No. 90-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent, "a3g
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APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Attorney at Law, Bozeman, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana
Michael Salvagni, Gallatin County Attorney,
Bozeman, Montana
Gary Balaz, Deputy Gallatin County Attorney,
Bozeman, Montana
Submitted on Briefs: January 17, 1 9 9 1
Decided: February 12, 1991
Filed: CUP
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Justice John Conway Harrison delivered the Opinion of the Court.
Steven R. Palmer appeals from an ~ p r i l10, 1990, judgment of
the ~istrictCourt of the Eighteenth ~udicial~istrict,Gallatin
County, finding him guilty of recklessly eluding a peace officer
and operating a motor vehicle under the influence of alcohol. We
affirm.
Appellant presents two issues:
1. Was the evidence sufficient to find Palmer guilty of
recklessly eluding a police officer?
2. Was the evidence sufficient to find Palmer guilty of
driving under the influence of alcohol?
I
This case involves a fourteen-mile high speed car chase by
three police officers, reminiscent of a ''Dukes of Hazzard1I
television episode. At approximately 2:30 a.m. on September 11,
1988, Officer David Reynolds of the Gallatin County Sheriff's
Department observed a car traveling west on U.S. ~ighway191, also
known as Huffine Lane, near the Main Mall in Bozeman, Montana. A
radar reading showed the car to be going 68 miles per hour in a 45
miles per hour speed zone. Reynolds, who was proceeding east,
switched on his emergency lights as the car approached. The car
went by him, and Reynolds, with his lights and siren on, turned
around in order to pursue the speeding car. Reynolds could see
that the car was a dark, full-sized, older, American-make car.
The car accelerated, temporarily lost control as it veered off
the right-hand side of the road, and continued westbound.
Reynolds, traveling at speeds from 85 to 95 miles per hour, tried
to overtake the car, yet the car continued to extend the distance
between them. Rain mixed with snow was falling, and Reynolds found
that if he attempted to increase his speed, his vehicle would
hydroplane. Reynolds testified that the car ahead was reaching
speeds in excess of 100 miles per hour.
Reynolds kept visual contact with the taillights of the
speeding car until it swung north on Jackrabbit Lane. As soon as
Reynolds turned north, he could see the taillights again. No other
cars were on the highway at that point.
When he realized that the car was not going to stop, Reynolds
contacted the county dispatcher. Reynolds again radioed the
dispatcher when he turned right on Jackrabbit Lane. The county
dispatch unit notified Belgrade police officer, John Woodland, that
Reynolds was pursuing a northbound car on Jackrabbit Lane.
Woodland headed south on Jackrabbit. As he met the pursued car,
Woodland turned on his emergency lights. Reynolds lost sight of
the taillights of the fleeing car because of the lights on
Woodlandls car and the lights from Bairls truck stop. Woodland
reversed direction and also lost sight of the escaping car.
The county dispatcher had called the Montana Highway Patrol
who contacted Patrolman Dan Smith in the Belgrade area. Smith was
approximately one-half mile behind Woodland. When Smith saw the
fleeing car go past Woodland, he turned around, switched on his
siren and emergency lights, and headed north, watching the
approaching car in his rear view mirror. The driver of the
speeding car flashed his lights, but did not slow down, and burst
by Smith as Smith pulled over on the shoulder of the road.
The car sped north on Jackrabbit with Smith in pursuit. As
he approached a truck, the driver of the escaping car started to
pass, saw an oncoming car, skidded off the road to the left
momentarily, swerved back across the road, and plummeted down a
fifteen-foot embankment on the right side of the road. Smith
stopped his patrol car, got out, and looked over the embankment.
But instead of stopping, the driver revved the motor and headed
northward in the ditch. The car came to a small irrigation ditch,
jumped the irrigation ditch, turned eastward, and continued in the
ditch parallel to Alaska Road South.
The driver of the car attempted to escape the ditch onto
Alaska Road South, tore across the road through the interstate
fence, and ended up on the eastbound on-ramp to Interstate 90
facing the wrong way. Smith, going west, followed on Alaska Road
south, which runs parallel to the on-ramp to Interstate 90.
When the car reached the intersection of the eastbound on-
ramp and Jackrabbit, it crossed Jackrabbit Lane, slid down another
ten to fifteen foot embankment, ripped through the interstate
fence, hit the side of Amsterdam Road, and again careened through
the interstate fence into a ditch. The car continued westbound in
the ditch for about two-tenths of a mile and then climbed onto
Amsterdam Road.
The car accelerated to approximately 70 to 75 miles per hour,
but at a point where Amsterdam Road makes a large sweeping turn to
the left, the car again flew off the road, hit a road sign, and
bounced into a field. The car bolted through the field toward the
interstate, but came to a fence. Following the fence, the car
swerved back toward Amsterdam Road. As the car neared Amsterdam
Road, it struck a private approach road, soared airborne for 58
feet, and came to a final stop on the far side of Amsterdam Road.
Steam spewed from the radiator of the car, which looked as if it
had been in a demolition derby.
Smith had the car in visual contact from the instant he first
saw the car go by Woodland on Jackrabbit Lane until it crashed,
except for the few moments he stepped from his car to peer over the
first embankment the car dived down and for a few seconds when the
car slid down the second embankment.
While Smith was tracking Palmer's car, Reynolds and Woodland
pulled into Bair's truck stop and approached another vehicle which
had a large amount of steam coming off the front end. When the
steam cleared, Reynolds realized that it was not the same vehicle
that he had been pursuing. Shortly thereafter, the officers
received radio contact from Smith indicating that Palmer's car had
wrecked.
After the crash, Smith approached the car and saw Palmer lying
with his head on the floor under the dashboard and with his feet
up on the steering wheel. Palmer was unconscious. When Woodland
and Reynolds arrived at the scene, Reynolds recognized the car as
the one which had passed him on Huffine Lane. Reynolds, an
emergency medical technician, applied a dressing to a large
laceration on Palmer's neck. Palmer began to regain consciousness
and appeared to be in shock, flailing around and fighting the
assistance being given him.
At the hospital, Reynolds noticed the odor of alcohol on
Palmer's breath. After reading the implied consent law to Palmer,
he placed him under arrest and requested a blood test. Reynolds
informed Palmer that if he refused the blood test he would lose his
driver's license. Reynolds ordered the nurses to draw blood for
the test, but Palmer refused. No blood sample was taken. Reynolds
cited Palmer for speeding, driving under the influence of alcohol,
recklessly eluding a police officer, and failing to have insurance.
On February 16, 1989, Palmer was convicted in justice court
of speeding, driving under the influence of alcohol, and recklessly
eluding a police officer. Palmer appealed to district court and
after a bench trial was convicted of driving under the influence
of alcohol and eluding a police officer. On May 10, 1990, the
District Court sentenced Palmer to consecutive sentences of six
months in jail and a total fine of $1,000. All but 45 days of the
jail sentence and $500 of the fine were suspended.
I1
The first issue is whether the evidence was sufficient to find
Palmer guilty of recklessly eluding a police officer.
The standard of review in a criminal case where the issue is
sufficiency of the evidence is whether the evidence, when viewed
in a light most favorable to the prosecution, would allow any
rational trier of fact to find the essential elements of the crime
beyond a reasonable doubt. State v. Holman (1990), 241 Mont. 238,
241, 786 P.2d 667, 669; State v. Tome (1987), 228 Mont. 398, 400,
742 P.2d 479, 481. The weight of the evidence and the credibility
of the witnesses are llexclusivelythe province of the trier of
fact. If the evidence conflicts, it is within the province of the
trier of fact to determine which shall prevail. State v. Oman
(1985), 218 Mont. 260, 265, 707 P.2d 1117, 1120.
Pursuant to Montana law, a person commits the offense of
recklessly eluding an officer when he:
operates any vehicle in willful or wanton disregard for
the safety of persons or property while fleeing or
attempting to flee from or elude a peace officer who is
lawfully in pursuit and whose vehicle is at the time in
compliance with the requirements of 61-9-402.
Section 61-8-301 (1)(b), MCA. The charge against Palmer was eluding
a police officer from Huffine Lane to Jackrabbit Lane. palmer
contends that a reasonable doubt exists as to whether he was the
driver of the car which Officer Reynolds pursued from ~uffineLane
to Jackrabbit Lane before Reynolds lost sight of the car.
Palmer posits two arguments. First, because Officer Reynolds
lost sight of the car he was pursuing on Jackrabbit Lane and
mistakenly stopped another vehicle at Bairls truck stop, a
reasonable doubt arises as to whether Palmer was the driver of the
car that eluded Reynolds on ~uffineand Jackrabbit.
Palmer's theory is rebutted by the evidence. Although
Reynolds testified that he lost sight of the fleeing car near
Bairls truck stop, at that moment Patrolman Smith of the Montana
Highway Patrol had sight of the car and kept the fleeing car in
view until the end of the chase, with the exceptions of the few
seconds when Palmer plunged out of sight over the fifteen-foot
embankments. Smith, heading south on Jackrabbit Lane following
Officer Woodland, saw the northbound car Reynolds was pursuing
speed by Woodland's car without stopping. Smith then made a U-
turn and could see the fleeing car approaching him in his rear-
view mirror.
According to the testimony of Reynolds, he had Palmer's car
in sight at all times except for a matter of seconds when Palmer
turned north on Jackrabbit from Huffine Lane. No other vehicles
were in the vicinity when Palmer turned north on Jackrabbit Lane.
In addition, Reynolds testified that Palmer's car was the same
color and type as had passed him on Huffine Lane before he turned
around and began giving chase. Reynolds also attested that as soon
as he had a clear view of the stopped vehicle at Bairls truck stop,
he realized that the vehicle was not the one he had been chasing.
Secondly, Palmer claims that, given the times reported in the
dispatch log of the beginning of the chase and the occurrence of
the accident and given the distances traveled, it was impossible
for Palmer to have been the driver of the car spotted on Huffine
Lane. Palmer asserts that a vehicle would have to travel at speeds
approaching 160 miles per hour in order to cover the distance
between the Main Mall in Bozeman and the place of the wreck on
Amsterdam Road.
Reynolds called the dispatcher at 2 : 3 7 a.m. to report that he
was in pursuit of Palmer's car. The accident at Amsterdam Road was
reported at 2:44 a.m. Smith estimated that the car would have had
to travel an average speed of 94 miles per hour to cover the
distance between the two points.
The discrepancy between the speeds estimated by Smith and
Palmer is due to the location of Reynolds1 vehicle when he reported
to the dispatcher. Palmer placed him at the Main Mall, but
Reynolds testified that he didn't call the dispatcher until he
realized that the speeding car was not going to stop. Thus, the
distance was shorter than envisioned by Palmer.
The District Court addressed this issue in its findings:
On January 4, 1990, Defendant asked for a
continuance of this trial for the reason that
he had retained a physicist to confirm by
expert opinion that based on times, distance
and speed that it could not have been
Defendant who Officer Reynolds pursued down
Huffine and Jackrabbit Lanes. Based on that
representation, the cause was continued. The
expert did not appear at this trial. Thus,
the Court has only counsells argument and
clever though it may be, it is not evidence.
The District Court relied on the credible evidence of the officers1
testimony in concluding that Palmer's car was the same car
initially pursued by Reynolds on ~uffine Lane. viewing the
evidence in the light most favorable to the prosecution, we hold
that the District Court, as the trier of fact, relied on sufficient
evidence to find Palmer guilty beyond a reasonable doubt of
recklessly eluding a police officer.
The second issue is whether the evidence was sufficient to
find Palmer guilty of driving under the influence of alcohol.
Palmer argues that the only proof of intoxication was that at
the hospital Officer Reynolds smelled alcohol on Palmer's breath;
therefore, the evidence was insufficient find Palmer guilty
beyond a reasonable doubt of driving under the influence of
alcohol. Palmer asserts that no other evidence, such as a field
sobriety test, slurred speech, bloodshot eyes, or results of the
horizontal gaze nystagmus test, was presented.
The District Court based its verdict on the following finding:
The admitted physical facts of the Defendant's
impaired driving judgment is almost sufficient
in and of itself to sustain the charge. The
odor of alcohol detected on the operator's
breath by an experienced officer, after having
personally observed the irregular, erratic
manner in which the vehicle was operated, is
sufficient.
The manner in which a vehicle is driven can be evidence of driving
under the influence of alcohol. See State v. Peterson (1989), 236
Mont. 247, 250, 769 P.2d 1221, 1223. Here, the way in which the
car was driven would not be expected to be undertaken by a sober
individual unless he were a stuntman in a car chase movie. Driving
at speeds over 100 miles per hour under wet road conditions,
swerving off the road, plunging over two embankments, driving down
ditches and across fields, smashing through the interstate fence,
and failing to stop even though signaled to stop by three police
officers demonstrate a manner of driving that suggests the driver
was intoxicated.
Since Palmer was unconscious immediately after the crash and
just beginning to regain consciousness as he was moved into the
ambulance, field tests would have been inappropriate. At the
hospital, Palmer seemed confused when Reynolds sought to explain
the implied consent law and obtain his permission for a blood test.
However, he was sufficiently aware to answer questions asked him
by medical personnel and to refuse the alcohol blood test when
ordered.
Further, the trier of fact can consider as evidence of guilt
refusal to submit to a blood test or other tests of intoxication
as provided by law. Section 61-8-404(2), MCA; State v. Jackson
(1983), 206 Mont. 338, 347, 672 P.2d 255, 259.
We hold that sufficient evidence was presented for the
District Court to conclude that Palmer was guilty beyond a
reasonable doubt of driving under the influence of alcohol. The
judgment of the District Court is affirmed.
We concur: A"