No. 88-515
I N THE SUPREME COURT O F T H E S T A T E O F MONTANA
1989
S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
ELWYM LAWRENCE P E T E R S O N ,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C a r b o n ,
T h e H o n o r a b l e R u s s e l l F i l l n e r , J u d g e presiding.
COUNSEL O F RECORD:
For A p p e l l a n t :
G a r y L. S p a e t h and J o h n H . Bohlman, Red Lodge, Montana
For R e s p o n d e n t :
Hon. M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
K a t h y Seeley, A s s t . A t t y . G e n e r a l , H e l e n a
M i c h a e l A l t e r o w i t z , C o u n t y A t t o r n e y ; K e n t E. Young,
Deputy County Attorney, Red Lodge, Montana
S u b m i t t e d on B r i e f s : Jan. 19, 1989
Decided: February 2 3 , 1 9 8 9
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Appellant Elwyn Lawrence Peterson appeals the judgment
of the Thirteenth Judicial District, Carbon County, finding
him guilty of driving or being in actual physical control of
a vehicle upon the ways of this state open to the public, in
violation of S 61-8-401 (1)(a), MCA.
Peterson was arrested on September 5, 1986, near
Silesia, Montana. Shortly after 7:00 a.m. that morning, a
motorist stopped at the weigh station located on 1-90 between
Billings and the exit to Silesia. The motorist notified GVW
Officer Rudy Gerke that there was "a drunk in an old brown
Dodge right behind him." Officer Gerke then went to the side
of the highway to look for the car. Approximately one minute
later the motorist yelled "Here he comes" and the officer saw
what he identified as a brown Dodge coming at him. While the
officer did not get a good look at the driver, he noticed the
driver appeared to be slumped over the steering wheel.
Officer Gerke managed to see that the first four numbers of
the license plate were 10-14, before he was forced to jump
into the ditch, out of the way of the oncoming car. The
officer observed the vehicle then veered and nearly went into
the median before passing from the field of view. Officer
Gerke then relayed the information he had to the Montana
Highway Patrol.
Shortly before 9:00 a.m. that morning, Mike Schmang, an
adult probation officer, noticed a brown car in the ditch
near Silesia. Officer Schmang notified the Carbon County
Sheriff's Office of the accident and then went to examine the
vehicle. Shortly thereafter, Montana Highway Patrol Officer
Lance Bourquin responding to Officer Gerke's report of a
drunk driver arrived at the scene. Officer Rourquin noted
the license plate number on the vehicle was 10-14696. Rased
upon Peterson's admission that he had been driving the
vehicle and his failure to pass field sobriety tests, Officer
Bourquin placed Peterson under arrest.
Peterson was subsequently convicted in Justice Court.
He appealed to the District Court which also found him
guilty. He now appeals the judgment of the District Court on
the ground that sufficient evidence did not exist to sustain
his conviction for driving or being in actual physical
control of a vehicle upon the ways of this state open to the
public.
Initially, we note our function on such an appeal is
whether there is substantial credible evidence "to support
the defendant's guilt beyond a reasonable doubt." State v.
Lonqacre (1975), 168 Mont. 311, 313, 542 P.2d 1221, 1222. We
find substantial credible evidence exists in this case to
sustain the conviction.
Peterson presents two arguments as to why we should
find he was unable to exercise sufficient control over the
vehicle to sustain his conviction. First, he was not the
driver of the vehicle on the trip from Billings to Silesia,
nor at the time it ran into the ditch. At trial Peterson
testified that one Robert "Fuzzy" Routon was giving him a
ride home from a party in Billings when a deer in the roadway
forced them into the ditch. After the accident Peterson
remained in the vehicle while Routon hitchhiked back to
Billings to get help to pull the vehicle out of the ditch.
Peterson then crawled from the back seat, where he had been
sleeping, to the front seat to wait for Routon and went back
to sleep. Peterson testified he was unable to obtain Routon
to testify at trial, because Routon was out of the state
looking for work.
Peterson's second argument is that he was not
physically in a position to actually control the vehicle when
the officers arrived and arrested him. He contends the
evidence shows the vehicle was off the highway, was turned
off, and he was not behind the steering wheel or in a
position to exert "actual physical control" over the vehicle.
Our examination of the record discloses several.
conflicts with these arguments. First, Peterson admitted on
two separate occasions that he was the driver of the vehicle.
Both Officers Schmang and Rourquin testified that Peterson
admitted at the scene of the accident that he was the driver
of the vehicle when it left the highway. Further, when
Peterson was processed at the Sheriff's Office he again
acknowledged he had been driving the vehicle. Both officers
also testified they did not see any evidence at the scene
that there had been anyone else there, prior to their
arrival.
The fact Peterson was able to obtain an affidavit from
Routon after the completion of the trial, stating he was the
driver of the vehicle at the time it left the highway, is not
convincing. This assertion directly conflicted with
Peterson's admission on two separate occasions before law
enforcement officers that he was the driver. In denying the
appel-lant's motion for a new trial, the District Court
examined the effect of the affidavit on the case. It found
that Peterson was not diligent in obtaining Routon's presence
for trial or in seeking a continuance when it was apparent he
would not be available for trial. Further, this evidence was
merely cumulative support of Peterson's contention at trial
that he was not the driver of the vehicle. When the evidence
presented at trial is conflicting,
[Ilt is the function of the trier of the
facts, in this case the trial judge, to
determine the credibility of the
witnesses and the weight to be given
their testimony and he may pick and
choose which of the witnesses are to be
believed from a consideration of all the
evidence.
Longacre, 542 P.2d at 1222.
Here the trial court had the testimony of three law
enforcement officers regarding a description of the manner in
which the vehicle was driven and where it came to rest. The
officers testified that Peterson made separate admissions
that he was driving the vehicle and that the vehicle belonged
to Peterson. The evidence showed that Peterson was unable to
pass field sobriety tests and had ingested both alcohol and
prescription drugs which react to alcohol. We find such
evidence constitutes substantial credible evidence sufficient
to support the judgment of the court.
Regarding Peterson's claim in his brief that he was not
in a position to exert "actual physical control" over the
vehicle, we find the evidence was to the contrary. Upon
approaching the vehicle, Officer Schmang testified he
observed the appellant in the driver's seat, slumped over to
the right, with his feet in the area of the pedals. The
vehicle was not running, but Peterson himself testified he
had the keys in his pocket.
Peterson contends this Court should follow the
decisions of other courts finding control over the vehicle is
lacking where the defendant pulls off the travelled portion
of the road and either turns off the vehicle or takes the
keys out of the ignition. State v. Zavala (Ariz. 1983), 666
P.2d 456; State v. Smelter (Wash.App. 1984), 674 P.2d 690;
State 7 . Bugger (Utah 1971), 483 P.2d 442. We decline to
accept such precedent as controlling, particularly under the
facts of this case. Rather, we look to Montana precedent for
when a person may be found to have actual physical control of
a vehicle. See, State v. Ruona (1958), 133 Mont. 243, 331
P.2d 6 1 5 ; State v. Taylor (1983), 203 Mont. 284, 661 P . 2 d 33.
In Taylor, the defendant was found stuck in a barrow pit off
a Billings street with the vehicle running and the lights on.
There the Court stated:
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 [sicl 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 phvsical control."
State v. Ruona, supra.
Taylor, 661 P.2d at 34.
Here Peterson was found in the driver's seat of a
vehicle which had run off the road, with the keys to the
vehicle in his pocket. In such a position he could regulate
the movements of the vehicle. Appellant attempts to counter
these findings by claiming he was lying down in the front
seat and was not in a position to exercise "actual physical
control." We find the evidence introduced at trial supports
a finding that the appellant was in the driver's seat, but
instead of slumping forward onto the steering wheel, he
slumped to his right onto the middle of the seat. It would
be ludicrous to rest the question of whether a person is in a
position to exercise control over a vehicle upon the luck of
a person as to the direction one falls when they "pass out."
Appellant further asserts this Court should endorse a
policy decision found in the Zavala case encouraging a
person, who believing his driving impaired pulls completely
off the highway, turns off the key and sleeps until sober
before proceeding. Such a responsible action should not
subject a person to the possibility of being arrested for
being in control, according to the appellant. Zavala, 666
We disagree. The better policy is that a person should
ascertain his ability to drive before climbing behind the
wheel and terrorizing the roadways of this state. Further,
the evidence does not support a finding that this was the
situation in the present case. Peterson acknowledged he had
left a party in Billings around 7 : 0 0 a.m. to go home to
Silesia, twenty-four miles away. Along the way, eyewitness
testimony established whoever was driving the car was
seriously impaired and a hazard to anyone on or near the
roadway. After driving over twenty miles in an impaired
state, the driver of the vehicle finally ended up stuck in
the ditch after running over a delineator post and off the
highway. There was no turnout or intersecting road at the
point where the vehicle left the roadway. Fortunately, no
one was injured. We agree with the State's brief that no
public policy exists which rewards that kind of luck.
The judgment of the District Court is
\
Justice
We concur: