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No. 01-008
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 236
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MICHAEL NELSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lucas J. Foust, Foust Law Office, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: August 16, 2001
Decided: November 30, 2001
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Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 On September 28, 2000, a jury found Michael Nelson guilty of Driving or Being in
Actual Physical Custody of a Motor Vehicle while under the influence of alcohol. Nelson
appeals.
¶2 The following issue is dispositive:
¶3 Whether the District Court erred by failing to instruct the jury as to the defense of
necessity?
BACKGROUND
¶4 Early in the morning of March 7, 2000, Michael Nelson was drinking at the Beaumont
Club in Belgrade, Montana. The bartender, Mayrien French, testified that she served
Nelson approximately four shots in about an hour and a half. Nelson's own testimony
indicated that he had three or four drinks and may have been drunk. He stated that, "I was
very tired and I had been drinking . . . I suppose the alcohol had some effect and being
tired had some effect so I don't know which was more."
¶5 Shortly before closing time, around 1:45 a.m., French asked Nelson to leave the bar. A
little while later, another bartender suggested to French that "if I were you, I'd call the
cops. Somebody's sitting out in the parking lot." French called the police and asked them
to drive by the Beaumont Club.
¶6 Belgrade Police Officers Chuck Sprague and Mark Stoico responded to French's call.
When they arrived at the Beaumont Club, the officers found Nelson in the parking lot,
slumped behind the wheel of his pickup truck. The vehicle's door was slightly ajar, its
engine was running and music was blaring from its stereo. There was no evidence that
Nelson had driven the truck before Officers Sprague and Stoico's arrival. The officers
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rapped on the door of his vehicle, but were unable to stir Nelson. Officer Sprague then
opened the vehicle's door and aimed the beam of his flashlight in Nelson's face but was
still unable to wake him. Officer Sprague testified that, as he opened the door, the strong
odor of alcoholic beverages struck him. Only after turning down the music and repeatedly
tapping Nelson on the arm was Officer Sprague able to rouse Nelson.
¶7 Upon waking, Nelson's eyes were bloodshot and glassy, his speech was slurred, and he
was confused and difficult to understand. When the officers explained to him that the
bartender was afraid to leave the bar while he was in the parking lot, Nelson responded,
"What bartender?" He told the officers that he had not had anything to drink.
¶8 The officers asked Nelson to exit the vehicle so that they could perform a field sobriety
test. Nelson got out of the truck but refused to undergo the test. He also declined to give
blood or breath samples. The officers then arrested Nelson for driving under the influence
of alcohol in violation of § 61-8-401, MCA.
¶9 On June 20, 2000, the Honorable Thomas Olson presided over Nelson's initial trial.
Judge Olson instructed the jury that "actual physical control . . . does not include the use
of a vehicle solely for a place of shelter or habitation." The jury in that trial was unable to
reach a verdict. The matter was then retried before the Honorable Nels Swandal on
September 28, 2000. Judge Swandal refused to include an instruction similar to Judge
Olson's, "especially under the facts here." This time, the jury found Nelson guilty of
Driving or Being in Actual Physical Control of a Motor Vehicle While Under the
Influence of Alcohol. Nelson appeals.
STANDARD OF REVIEW
¶10 We review a district court's jury instructions in a criminal case to see whether the
instructions, as a whole, fully and fairly instructed the jury on the law applicable to the
case and whether the court abused its discretion. State v. Baker, 2000 MT 307, ¶ 26, 302
Mont. 408, ¶ 26, 15 P.3d 379, ¶ 26. A district court has broad discretion when it instructs
the jury. State v. Johnson, 1998 MT 289, ¶ 28, 291 Mont. 501, ¶ 28, 969 P.2d 925, ¶ 28.
DISCUSSION
¶11 Whether the District Court erred by failing to instruct the jury as to the defense of
necessity?
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¶12 Nelson argues that he was merely waiting for his brother and wife to pick him up at
the bar, and that the cold night required him to do so in his vehicle. Therefore, he asserts
that the District Court erred in not instructing the jury as to the defense of necessity. In
support of his claim, Nelson relies on four non-Montana jurisdictions that have recognized
affirmative defenses to allegations of driving while under the influence of alcohol.
¶13 Although Nelson urges this court to adopt the defense of necessity, this court has
repeatedly stated that the statutory defense of compulsion merges with the common law
defenses of necessity, justification, compulsion, duress and "choice of two evils." See
State v. Cox (1994), 266 Mont. 110, 117, 879 P.2d 662, 666; but see State v. Ottwell
(1989), 240 Mont. 376, 381, 784 P.2d 402, 405 (holding that a necessity-of-escape defense
and compulsion statute are not mutually exclusive but are complementary). The defense of
compulsion applies when a defendant "reasonably believes that death or serious bodily
harm will be inflicted upon him if he does not perform such conduct." Section 45-2-212,
MCA. Neither party asserts that the defense of compulsion is applicable to this case.
¶14 Instead, Nelson directs this Court to four non-Montana cases that recognize the
defense of necessity, or similar defenses, and asks this Court to follow them. The cases are
State v. Olson (Or. Ct. App. 1986), 719 P.2d 55, State v. Knowles (Me. 1985), 495 A.2d
335, State v. Fee (N.H. 1985), 489 A.2d 606 and State v. Shotton (Vt. 1983), 458 A.2d
1105. Three of these cases, however, involve codified affirmative defenses. See Olson,
719 P.2d at 56-57 (applying the statutory defense of choice of evils); Knowles, 495 A.2d at
337 (applying the statutory defense of competing harms); Fee, 489 A.2d at 607 (applying
the statutory defense of necessity). Because Montana has no comparable statute, we find
these cases unpersuasive.
¶15 Only Shotton deals with the common law defense of necessity. According to Shotton,
The elements of the necessity defense are: (1) there must be a situation of
emergency arising without fault on the part of the actor concerned; (2) this
emergency must be so imminent and compelling as to raise a reasonable expectation
of harm, either directly to the actor or upon those he was protecting; (3) this
emergency must present no reasonable opportunity to avoid the injury without doing
the criminal act; and (4) the injury impending from the emergency must be of
sufficient seriousness to outmeasure the criminal wrong. Shotton, 458 A.2d at 1106.
¶16 While Shotton involved driving under the influence of alcohol, the circumstances
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were much different from the ones before us. In Shotton, a state trooper noticed the
defendant driving irregularly on a public highway. Id. at 1105. After following her for a
couple of miles, he pulled her over and asked her to exit the vehicle. Id. at 1105-06. He
then took her to the police station, where she told him and another officer that her husband
had assaulted her and pushed her down a flight of stairs. Id. at 1106. She also told them
that the reason she had been driving was to get to the hospital. Id. The officers then took
her to the emergency room, where they discovered that she had multiple rib fractures and
would require a five-day hospital stay. Id. She later testified at trial that her husband was
the only other person home that night and that he had been drinking heavily. Id. She did
not have a working telephone in her house and, although the neighbors' homes were close
by, she was unwilling to risk finding them empty. Id. The court held that this evidence
raised legitimate factual issues relating to the defense of necessity. See Id. at 1107. The
court therefore reversed and remanded to the trial judge with directions to instruct the jury
on the issue of necessity. Id.
¶17 Nelson urges us to follow the holding in Shotton. He argues that the weather required
that he wait in his truck for his brother and wife to pick him up. At trial, Nelson presented
evidence that the low temperature that night was 31 degrees and the wind was blowing.
¶18 Judge Swandal determined, however, that there were "certainly other options available
to the defendant in this matter." We agree. There was a nearby hotel in which Nelson
could have sought shelter while waiting for his brother and wife. While Nelson asserted
that a bad knee prevented him from walking to this establishment, the State presented
evidence to show that Nelson was able to work on his house all day before going to the
bar. Nelson also had a blanket in his pickup that he could have used to keep warm, instead
of turning on his car.
¶19 The case before us simply does not present a medical emergency similar to the one in
Shotton nor does it present a situation where the defendant was blameless in creating the
emergency. Nelson was not physically injured. He drove to the bar by himself, on a cold
night, without a jacket, clad only in a sleeveless T-shirt. This was a self-created
predicament that had multiple solutions. While the comfort of Nelson's own truck
undoubtably presented a welcome refuge, we see no reason it requires us to adopt the
defense of necessity.
¶20 Therefore, we conclude that the District Court did not abuse its discretion by refusing
to give the jury an instruction on the defense of necessity.
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¶21 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ JIM RICE
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