No. 87-393
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
KENT LAVERN KEIL
Defendant and Appellant
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable Ronald D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Bozeman, Montana
For Respondent:
Honorable Mike Greely, Attorney General, Helena,
Montana
Betsy Brandborg, Assistant Attorney General,
Douglas Anderson, Pondera County Attorney, Conrad,
Montana
Submitted on Briefs: February 4, 1988
~ecided:MAR1 7 1988
Filed: MAR 1 7 1988
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Keil appeals a jury conviction for reckless
driving in attempting to elude a peace officer. On June 8,
1987, Keil was fined $300 and sentenced to thirty days in the
Pondera County jail, with all thirty days suspended. We
affirm.
Keil presents two issues for our review:
1. Does the offense of reckless driving as defined in
61-8-301(1) (b), MCA, require the use of a siren by a pursu-
ing highway patrolman?
2. Did the District Court abuse its discretion in
denying Keil's motion for acquittal?
On the night of May 8, 1986, highway patrolman Sam
Harris was driving north toward Conrad, Montana. Officer
Harris noticed the headlights of a southbound car approaching
him at high speed. The patrolman's radar detector clocked
the approaching car at 96 miles per hour.
As the car passed him, Officer Harris immediately
turned on his flashing lights and began his pursuit. The
patrolman saw the car's brake lights momentarily illuminate,
then go off as the car stretched its lead. One-quarter mile
after pursuit began, Officer Harris noticed beer cans, a
cardboard beer carton and fresh "spew marks" on the highway.
The debris had not been there prior to the car's passage.
During the chase, Officer Harris radioed the local
sheriff and learned that the car was registered to Dale and
Sherry Keil of Ledger, Montana. The sheriff contacted the
Keils, who stated that the car was probably being driven by
their son, Kent Keil.
Pursuit speeds reached 110 miles per hour. Officer
Harris testified that the Keil car "had more engine that I
had." Eventually, Officer Harris lost sight of the car in
the town of Brady. He abandoned the chase.
Officer Harris returned to the area of the pursuit and
retrieved several Rainier beer cans from the highway. Offi-
cer Harris drove to Conrad. He then proceeded toward Brady
by an alternate route. He again met the Keil car which was
now traveling slowly toward Conrad. The car's engine was
very low on oil and knocking. Officer Harris turned on his
flashing lights and the car stopped immediately. The driver
was Kent Keil.
Officer Harris cited Keil for speeding and reckless
driving by attempting to elude a peace officer. Keil pleaded
guilty to night speeding. However, he pleaded not guilty to
reckless driving. Keil was subsequently convicted by a jury
in justice court. He appealed to the District Court, where a
jury trial de novo again found him guilty.
Issue 1. Use of a siren.
Keil was convicted of violating S 61-8-301 (1)(b), MCA,
which states:
A person commits the offense of reckless
driving if he ... operates any vehicle
in willful or wanton disregard for the
safety of persons or property while
fleeing or attempting to - -from or
flee -
elude - peace officer who is lawfully in
-- a
pursuit and whose vehicle is at the time
in compliance with - requirements -
- the of
61-9-402. [Emphasis added.]
Section 61-9-402, MCA, states: " (1) A police vehicle
shall be equipped with a siren capable of giving an audible
signal and may, but need not, be equipped with alternately
flashing or rotating red or blue lights as specified herein."
(Emphasis added. )
Keil contends that the word "equipped" mandates the
"use" of a siren. Keil asserts that he is not guilty because
Officer Harris did not use his siren, which Keil argues is an
essential element of the offense.
Keil's argument is without merit. Section 61-9-402
simply requires that the police car be equipped with a siren.
The mere presence of the siren on the car does not mandate
its use. Such use is optional. As Officer Harris testified:
"The siren, for the most part, works to alert pedestrians or
somebody who is out of a vehicle. If you get more than 100
feet behind the car traveling at a very high rate of speed,
you cannot hear the siren at all."
By the plain language of the statute, we hold that the
use of a siren is not an essential element of an offense
.
under $ 61-8-301 (1)(b)
Issue 2. Denial of motion for acquittal.
After the State had presented its case, Keil moved for
a judgment of acquittal, which the court denied. Keil con-
tends that the motion should have been granted because Offi-
cer Harris did not use his siren. Keil further asserts that
he never saw the flashing lights.
Keil's motion was without merit. Such a motion may only
be granted where there is - evidence upon which the trier of
no
fact could base a verdict of guilty. Section 46-16-403, MCA;
State v. Matson (Mont. 19871, 736 P.2d 971, 974, 44 St-Rep.
In the instant case, Officer Harris testified that his
pursuit lights are high-intensity strobes which flash red,
white and blue. The State also presented a police officer
from Conrad who saw Officer Harris's flashing lights from two
miles away.
Furthermore, the State presented two passengers who
were in Keil's car during the pursuit. One passenger admit-
ted tossing a Rainier box out of Keil's car in the area of
the pursuit. Both passengers testified that Keil was speed-
ing. This evidence, combined with the flicker of Keil's
brake lights when Officer Harris turned on his flashing
lights, was sufficient to convince the jury of Kei-1's guilt.
Based on the State's presentation of evidence, we hold
that the District Court properly denied the motion.
Affirmed.
We concur: