August 30 2011
DA 10-0605
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 212N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JON PETERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Toole, Cause No. DC 10-004
Honorable Laurie McKinnon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Sarah Chase Rosario,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Merle Raph, Toole County Attorney, Shelby, Montana;
Carolyn Berkram, Special Toole County Attorney, Cut Bank, Montana
Submitted on Briefs: August 17, 2011
Decided: August 30, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal
Operating Rules, this case is decided by memorandum opinion and shall not be cited and
does not serve as precedent. Its case title, cause number, and disposition shall be
included in this Court’s quarterly list of noncitable cases published in the Pacific
Reporter and Montana Reports.
¶2 A Montana Highway Patrol officer stopped Jon Peterson’s vehicle in Toole
County based upon suspicion that he was driving under the influence of alcohol. At the
scene the officer observed evidence indicating that Peterson was intoxicated, but Peterson
refused to participate in a field sobriety test. At the Sheriff’s office Peterson refused to
participate in a breath test. A jury convicted him of driving under the influence.
¶3 On appeal Peterson argues that the jury was improperly instructed on the
provisions of § 61-8-404(2), MCA. That statute provides that if a person refuses to
submit to a test to detect alcohol, a jury may infer from the refusal that the person was
driving under the influence, but that inference is rebuttable. Peterson argues that an
instruction based on that statute, using the terms “infer” and “rebuttable,” is confusing to
the average juror, depriving him of his constitutional rights to a fair trial and due process.
Peterson did not object to the instruction at trial and asks this Court to exercise plain error
review. We decline.
¶4 This Court has considered similar attacks upon § 61-8-404, MCA, and jury
instructions based upon it, and has consistently rejected those challenges. State v.
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Larson, 2010 MT 236, 358 Mont. 156, 243 P.3d 1130; State v. Miller, 2008 MT 106, 342
Mont. 355, 181 P.3d 625; State v. Michaud, 2008 MT 88, 342 Mont. 244, 180 P.3d 636;
City of Great Falls v. Morris, 2006 MT 93, 332 Mont. 85, 134 P.3d 692. This case is
therefore controlled by settled Montana law.
¶5 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE
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