man driving a black Ford pickup with temporary tags was driving drunk. The officer also knew that someone was willing to sign a statement.

Once the officer pulled him over, it was clear that Tuss was drunk — “odor, slurred speaking, open containers, slow deliberate movement.” But that’s what this case is about.  

On Tuesday afternoon, District Judge Kaydee Snipes Ruiz heard arguments from Tuss’ lawyer, Brian  Lilletvedt, that all evidence of Tuss’ drunkenness on that August night should be thrown out, and therefore the case with it, because the officer illegally pulled over his client.

The judge also heard from Tamara Barkus, who argued for the city, that the officer was within the law when he pulled over Tuss, also citing legal precedent. The greatest support for the stop, however, was Tuss’ drunkenness and the danger he posed to the public, Barkus has said.

The case is an appeal from City Court, where on March 7 Tuss pleaded guilty to aggravated DUI-third offense. 

Snipes Ruiz did not set a date for when she’d rule on whether to suppress all evidence of Tuss’ drunken condition. She will look over further evidence and consider the arguments, then make her ruling.

Two of the people who testified Tuesday were the Chester woman who called police on Tuss, and her brother, the Malta man who testified that he saw Tuss and someone else, a friend, stumbling around and behaving drunk while waiting to check out at the Town Pump convenience store on First Street. The man told his sister to call police because his phone was in the vehicle with his sister. But he was nearby and testimony indicates he is heard in the background of the call.

Officer Brandon Olson, right, testified during Tuesday’s hearing on whether to suppress the evidence of Dolan Tuss’ (far left) drunk driving. (Paul Dragu, Herald photo)

The problem, Lilletvedt argues, is that the person who called the police did not witness Tuss behaving drunk. Her brother did. But she’s the one who called police and that’s where things get muddled.

The term “anonymous caller” had been loosely used by the defense to label the woman and help make the point that, as legal precedent (State v. Lee) says: “An anonymous citizen-informant’s mere statement of DUI, coupled with a physical description of the vehicle and its current whereabouts, fails to give the officer particularized suspicion to perform an investigative stop of the vehicle.”

Lilletvedt’s point is based on what he argues is the legal precedent that says officers have a three-part test to determine if they can legally pull someone over based on a citizen’s report: The informant must identify themselves; the informant’s report must be based on personal observation; and the officer’s observation needs to corroborate what the informant reported.

Barkus has argued in court briefs that the caller wasn’t anonymous because she identified her brother as the true reporting party.

The woman, however, during her sometimes antagonistic testimony, told Lilletvedt t that she did identify herself — she told the dispatcher her name. She also said that although she didn’t see Tuss in the store she saw, from her vehicle, Tuss and his friend behaving drunk once they were outside. The woman said she saw Tuss stumbling and staggering to his pickup.

She also said Tuss’ friend had a hard time grabbing the door handle. She said her brother repeatedly and firmly told Tuss to let him drive his truck home or to call a cab. If he didn’t, he’d call the police.

Tuss’ response, according to the woman and her brother, included profanity. He then sped out of the parking lot, “blazed through a stop sign,” and fishtailed onto Second Street, the woman said.

Barkus asked the man how in one word he would describe Tuss’ condition that night.

“Wasted,” he said.

Police moved quickly. The officer hopped in his patrol vehicle while dispatch was still on the phone with the woman. Testimony revealed that dispatch received the call at 12:12 a.m. and by 12:14 a.m. Tuss had been pulled over in an alley by Eighth Avenue.

The officer only knew a few things: a description of the vehicle, the location from which it took off, the fact that it had a temporary license plate, and that the complainant was willing to sign a statement.

In her closing argument, Barkus said the requirements for reasonable suspicion were met. The woman provided identification, she witnessed Tuss’ drunkenness once he stumbled outside, and most importantly, police verified Tuss’ condition and removed a safety hazard from the streets.

Email Paul at editor@havreherald.com

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