State v. Sharp

No. 84-452

I N THE SUPREME COURT O THE STATE O PO T P A
F F l NAJ

1985

STATE O M Z T N ,
F OJA A

P l a i n t i f f and R e s p o n d e n t ,

-vs-

WESLEY SHARP,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e Nineteenth 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 County o f L i n c o l n ,
The H o n o r a b l e Douglas H a r k i n , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For A p p e l l a n t :

R e l l e r & German; Ann C. German, L i b b y , Montana

F o r Respondent:

Eon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , Montana
S u s a n Loehn, Deputy County A t t y . , L i b b y , Montana

S u b m i t t e d on B r i e f s : Play 3 , 1985

Decided: July 8, 1985

-
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Defendant appeals from a judgment of conviction of
violating section 61-8-406, MCA. We affirm.
The defendant initially appeared before the justice of
the peace in Lincoln County, Montana, on a charge of driving
under the influence of alcohol. At that time, he moved the

justice court to suppress the results of a breathalyzer test
on the grounds that such test was the result of an illegal
arrest and therefore inadmissible. The motion was denied,
and the justice court, in a bench trial, found the defendant
guilty. Defendant appealed this conviction to the District
Court and renewed his motion to suppress. The parties agreed
that the trial court would rule upon the motion based upon a
set of stipulated facts. Ruling thereon, the District Court
denied defendant's motion.
Defendant's motion to dismiss for lack of speedy trial
was also denied, and a jury trial in District Court commenced
October 1, 1984. At trial the motion to suppress was again
renewed. The six-person jury found the defendant not guilty
of driving while under the influence of alcohol, an offense
defined by section 61-8-401, MCA, but found the defendant
guilty of the offense of operation of a motor vehicle with a
blood alcohol concentration of .10 or more, defined in
section 61-8-406, MCA. The District Court entered an oral
judgment on the jury's verdict. Defendant waived a
pre-sentence report, and the District Court imposed the
maximum penalty: 10 days in jail and a $500 fine, plus
license revocation. The same day oral judgment was entered,
the defendant appealed to this Court. The judgment and
execution of sentence was stayed pending the determination of
this appeal.
 S e v e r a l d a y s a f t e r f i l i n g h i s n o t i c e o f a p p e a l from t h e

judgment, t h e d e f e n d a n t f i l e d a s t a t e m e n t o f r e c o r d on a p p e a l

wherein he s t a t e d , p u r s u a n t t o s e c t i o n 46-20-302, MCA, that

b e c a u s e h e was o n l y a p p e a l i n g from t h e t r i a l c o u r t ' s d e n i a l

of t h e p r e - t r i a l motion t o s u p p r e s s , which was s u b m i t t e d t o

t h a t c o u r t on s t i p u l a t e d f a c t s alone, he d i d n o t i n t e n d t o

order a transcript f o r appeal. H e contends t h a t s i n c e t h e

D i s t r i c t C o u r t c o n s i d e r e d t h e m a t t e r on a s e t o f s t i p u l a t e d

f a c t s a l o n e , t h a t t h e same f a c t s c o n t r o l o u r c o n s i d e r a t i o n o f

t h e d e n i a l o f t h e motion.

The State, in response, argues that the m o t i o n was

p r o p e r l y g r a n t e d on t h e s t i p u l a t e d f a c t s alone, hut i n the

alternative, t h a t o t h e r evidence adduced a t t r i a l supports

the D i s t r i c t Court's order. The d e f e n d a n t renewed h i s motion

a t trial, and t h u s a n y e v i d e n c e i n t h e r e c o r d s u p p o r t i n g t h e

D i s t r i c t C o u r t ' s o r d e r should be considered. To t h a t e n d ,

t h e S t a t e a t t a c h e d a s an a p p e n d i x a p o r t i o n o f t h e t r a n s c r i p t

o f t h e t r i a l where o t h e r r e l e v a n t e v i d e n c e p e r t a i n i n g t o t h e

i s s u e o f t h e s t o p and a r r e s t o f t h e d e f e n d a n t was p r o d u c e d .

We will consider the entire record, including the

a p p e n d i x p r o v i d e d by t h e S t a t e , f o r two r e a s o n s : (1) the

d e f e n d a n t h a s n o t moved u s t o s t r i k e t h i s e v i d e n c e from t h e

record; and (2) b e c a u s e of t h e r u l e t h a t a r u l i n g d e n y i n g a

m o t i o n t o s u p p r e s s i s n o t f i n a l and may b e r e v e r s e d a t any

time, and thus a reviewing court may consider evidence

subsequently received during trial. People v. Jones

(I11.App. 1 9 8 3 ) , 449 N.E.2d 547; People v. Taylor (I11.App.

1 9 8 1 ) , 424 N.E.2d 1246. This r u l e i s recognized i n I l l i n o i s ,

c.f. People v. Taylor (Ill. 1971), 277 N.E.2d 878, 881;

P e o p l e v . Schlemm ( 1 l l . A p p . 1 9 8 0 ) , 402 N.E.2d 810, from where

much o f o u r c r i m i n a l p r o c e d u r e c o d e i s d e r i v e d . Discussing

this rule, the Appellate Court of Illinois, in People v.

Schlemm, 4 0 2 N.E.2d a t 816, o b s e r v e d :
 "Had t h e m o t i o n t o s u p p r e s s been d e n i e d
a t t h e s u p p r e s s i o n h e a r i n g , and had t h i s
Court determined that the evidence
produced a t t h a t h e a r i n g d i d n o t j u s t i f y
d e n i a l o f t h e suppression motion, t h i s
Court could consider the evidence
i n t r o d u c e d a t t r i a l t o uphold d e n i a l o f
t h e suppression motion. ( P e o p l e v.
Braden 1 9 6 6 , 34 I 1 1 . 2 d 5 1 6 , 216 N.E.2d
808) I n commenting upon t h e above
d o c t r i n e , P r o f e s s o r LaFave h a s s t a t e d :
' t h e n o t i o n t h a t t h e t r i a l r e c o r d may b e
u s e d by t h e a p p e l l a t e c o u r t t o u p h o l d a
search o r seizure notwithstanding the
f a c t t h a t t h e lower c o u r t e r r e d i n
f a i l i n g t o s u p p r e s s on t h e lesser amount
o f e v i d e n c e produced a t t h e p r e t r i a l
h e a r i n g i s an a t t r a c t i v e one--after a l l ,
if it now a p p e a r s t h a t t h e f o u r t h
amendment was n o t v i o l a t e d , t h e n why
should t h e defendant be e n t i t l e d t o a
windfall r e v e r s a l of h i s conviction? '
LaFave, S e a r c h and S e i z u r e ( 1 9 7 8 ) , Vol.
3 , S 1 1 . 7 ( c ) , p . 732."

See also, People v. Hall (111.App. 1980), 4 1 4 N.E.2d 201,

The r u l e s t a t e d above d o e s n o t a l t e r t h e r u l e s t a t e d i n

S t a t e v. Rader (1978), 177 Mont. 252, 255, 581 P.2d 437,

where w e n o t e d t h a t "the general rule ... i s t h a t when a

motion i s granted o r denied, s u c h becomes the law o f the

case, and the alleged illegality of the search cannot

ordinarily be relitigated." F.ader d e a l t with a situation

where one judge had replaced another on the case. The

policies supporting the "law of the case" d o c t r i n e do n o t

apply i n a s i t u a t i o n , such a s i n t h e c a s e a t b a r , where t h e

same j u d g e i s on t h e c a s e f o r i t s d u r a t i o n , a c c o r d , P e o p l e v .

Taylor ( I l l . 1 9 7 1 ) , 277 N.E.2d 878. Further, i n Rader, we

recognized exceptions to the "law o f the case" rule. In

recognizing these exceptions t o t h a t r u l e , we cited t o the

annotation at 20 A.L.R.Fed. 13 ( 1 9 7 4 ) , which l i s t s one o f

them a s b e i n g where new e v i d e n c e p r e v i o u s l y u n a v a i l a b l e to

the court i s made known. Under either the Illinois rule

stated above, or the Rader rule, we may in these
I
c i r c u m s t a n c e s p r o p e r l y c o n s i d e r t h e whole r e c o r d and a p p l y it

t o appellant's allegation of error.

Here, t h e D i s t r i c t Court, i n c o n s i d e r i n g t h e motion t o

s u p p r e s s was r e s t r i c t e d by t h e p a r t i e s ' stipulations. Alone,

the stipulations provide minima 1 support for the court 's

ruling. Subsequently, though, new evidence n o t contained i n

t h e s t i p u l a t i o n s was adduced a t t r i a l t h a t l e n d s s u p p o r t t o

the D i s t r i c t Court's order.

From a r e v i e w o f t h e r e c o r d , t h e f o l l o w i n g a p p e a r t o b e

t h e relevant facts: A t 4:10 p.m., December 2 2 , 1983, Joyce

Hudson, the town clerk of Eureka, Montana, received an

anonymous t e l e p h o n e c a l l from a f e m a l e a t t h e F i r s t and L a s t

Chance S a l o o n , who r e p o r t e d a p o s s i b l e D U I . The c a l l e r gave

the license number o f the vehicle involved, a description

thereof, and the direction being traveled by the motor

vehicle. O f f i c e r J i m W i l l i a m s of t h e Montana Highway P a t r o l

was .in t h e o f f i c e when t h e c a l l came i n . He got i n t o h i s

p a t r o l c a r and headed n o r t h on Highway 9 3 . H e soon saw t h e

d e s c r i b e d v e h i c l e parked halfway o f f t h e road p o i n t i n g i n a

southerly direction. On p u l l i n g around t o a p p r o a c h t h e c a r

from b e h i n d , O f f i c e r W i l l i a m s n o t e d s k i d marks l e a d i n g t o t h e

vehicle, later determined to be 57 feet in length. As

Officer Williams pulled up behind the vehicle, it slowly

began to pull away. Officer Williams then stopped the

vehicle. The d r i v e r was Ron Truman. W i l l i a m s gave Truman a

f i e l d s o b r i e t y t e s t and d e t e r m i n e d t h a t Truman was n o t u n d e r

the influence of alcohol. When h e was t a l k i n g t o Truman,

Officer Williams noted a passenger in the vehicle, the

defendant, Wesley R . Sharp. O f f i c e r Williams t e s t i f i e d a t

trial that " [ S h a r p ] was slumped down and l o o k i n g l i k e h e was

about halfway passed o u t . H e was o b v i o u s l y e i t h e r s i c k o r

drunk." O f f i c e r W i l l i a m s t h e n a s k e d Ron Truman w h e t h e r h e

had been driving s i n c e he had l e f t the bar. Truman t o l d
Officer Williams that he had just taken o v e r d r i v i n g when

t h e y w e r e parked t h e r e , and t h a t h e d i d s o " b e c a u s e W s was
e

t o o drunk t o d r i v e . " O f f i c e r Williams t h e n c a l l e d back t o

the dispatcher and had h e r g e t ahold of the caller a t the

F i r s t and L a s t Chance S a l o o n . The c a l l e r was i d e n t i f i e d a s

P a t t y G a r r i s , t h e bartender a t t h e saloon. She was a s k e d who

had been driving the vehicle when it left the bar and

answered that it was Wesley S h a r p . O f f i c e r Williams then

gave the defendant Miranda warnings and a field sobriety

test. Based on that test, he arrested Sharp for driving

w h i l e u n d e r t h e i n f l u e n c e and t o o k him t o t h e p o l i c e s t a t i o n ,

where t h e b r e a t h a l y z e r t e s t was c o n d u c t e d . The t e s t , g i v e n

approximately an hour after the arrest, showed that the

defendant S h a r p had a blood alcohol level of .17 percent.

The d e f e n d a n t a l l e g e s t h a t O f f i c e r W i l l i a m s was w i t h o u t

a u t h o r i t y t o s t o p t h e d e f e n d a n t ' s v e h i c l e because he lacked

probable cause t o do so. This contention i s erroneous. All

that is required of an o f f i c e r i n making an investigatory

stop is that he have a "particularized" or "reasonable"

s u s p i c i o n t h a t c r i m i n a l a c t i v i t y may b e a f o o t . This i s the

a p p l i c a b l e s t a n d a r d f o r an i n v e s t i g a t i v e s t o p o f a vehicle;

or in other words "some basis from which the court can

determine that the detention was not arbitrary or

harrassing." S t a t e v. Gopher (Mont. 1 9 8 1 ) , 631 P.2d 293,

295, 38 St.Rep. 1078, 1081, relying on United States v.
Cortez ( 1 9 8 1 ) , 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d. 621.

Here, Officer Williams had a sufficient basis for his

particularized suspicion of i l l e g a l a c t i v i t y . A c i t i z e n had

just c a l l e d t h e p o l i c e t o r e p o r t a p o s s i b l e D U I o f f e n s e and

had given the police dispatcher the car's license plate

number a n d d e s c r i p t i o n and t h e d i r e c t i o n o f travel. These

facts were corroborated when Office Williams found the

d e s c r i b e d v e h i c l e g o i n g i n t h e d i r e c t i o n a n d on t h e highway
r e p o r t e d by t h e t e l e p h o n e c a l l e r . When W i l l i a m s came upon

t h e automobile, it was s t o p p e d h a l f w a y o f f t h e roadway and

began to pull away when he approached. Officer Williams

n o t i c e d s k i d marks coming from t h e v e h i c l e . H e had a r i g h t

at that time, based on reasonable suspicion and logical

inference, t o stop t h e defendant's vehicle t o investigate a

p o s s i b l e crime.

A p p e l l a n t e m p h a s i z e s t h e f a c t t h a t t h e i n i t i a l t i p was

g i v e n by an anonymous i n f o r m a n t . A s i d e from t h e f a c t t h a t

all of the information given by the informant was

c o r r o b o r a t e d a t t h e s c e n e , w e a l s o n o t e t h a t when i n f o r m a t i o n

is provided by a "citizen informant" that information is

considered presumptively r e l i a b l e . S e e S t a t e v . K e l l y (Mont.

1 9 8 3 ) , 668 P.2d 1 0 3 2 , 1 0 4 3 , 40 St.Rep. 1 4 0 0 , 1 4 1 1 ; S t a t e v.

L i e s t i k o ( 1 9 7 8 ) , 176 Mont. 434, 439, 578 P.2d 1161, 1164; and

1 LaFave S e a r c h and S e i z u r e S e c t i o n s 3.3 and 3.4, (1978).

Alternatively, appellant argues that once Officer

Williams determined that Ron Truman, the driver of the

v e h i c l e a t t h e t i m e o f t h e s t o p , was n o t u n d e r t h e i n f l u e n c e ,

that the scope of the permissible investigatory s t o p was

ended and that anything that occurred thereafter was

impermissible. This contention is a l s o not persuasive. A

founded suspicion to stop for investigative detention may

ripen i n t o probable cause t o a r r e s t through t h e occurrence of

facts or incidents after the stop. United States v.

Medina-Gasca (9th C i r . 1 9 8 4 ) , 739 F.2d 1451, 1453; United

S t a t e s v. Portillo-Reyes (9th C i r . 1 9 7 5 ) , 529 F.2d 8 4 4 , 850.

Here, O f f i c e r Williams, a f t e r running a f i e l d s o b r i e t y test

on Ron Truman, observed t h e p a s s e n g e r Wesley Sharp i n t h e

v e h i c l e s l o u c h e d o v e r and a p p a r e n t l y i n t o x i c a t e d . Based on

that observation, Officer Williams inquired further. In

r e s p o n s e t o t h e o f f i c e r ' s q u e s t i o n s , Ron Truman s t a t e d t h a t

t h e two had j u s t s w i t c h e d p l a c e s and t h a t t h e y d i d s o b e c a u s e
Sharp was "too drunk to drive." To further corroborate this,
Officer Williams went back to the squad car and had the
dispatcher call the First and Last Chance Saloon. The
informant, then identified, stated that Wesley Sharp was
driving the car when it left the saloon. At that time,
Officer Williams' investigation had produced facts that
ripened into the probable cause to arrest Wesley Sharp. He
did so, gave Sharp his Miranda warnings, and brought him to
the stationhouse, where the breathalyzer test was
administered. Clearly, in this case Officer Williams was
simply investigating an alleged criminal activity and using
all of his facilities to determine what had occurred. That
was his job, and his duty. We do not find appellant's
argument persuasive. An investigation or investigatory stop
is guided by principles of reasonableness. Effective law
enforcement requires some latitude to be given to
investigating officers to react to and follow up on their
observations. Drawing artificial distinctions or "time
lines" in situations such as these does not comport with
reality or common sense. All that is required, as stated
above, is that the officer had some articulable, or
particularized suspicion that criminal activity was afoot; in
other words, that the particular investigation or stop was
not solely arbitrary or for the purposes of harrassment. As
long as the scope and duration of that investigation stays
within these parameters, we have no difficulty with upholding
such an investigation and any evidence of criminal activity
adduced therefrom.
Justice Sheehy, in his dissent, has raised various
issues and has expressed his opinion of the handling of this
case in the District Court and this Court.
It is my opinion that defense counsel, both having
excellent reputations, chose to present this appeal solely on
the issue of the validity of the order refusing to suppress
the breathalyzer test results. No transcript was submitted,
so it is not possible to determine the extent of
participation by the defense in the settlement of jury
instructions, submission of the special verdict form, or in
the examination of witnesses. Therefore the opinion has been
restricted to the issue presented on appeal.
Based on the foregoing reasons, the order of the
District Court denying the defendant's motion to suppress the
results of the breathalyzer test, and the judgment, are
affirmed.

We concur: H

Justices
Mr. Justice John C. Sheehy, dissenting:

I dissent. I do not understand how the Court can
sustain this conviction in the face of its obvious
imperfections. Sharp has been deprived of due process,
subjected to double jeopardy, and denied a speedy trial. Not
one but three violations of the State's Constitutional rights
have occurred. We should reverse the judgment of his
conviction sua sponte.
Due Process
The defendant Sharp has been convicted of a crime for
which no complaint, indictment or information was ever filed
against him.
This case arrived in the District Court by way of appeal
from a criminal conviction in a justice court. This means
that there is not in the District Court file any information
filed by a county attorney, nor a true bill by a grand jury.
The founding papers on which the charges against Sharp are
based must rest then in the papers that were transferred to
the District Court from the justice court in which his
original conviction was obtained.
In the justice court, the only charge against Sharp is
that filed by highway patrolman James Williams on January 3,
1984, charging that Sharp, on December 22, 1983 committed the
offense of "driving while under the influence of alcohol,
second offense." No other charges were made a.gainst Sharp in
the justice court. His sentence in the justice court on
conviction was a fine of $500, his driver's license suspended
for one year, and 173 days of jail sentence to be suspended
on the condition that he take a chemical dependency program
treatment.
 Under S 46-17-311, MCA, all criminal cases on appeal
from justices courts must be tried anew in the District
Court. In this type of case, the District Court acts under
its appellate jurisdiction. Section 3-5-303, MCA.
In the District Court, after trial, Sharp was found "not
guilty of the offense of driving while under the influence of
alcohol, a misdemeanor." His J.P. conviction was reversed.
However, Sharp was found "guilty of the offense of
operation of a motor vehicle by a person with alcohol
concentration of 0.10 or more."
Thus, Sharp was found guilty in the District Court of an.
offense for which he was never charged by information, true
bill, or complaint.
Under Art. 11, S 20, 1972 Montana Constitution, criminal
offenses within the jurisdiction of any court inferior to the
District Court "shall-" he prosecuted by complaint. The
iustice court file does not contain a complaint based on
alcohol concentration of 0.10. The same state constitutional
provision relating to criminal actions in the District Court
require either information or indictment. Neither an
information nor indictment is contained. in the District Court
file.
With respect to justice courts, 5 46-17-101, MCA,
requires that all criminal prosecutions in the justice court
be commenced by complaint under oath.
Under 46-11-401, MCA, all charges against a defendant
in a criminal prosecution must be in writing and charge the
offense by stating the name of the offense, the statute
invol-ved, and the facts constituting the offense in the
ordinary concise language. No such charge in writing appears
in the District Court file rel-ating to the "operation" of a
motor vehicle.
Sharp has been deprived of due process in that he has
been convicted of a crime in a District Court for which he
has never been charged.
The first time that the charge of operating a motor
vehicle while having a blood alcohol concentration of 0.10
appears is in the instru-ctions of the District Court to the
jury.
The test of the sufficiency of the information (and
presumably of the justice court complaint) is whether the
defendant is apprised of the charges brought against him and
whether he will be surprised. State v. Bogue (Mont. 1963),
142 Mont. 459, 3 8 4 P.2d 749.
Double Jeopardy
It is necessary to understand the state's statutes
respecting driving under the influence of alcohol and of
operating a motor vehicle under that influence to see that
the District Court got trapped in egregious error because it
did not understand the statutes.
There are two ways in which the State may prosecute a
defendant for driving or operating motor vehicles under the
influence of alcohol.
Under S 61-8-401 (1)(a), MCA, it is unlawful for any
person who is under the influence of alcohol "to drive or be
in actual physical control of a motor vehicle upon the
highways of this State open to the public."
Note, please, that under S 61-8-401, MCA, the offense is
committed if one is driving, or is in actual physical control
of a motor vehicle upon a highway while under the influence
of alcohol.
 With respect to the quantum of proof to establish a
violation of S 61-8-401, MCA, relating to alcohol, the
statutes establishes certain presumptions with respect to
blood alcohol tests. If at the time of the alleged offense
there is an alcohol concentration of 0.05 or less it is
presumed that the person was not under the influence of
al-cohol. Section 61-8-401 (3)(a), MCA. If there was at the
time a blood alcohol concentration in excess of 0.05 but less
than 0.10, there is no presumption, - - - may -
but the fact be
considered with other competent evidence - determininq the
in
guilt - innocence - - person.
or or the Section 61-8-401 (3)(b),
MCA .
If at the time there is an alcoholic concentration of
0.10 or more, it is presumed that the person was under the
influence, but the presumption is rebuttable. Section
61-8-401 (3) (c), MCA.
A different crime for operating a vehicle under the
influence of alcohol is provided in S 61-8-406, MCA. There
it is unlawful "for any person to drive or be in actual
physical control of a motor vehicle upon the ways of this
State open to the public while the alcohol concentration in
his blood, brea.th, or urine is 0.10 or more."
Note please under 61--8-406, the crime is defined by
the status of the blood alcohol content. Nothing more than
the blood alcohol concentration is required to be proved if
the person is driving or in actual physical control of the
motor vehicle at the time.
In sum, then, under S 61-8-401, MCA, a person may be
convicted of driving or being in actual physical control of a
motor vehicle while under the influence of alcohol if his
blood alcohol concentration is in excess of 0.05 (50
milligrams per 100 milliliters) but less than 0.10 (100
milligrams per 100 milliliters) and other competent evidence
shows he was guilty; if his blood alcohol concentration is
0.10 (100 milligrams per 100 milliliters) or more, there is a
rebuttable presumption that he was under the influence of
alcohol. Under 5 61-8-406, MCA, proof of the blood alcohol
concentration of 0.10 (100 milligrams per 100 milliliters) or
more is sufficient proof of the alcohol influence.
The District Court did not so instruct the jury.
Instead the District Court instructed the jury erroneously as
follows:
"The crime charged against the defendant is driving
while under the influence of alcohol, a misdemeanor
and all six of your numbeFmust agree jn order to
.
return either a verdict of guilty or not guilty.
"To do so, it is necessary that you consider the
crime of driving while under the influence of
alcohol first and that all six of you find the
defendant either guilty or not guilty of that
charge.
"In the event you find the defendant guilty of
driving while under the influence of alcohol, you
need go no further as you will have reached a
verdict in this case. And shall contact the
bailiff to return you to open court.
"In the event you find the defendant not guilty of
driving while under the influence of alcohol-, you
must then consider the lesser included offense of
operation of motor vehicle & - person with alcohol
a
concentratzn - - -or more. You must then find
of 0.10 -
the defendant guilty or not guilty of that charge.
When you have done so, you have reached. a verdict
and need not proceed further but shall contact the
bailiff to return you to open court."
The District Court erred in giving that instruction,
first, because it divided the elements provided in both
statutes "to drive or be in actual physical control of a
motor vehicle" while und.er the influence of alcohol. The
court dissected the statutes and erroneously determined that
one statute concerned itself with actually driving the motor
vehicle, and the other statute concerned itself with
"operation" of a motor vehicle. It committed grievous error
when it instructed the jury that the "operation" of a motor
vehicle was a lesser included offense of "driving" a motor
vehicle.
Was the jury confused? It certainly was. During its
deliberation, it sent out a question to the court, asking the
following:
"What is the definition of "driving" while under
the influence of alcohol? And does this differ
from "operation of a motor vehicle by a person with
alcohol concentration of 0.10 or more?"
The District Court answered the question to the effect
that "the instructions that have been given contain the law
that defines these offenses." Again the District Court
committed an egregious error.
Having been so erroneously instructed, and so
erroneously answered, as might be expected, the fury returned
a baffling verdict. It found Sharp "not guilty of the
offense of driving while under the influence of alcohol a
misdemeanor," but "guilty of the offense of operation of a
.

motor vehicle by a person with alcohol concentration of 0.10
or more. "
The District Court, having first erred by charging the
defendant with an offense not stated in a complaint,
information, or an indictment, compounded the error by
determining that "operation" of a motor vehicle is a lesser
included offense of "driving" a motor vehicle. This in spite
of the fact that in each of the two statutes that relate to
driving under the influence of alcohol, there is also
included the "actual physical operation" of a motor vehicle.
 Section 46-11-501, MCA, d-efines what is an "included
offense" under our State statutes. The offense is included.
when it is established by proof of the same or less than all
the facts required to establish a commission of the offense
charged, or a lesser kind of cul-pability suffices to
establish its commission.
As is demonstrated above, a crime of "operation" of a
motor vehicle by driving or being in actual physical control
of a vehicle with a blood alcohol concentration of 100
milligrams per 100 milliliters or more cannot be a lesser
.
included offense of the crime described in 5 46-11-401, MCA,
driving or being in actual physical control of a motor
vehicle under the influence of alcohol, because under the
latter crime, a conviction may be had if the blood alcohol
concentration is 50 milligrams per 100 milliliters. In other
words, it takes a greater degree of proof or a greater degree
of culpability to establish the "operation" crime than the
"driving crime" as described by the ~istrictCourt.
"A lesser included offense exists when all of the
elements of the lesser offense are necessary
elements of the greater offense. Put another way,
if it is possible to commit the greater offense
without having committed the lesser offense, the
latter is not an included crime." State v. Roybal
(Wash. 1973), 512 P.2d. 718.
It should be apparent that Sharp has been subjected to
double jeopardy in this case. Section 46-11-503, MCA. The
offenses under §§ 61-8-401 (driving) and 61-8-406, MCA,
(operation) were known to the attorney prosecuting the case
in the justice court, were consummated prior to the original
charge and jurisdiction and venue of both offenses lay in the
iustice court. A judgment of conviction for driving under
the influence of alcohol second offense was obtained. in the
justice court. That conviction was reversed by the jury in
the District Court. Charging him in the District Court on
the appeal with criminal operation constituted a new charge
based upon the same transaction which could and should have
been prosecuted in the justice court. Double jeopardy
attaches to the conviction of "operation" in the District
Court.
Again, Sharp has been deprived of a State Constitutional
right, the right not to be "again put i n jeopardy for the
.
same offense previously tried in any jurisdiction." Art. 11,
5 25, 1972 Montana Constitution.

Speedy Trial
Under State v. Knox (Mont. 19841, 675 P.2d 950, 41
St.Rep. 126, a misdemeanor charge must be dismissed if the
defendant's trial, following appeal from the conviction in
the justice court, is not brought to trial speedily. Here
the appeal was filed February 23, 1984 and trial commenced
October 1, 1984, a lapse of 220 days. A motion was made to
dismiss for lack of speedy trial and the trial court record
does not show the disposition of that motion. The trial
court record does reflect that there was a denial of the
motion to suppress, based upon a purported stipulation, but
the stipulation is not contained in the District Court file.
I therefore would accord no respect to the order denying the
motion to suppress and determine that the lapse of 220 days
exceeded the permissible six months to bring this case to
trial.
This case is a disgrace to the administration of
criminal justice. The defense attorney did not raise the
objections I have stated here, the county prosecutor did not
charge the defendant in the justice court with all of the
offenses chargeable under the laws at the time, and the
District Court compounded the errors either by disregarding
the statutes or not reading them. The defendant's conviction
should be reversed as a lesson to all concerned. Otherwise
this Court continues the disgrace.

f
/ Justice
/
Mr. J u s t i c e William E. Hunt, Sr. d i s s e n t i n g and c o n c u r r i n g :

I concur in t h e dissenting opinion of of Mr. Justice

Sheehy e x c e p t t h a t I d o n o t f i n d a n y t h i n g i n t h e r e c o r d t o

i n d i c a t e t h a t t h e d e f e n d a n t was n o t w e l l r e p r e s e n t e d by h i s

attorney.