96-244
No. 96-244
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
vs.
LYLE D. ROBISON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carrie L. Garber, Deputy Public Defender, Billings,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Pamela P.
Collins, Assistant Attorney General; Dennis Paxinos,
Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: January 2, 1997
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Decided: January 9, 1997
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Lyle D. Robison (Robison) appeals from a February 26, 1996,
Yellowstone County jury verdict finding him guilty of driving under
the influence of alcohol (DUI), a felony, in violation of 61-8-
401, MCA. We reverse and remand for a new trial.
The dispositive issue we address on appeal is whether the
trial court properly instructed the jury as to the element of
"actual physical control". We hold that it did not.
Background
On November 24, 1995, Robison was charged in the Thirteenth
Judicial District Court with felony DUI arising out of an incident
occurring in the early morning hours of November 21, 1995. Because
we are remanding for a new trial, we will not address the facts in
any detail, except to note that they were disputed and that,
depending upon which witnesses the jury believed, it could have
legitimately found Robison either guilty or not guilty.
Basically, it was the State's evidence that Robison was found
in a Billings parking lot sitting in the driver's seat of an
automobile with his body from the waist up slumped over into the
passenger's seat and with his feet near the pedals. The automobile
appeared to be locked, the motor was running and the lights were
on. Robison was asleep or passed out and had to be aroused by the
investigating officer. There was little doubt, as Robison readily
concedes, that he was heavily intoxicated--"pig drunk," in his
words.
Robison's defense, however, was that he had become intoxicated
in a local bar; that he had become acquainted with Jim Rutledge
(Rutledge) who offered to and was in the process of driving Robison
to his hotel; that Robison passed out in the car; and that he was
awakened by the investigating officer. Robison maintained he was
occupying the passenger's seat with his legs sprawled on the
driver's side. Robison did not recall if the doors were locked but
testified that the driver's door had a mechanical problem that,
from the outside, made it difficult to open and caused it to appear
that the door was locked.
Rutledge testified that he, too, was drunk, but he confirmed
Robison's story, maintaining that he (Rutledge) was driving the
automobile with Robison as the passenger. Rutledge stated that he
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had pulled into the parking lot to relieve himself. He saw the
police car approaching, panicked, and ran off, leaving Robison
asleep in the passenger's seat with the motor running, the lights
on, the parking brake engaged and the driver's door unlocked.
Discussion
To convict Robison of DUI, the State must prove that he was
(1) driving or in actual physical control of a vehicle; (2) upon
the ways of this State open to the public; and(3) while under the
influence of alcohol. Section 61-8-401, MCA. In this case, the
only element in dispute is (1). Robison admits he was intoxicated
in his automobile, but he denies that he was in actual physical
control of his vehicle.
In State v. Ruona (1958), 133 Mont. 243, 321 P.2d 615, we
explained that a person has actual physical control of a vehicle
when:
[he] has existing or present bodily restraint, directing
influence, domination or regulation, of an automobile. .
. .
Ruona, 321 P.2d at 618.
At Robison's trial the State offered a proposed instruction
regarding the element of actual physical control as follows:
"Actual physical control" means that a person has
existing or present bodily restraint, directing
influence, dominion or regulation of an automobile.
Movement of the vehicle is unnecessary.
The trial court, however, refused to give this proposed
instruction and, instead, with no objection from the State, but
over objection of Robison, instructed the jury as to the element of
actual physical control as follows:
"Actual physical control" means that a person has
existing or present bodily restraint, directing
influence, dominion or regulation of a motor vehicle.
Movement of the vehicle is unnecessary. One may be in
actual physical control of a motor vehicle if he is
physically inside an operational motor vehicle with the
potential to operate or drive that motor vehicle while
under the influence of alcohol on the ways of this State
open to the public.
The court stated that, in its opinion, it was necessary to
expand the definition of "actual physical control" in this case
because Robison was found passed out in the front seat and that the
definition was expanded "to include the potential of [Robison]
awakening and driving while still intoxicated."
Robison contends that this jury instruction--specifically, the
last sentence of the instruction--broadened our long-standing
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definition of "actual physical control" thereby rendering the
judicially established meaning of "actual physical control"
unconstitutionally vague and overbroad, both on its face and as
applied in this case, and impermissibly shifted the burden of proof
from the State to the defendant.
The State disagrees and contends that Robison's interpretation
of "actual physical control" is too restrictive. Relying on
various cases in which this Court has upheld DUI convictions where
the defendant was asleep or passed out behind the wheel, slumped
onto the middle of the seat, alone in the vehicle and lying across
the front seat or otherwise in a position to regulate the movements
of the vehicle, the State maintains that the trial court's
instruction does not expand our definition of "actual physical
control", but is consistent with our prior decisions. We disagree.
Factually, this case is not unlike many of the scenarios
described in the cases relied upon by the State. Indeed, had the
court properly instructed the jury, Robison could properly have
been found guilty of DUI--he was alone, asleep or passed out, in
the front seat of an automobile, with the motor running and the
lights on in a parking lot; he was clearly intoxicated. With a
proper instruction on "actual physical control", the jury could
have convicted Robison of DUI on this record, believing that he had
been driving or that he had dominion, directing influence or
regulation of the vehicle. Rather, it is the additional language
which the court added to the instruction on "actual physical
control"--language not at issue in our prior decisions--that
concerns us here.
We review jury instructions in a criminal case to determine
whether the instructions, as a whole, fully and fairly instruct the
fact finder on the law applicable to the case. State v. Leyba
(1996), 276 Mont. 45, 51, 915 P.2d 794, 797. Moreover, district
courts have broad discretion in formulating jury instructions.
State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167.
In this regard, we note in passing that the language from
Ruona referred to above, while not objected to by either the
defense or the State, is perhaps not the most clear and
understandable definition of "actual physical control." Given the
increasing numbers of DUI trials and felony DUI charges occasioned
by 1995 legislative changes in the DUI laws, and in the absence of
any statutory definition of "actual physical control," it may be
appropriate that the Criminal Jury Instruction Commission consider
adopting a clearer and more understandable definition of this
phrase as part of the model Montana Criminal Jury Instructions.
That notwithstanding, we conclude that the trial court misstated
the law and abused its discretion in instructing the jury on the
element of "actual physical control" in the manner stated above.
As noted previously, the definition of "actual physical
control" has been fleshed out by judicial interpretation and we
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have upheld DUI convictions in a variety of factual scenarios which
did not involve the accused being arrested while actually driving
a vehicle. See, for example, Ruona, 321 P.2d 615; State v. Taylor
(1983), 203 Mont. 284, 661 P.2d 33; State v. Ryan (1987), 229 Mont.
7, 744 P.2d 1242; Turner v. State (1990), 244 Mont. 151, 795 P.2d
982; Gebhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261; State
v. Peterson (1989), 236 Mont. 247, 769 P.2d 1221.
Had the court instructed on the element of "actual physical
control" in the language offered by the State, the jury may well
have found Robison guilty on the factual record. To do so,
however, it would have had to disbelieve Robison's and Rutledge's
testimony that Rutledge, not Robison, was at all times the driver
of the automobile. That, of course, would have been the jury's
prerogative.
It does not take much in the way of legal analysis, however,
to see that, under the jury instruction given by the court, even if
the jury believed that Rutledge and Robison had testified
truthfully, the jury still could have found Robison in actual
physical control of the vehicle and, therefore, guilty of DUI under
the facts here. The mischief in the court's instruction is the
following language which it added to the instruction proposed by
the State:
One may be in actual physical control of a motor vehicle
if he is physically inside an operational motor vehicle
with the potential to operate or drive that motor vehicle
while under the influence of alcohol on the ways of this
State open to the public.
Under this statement of the law, even if Robison was, in
truth, simply an intoxicated passenger in the vehicle and had never
driven it while intoxicated, he was, nevertheless, "physically
inside an operational motor vehicle with the potential to operate
or drive that motor vehicle while under the influence of alcohol on
the ways of this State open to the public," and, therefore, in
"actual physical control" under the court's instruction.
Obviously, the offense of DUI is directed at the driver of the
vehicle, not at other persons who, while intoxicated, might
legitimately happen to be passengers in the vehicle. For
example, assume that Mary, Joe, Betty and Bill are out on the town.
Mary is the designated driver and has not consumed any intoxicant.
Joe, Betty and Bill, however, are all intoxicated. On the way home
Mary is driving, Joe is in the front passenger seat and Betty and
Bill are in the rear seat. Mary stops at a gas station to use the
restroom, leaving Joe, Betty and Bill sitting in the car with the
windows down, the motor running and the lights on, singing "99
bottles of beer on the wall", with enough gusto that leaves no
doubt as to their lack of sobriety. At this point, Officer Smith
arrives on the scene and properly concludes that all three are
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intoxicated. Under the court's instruction, Joe, Betty and Bill
are each "physically inside an operational motor vehicle with the
potential to operate or drive that motor vehicle while under the
influence of alcohol on the ways of this State open to the public,"
and are, therefore, in "actual physical control" of the vehicle for
purposes of DUI. Each could be charged with and convicted of DUI
without any evidence, direct or circumstantial, that any one of
them had ever actually operated the vehicle while intoxicated. In
short, DUI would encompass not only an intoxicated driver but all
intoxicated passengers as well. Simply put, an intoxicated person
could never risk setting foot in a vehicle even for the legitimate
purpose of simply being a passenger.
Under the circumstances, we agree that the court's instruction
impermissibly broadened the judicial definition of "actual physical
control" to include, as a practical matter, every intoxicated
occupant of a vehicle whether or not he or she was or ever had been
operating the vehicle. We hold that, in so doing, the court
misstated the law defining "actual physical control" and that it
abused its discretion in instructing the jury in the manner that it
did.
Reversed and remanded for new trial.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
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