NO. 82-384
I N THE SUPREME COURT OF THE STATE OF MONTANA
1983
- -
THE STATE OF M O N T A N A ,
Plaintiff and Respondent,
VS.
H A R R Y ADDISON TAYLOR,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of the Thirteenth J u d i c i a l District,
I n and f o r t h e County of Yellowstone
Honorable Diane Barz, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
B e r g e r Law F i r m , Billings, Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Harold F. Hanser, County A t t o r n e y , B i l l i n g s , Montana
S u b m i t t e d on b r i e f s : February 10, 1983
Decided: March 3 1 , 1 9 8 3
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Harry Addison Taylor was convicted July 28, 1982, of
being in actual physical control of a motor vehicle upon the
highways of the State of Montana while under the influence of
alcohol, a misdemeanor offense pursuant to section
61-8-401(1) (a), MCA. Taylor now appeals that conviction. We
affirm.
Deputy Richard Seibert responded to a call received by
the Yellowstone County Sheriff's Department on October 16,
1981, reporting a vehicle off the road on 38th Street West in
Billings, Montana. At the scene, Deputy Seibert observed a
vehicle in the borrow pit with its engine running and lights
on. He approached the vehicle and found the defendant, Harry
Taylor, slumped over the steering wheel. The transmission
was in drive, but the vehicle was immobile because it was
stuck in the borrow pit.
Deputy Seibert roused Taylor, who was either asleep or
"passed-out," and placed him under arrest. Although no field
sobriety tests were performed, Seibert later testified that
in his opinion, Taylor was under the influence of alcohol.
Seibert transported Taylor to the Highway Patrol Office where
a taped interview was conducted. Taylor was charged with
d.riving a vehicle while under the influence of alcohol, to
which he pled not guilty in Justice Court.
The Yellowstone County Attorney then filed a complaint
January 26, 1982, charging Taylor with being in actual
physical control of a motor vehicle upon the highways of the
State while under the influence of alcohol. Trial was held
in Justice Court on March 22, 1982, and Taylor was found
guilty.
The Justice Court stayed Taylor's sentence pending an
appeal to the Thirteenth Judicial District Court of the State
of Montana. A nonjury trial was held in the District Court
on June 16, 1982. Taylor was again found guilty of the
misdemeanor. He was sentenced on August 12, 1982, to pay a
fine of $250.00.
Deputy Seibert, Officer Thomas Carranco of the Montana
State Highway Patrol and Les Muhlbeier, Assistant County
Surveyor for Yellowstone County, testified for the State at
the District Court trial. The defense presented no witnesses
or testimony.
Officer Carranco arrived at the scene shortly after
Deputy Seibert. He testified at trial that in his opinion,
Taylor was under the influence of alcohol. Further, he
testified that the car in which Taylor was found was not
totally in the borrow pit. The left rear bumper and part of
the fender were "somewhat over on the blacktop."
Mr. Muhlbeier prepared a map for trial illustrating that
the county right-of-way extends approximately eighteen feet
past the pavement of the road. The map was admitted as an
exhibit for illustrative purposes only. Upon questioning by
the court, Mr. Muhlbeier testified that the "borrow pit area
right-of-way" in which the car was found is dedicated to
Yellowstone County and the public.
In his appeal of his conviction, Taylor presents this
Court with the following issues for review:
1. Was Taylor in "actual physical control" of the motor
vehicle while it was stuck in the borrow pit and hence
immobile?
2. Did the State of Montana prove beyond a reasonable
doubt that the motor vehicle was upon the highways of the
State of Montana?
3. Are the District Court's findings of fact and
conclusions of law adequate?
"Actual physical control" as it is used in section
61-8-401 (1)(a), MCA, was defined by this Court in State v.
Ruona (1958), 133 Mont. 243, 248, 321 P.2d 615, 618.
". . . if a person has existing or present bodily
restraint, directing influence, domination or
regulation, of an automobile, while under the
influence of intoxicating liquor he commits a
misdemeanor . . ."
We also specifically held movement of the vehicle to be
unnecessary.
Many other courts have since adopted the same
definition. See Kansas City v. Troutner (1976 Mo. APP.), 544
S.W.2d 295; State v. Ghylin (1977 N.D.), 250 N.W.2d 252;
Hughes v. State (1975 Okl. Cr.) , 535 P.2d 1023; Commonwealth
v. Kloch (1974), 230 Pa. Super. 563, 327 ~ . 2 d375; and State
v. Bugger (1971), 25 Utah2d 404, 483 P.2d 442.
Further, numerous courts have held a motorist to be in
actual physical control of a vehicle while asleep or passed
out behind the steering wheel. State v. Wilgus (1945 Ohio
Com. 1 . 17 Ohio Supp. 34; State v. Webb (1954), 78 Ariz.
8, 274 P.2d 338; Commonwealth v. Kloch, supra; Kansas City v.
Troutner, supra; and State v. Graves (1977), 269 S.C. 356,
237 S.E.2d 584. In so holding, the courts have viewed the
motorist as being in a position to regulate the vehicle's
movements (Kansas City v. Troutner, supra; Commonwealth v.
Kloch, supra), or as having the authority to manage the
vehicle (State v. Wilgus, supra) .
We agree and apply the same analysis to the facts now
before us. Just as a motorist remains in a position to
regulate a vehicle while asleep behind its steering wheel, so
does he remain in a position to regulate a vehicle while
asleep behind the steering wheel of a vehicle stuck in a
borrow pit. He has not relinquished regulation of or control
over the vehicle. It does not matter that the vehicle is
incapable of moving. Movement of a vehicle is not required
for "actual physical control." State v. Ruona, supra. We
affirm the District Court's conclusion that Taylor was in
actual physical control of his vehicle for the purposes of
section 61-8-401 (1)(a), MCA.
Defendant's second and third issues axe meritless. The
State of Montana sought to prove Taylor was on the highways
of the Sta.te at the time of his arrest through the testimonv
of the Assistant Yellowstone County Surveyor, Mr. Muhlbeier .
Mr. Muhl.beier testified:
"(2. This map indicates there is 18 feet distance
between where the pavement ends and the
right-of-way of the County extends?
"A. Yes, approximately 18. It is possibly-- The
pavement may vary within a foot or so, but it would
be approximately 18 feet.
"THE COURT: Mr. Muhlbeier, as County Surveyor, can
YOU tell the Court who owns what is called the
'borrow pit area right-of-way'?
"A. It is dedicated to Yellowstone County. Poly
Vista Subdivision, which is filed in the Clerk &
Recorder's Office, has dedicated the right-of-way
- - public
to the . . ."(emphasis supplied)
"Highway" is defined in section 61-1-201, MCA, as:
". . . the entire width between the boundary lines
of every publicly maintained way when any part
thereof is open to the use of the public for
purposes of vehicular travel, except that for the
purpose of chapter - - - -term also includes ways
8 the
which - -been or shall - dedicated - public
ha= - be to
use. " (emphasis supplied)
-
Taylor was charged under Chapter 8 of Title 61. The
testimony of Mr. Muhlbeier elicited by both the attorney for
the State and the District Court Judge clearly proved that
the borrow pit in which Taylor was stuck had been dedicated
to public use. It is therefore a "highway" as that term is
used in section 61-8-401(1) (a), MCA.
Finally, defendant complains that the District Court's
findings and conclusions are inadequate because they refer to
a non-existent stipulation as to Mr. Kuhlbeier's
qualifications and to a plat which was never admitted into
evidence. Defendant failed to object to Mr. Muhlbeier
testifying, failed to question him regarding his
qualifications and failed to cross-examine. The reference to
the non-existent stipulation is therefore harmless error.
The plat referred to in the findings and conclusions is
obviously the map drawn by Mr. Muhlbeier and introduced for
illustrative purposes only.
The defendant's conviction is affirmed.
We concur: