No. 86-55
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1986
THE C I T Y O HELENA,
F
P l a i n t i f f and Respondent,
-vs-
K E I T H OWEN DAVIS,
Defendant and A p p e l l a n t .
APPEAL F O :
R M D i s t r i c t Court of t h e F i r s t 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 e w i s & C l a r k ,
The Honorable Henry L o b l e , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Leo J. G a l l a g h e r , Helena, Montana
F o r Respondent:
H u l l & S h e r l o c k ; David H u l l , H e l e n a , Montana
-- -
S u b m i t t e d on B r i e f s : June 2 4 , 1986
Decided: August 8 , 1986
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion o f t h e
Court.
T h i s i s an a p p e a l by t h e d e f e n d a n t from h i s c o n v i c t i o n
f o r t h e o f f e n s e o f d r i v i n g under t h e i n f l u e n c e o f a l c o h o l o r
d r u g s i n v i o l a t i o n o f S 61-8-401, MCA. The o n l y c o n t e n t i o n
r a i s e d by t h e d e f e n d a n t on a p p e a l i s whether t h e t r i a l c o u r t
p r o p e r l y i n s t r u c t e d t h e j u r y w i t h r e g a r d t o t h e above charged
offense. W reverse
e and remand t h i s c a s e f o r a new t r i a l
c o n s i s t e n t with t h i s opinion.
O April 1 4 ,
n 1985, t h e d e f e n d a n t - a p p e l l a n t , K e i t h Owen
Davis ( h e r e i n a f t e r "Davis") , was a r r e s t e d f o r d r i v i n g under
t h e i n f l u e n c e o f a l c o h o l o r d r u g s i n v i o l a t i o n o f S 61-8-401,
MCA. The d e f e n d a n t was c o n v i c t e d o f t h e charged o f f e n s e i n
Helena City Court and he appealed his conviction to the
D i s t r i c t Court. I n a t r i a l d e novo b e f o r e t h e D i s t r i c t C o u r t
of the First Judicial District a jury of six persons
c o n v i c t e d t h e d e f e n d a n t o f t h e same c h a r g e d o f f e n s e .
Section 61-8-401, MCA, reads in pertinent part as
follows:
P e r s o n s under t h e i n f l u e n c e o f a l c o h o l o r
drugs. (1) I t is unlawful and
p u n i s h a b l e a s p r o v i d e d i n 61-8-714 for
any p e r s o n who i s under t h e i n f l u e n c e o f :
(a) alcohol t o drive - - - actualo r be i n
p h y s i c a l c o n t r o l - - v e h i c l e upon t h e
of a
ways o f t h i s s t a t e open t o t h e p u b l i c ;
( b ) a n a r c o t i c d r u g t o d r i v e o r be i n
a c t u a l physical c o n t r o l of a v e h i c l e
within t h i s s t a t e ;
( c ) any o t h e r d r u g t o a d e g r e e which
r e n d e r s him i n c a p a b l e o f s a f e l y d r i v i n g a
v e h i c l e t o d r i v e o r be i n a c t u a l p h y s i c a l
control of a vehicle within t h i s s t a t e ;
or
( d ) a l c o h o l and any d r u g t o a d e g r e e
t h a t r e n d e r s - i n c a ~ a b l e - o_a.
him &
f- s felv A
d r i v i n g - v e h i c l e t o d r i v e o r be i n
a
actual physical control of a vehicle
within this state.
(2) The fact that any person charged
with a violation of subsection (1) is or
has been entitled to use alcohol or such
a drug under the laws of this state does
not constitute a defense against any
charge of violating subsection (1).
(3) Upon the trial of any civil or
criminal action or proceeding arising out
of acts alleged to have been committed by
any person driving or in actual physical
control of a vehicle while under the
influence of alcohol, the concentration
of alcohol in the person's blood at the
time alleged, as shown by chemical
analysis of the person's blood, urine,
breath, or other bodily substance, shall
give rise to the following presumptions:
(a) If there was at that time an alcohol
concentration of 0.05 or less, it shall
be presumed that the person was not under
the influence of alcohol.
(b) If there was at that time an alcohol
concentration in excess of 0.05 but less
than 0.10, that fact shall not give rise
to any presumption that the person was or
was not under the influence of alcohol
but such fact may be considered with
other competent evidence in determining
the guilt or innocence of the person.
(c) If there was at that time an alcohol
concentration of 0.10 or more, it shall
be presumed that the person was under the
influence of alcohol. Such presumption
is rebuttable.
(4) The provisions of subsection (3) do
not limit the introduction of any other
competent evidence bearing upon the issue
of whether the person was under the
influence of alcohol. (Emphasis added. )
The jury was instructed, over defense counsel Is
objection, that the law as it relates to S 61-8-401 was as
follows:
You are instructed that the expression
"under the influence of alcohol" covers
not only all the well-known and easily
recognized conditions and degrees of
intoxication but any abnormal mental or
physical condition which is the result of
indulging in alcohol to any degree, and
which tends to deprive a person of that
clearness of intellect and control of
himself which he would otherwise possess.
- - ability of the driver - an
If the of
automobile - -
has beenlessened in the
slightest degree by t-h
e a E o h C
then the driver is deemed-
-- b e u m e
influence of alcohol. ~ h e m e = fact that
a driver has taken a drink does not place
him under the ban of the statute unless
such drink has some influence upon him,
lessening in some degree his ability to
handle said automobile. (Emphasis
added. )
Davis now presents the following issue for review by
this Court: Whether the District Court erred by giving a
jury instruction that was at variance with the statute
defining the offense for which he was charged and convicted.
In his brief, Davis argues because he was charged with
driving under the influence of both alcohol - drugs
and
pursuant to (1)(d) of S; 61-8-401, the law clearly states he
is not guilty unless his driving ability was impaired "to-a
-
degree that [rendered] him incapable - safely driving -
of a
[motor] vehicle." But rather than instructing the jury as to
the criteria set forth in the statute, Davis argues, the
trial court instructed the jury to convict him if his ability
to drive was "lessened - - slightest degree."
in the
Davis concedes the jury instruction given by the trial
court was approved by this Court nearly 27 years ago in State
v. Cline (1959), 135 Mont. 372, 339 P.2d 657. However, Davis
argues, the instruction approved in Cline related only to a
situation where the defendant was charged and convicted of
driving under the influence of intoxicating liquor. In
approving the instruction in Cline, Davis points out, this
Court interpreted Montana's 1955 version of its DUI law and
noted "the Legislature . . . placed no limitation on the
extent of the influence of intoxicating liquor required to
come under the statute ... [and] the instruction, taken as
a whole, correctly states the law in Montana as applicable to
a case of this kind." Cline. 339 P.2d at 662. Montana's
1955 DUI law (Art. IV, Section 39, Chapter 263 of the Session
Laws for 1955) provided as follows:
Persons under the influence of
intoxicating liquor or of drugs.
(a) It is unlawful
who is under the
...
for any person
influence of
intoxicating liquor to drive - - -
or be in
actual physical control - any vehicle
of
within this state.
(b) It is unlawful ...
for any person
who is an habitual user of or under the
influence of any narcotic drug or who is
under the influence of any other drug to
a degree which renders him incapable of-
safely driving a vehicle to drive a
vehicle within thxs state. The fact that
any person charged with a violation of
this paragraph is or has been entitled to
use such drug under the laws of this
State shall not constitute a defense
against any charge of violating this
paragraph. (Emphasis added.)
Unlike the defendant in Cline, Davis argues, he was
charged with driving under the influence of both alcohol and
drugs. Further, unlike the offense charged in Cline, Davis
asserts, the statute he was charged and convicted of
violating does contain a clear legislative directive as to
the extent of influence of the intoxicants. The offense
charged in this case does not say the law is broken if one
drives while impaired to the "slightest degree;" rather, the
law states an offense is committed if one's driving ability
is impaired "to a degree that renders him incapable of safely
driving a [motor] vehicle." Davis argues the trial court
committed reversible error by instructing the jury to convict
him on the basis of a factual criteria that is at variance
with the criteria used by the legislature in defining the
elements of the crime. Had the jury in this case been fully
and fairly instructed on the law as passed by the
legislature, Davis argues, he may not have been convicted.
Although we do not totally agree with the argument
presented by Davis, we do feel he has brought to light one
very important point -- the "Cline" instruction no longer
reflects the law in Montana as passed by our legislature.
First, it must be noted that Davis was not charged with
driving under the influence of both alcohol and drugs
pursuant to (1)(d) of S 61-8-401 as he suggests. Rather,
Davis was charged with a violation of S 61-8-401 generally.
In other words, Davis was charged with driving while under
the influence of alcohol and/or drugs.
Next, we feel it is important to review the argument
presented by the City of Helena. The City of Helena, of
course, strongly argues that the jury instruction given and
approved in Cline, supra, was also appropriately given in the
instant case. As noted above, this Court in Cline
interpreted Montana's 1955 DUI law and determined that the
offered instruction correctly stated the law in Montana as
applicable to a case of that kind. In both Cline and the
instant case the defendants were charged with driving under
the influence of alcohol (intoxicating liquor). It is also
important to note, the City of Helena argues, that both
Montana's 1955 DUI law and today's DUI law are essentially
the same (see above). A comparison of the former law with
today's law reveals that despite its many amendments the
legislature has left intact the original criteria regarding
the degree of impairment the state must prove in order to
convict an individual of driving under the influence of
alcohol or drugs. Therefore, since the instruction given and
approved in Cline was based upon the same laws and situation
as found in the instant case, the City of Helena argues, it
was proper that the "Cline" instruction was given in this
case. We disagree.
Simply put, we hold the "Cline" instruction no longer
states the law in Montana. We find since this Court approved
the "Cline" instruction in 1959, the legislature has
significantly revised this State's D U I law. Although a
comparison of Montana's original D U I law and today's DUI law
reveals that the legislature has left intact much of the
statute's original language, the legislature has also made
some critical additions to the statute since it was first
enacted. The most important addition to the D U I law has been
subsection (3) of S 61-8-401 which sets forth the various
presumptions that may be read to a jury when a person is
charged with driving under the influence of alcohol (see
above). Obviously, this section of the DUI law was not
available to this Court when we approved the "Cline"
instruction. In fact, in Cline, we held that because the
legislature had placed no limitation on the extent of the
influence of alcohol required to come under the DUI statute,
we could justifiably adopt the offered instruction. As this
Court stated in Cline:
This identical instruction was given in
an Arizona case, Steffani v. State, 45
Ariz. 210, 42 P.2d 615, 618. The court
there made the observation that the
Legislature of the State placed no
limitation on the extent of the influence
of intoxicating liquor required to come
under the statute, and held that they
could not add to the language of the
statute. We believe that the
instruction, taken as a whole, correctly
states the law in Montana as applicable
to a case of this kind.
Cline, 339 P.2d at 662. Clearly, this is not the situation
under Montana's current DUI law.
In conclusion, we hold the "Cline" instruction is no
longer a proper statement of the law in this State and the
instruction must either be revised or abandoned to conform
with the provisions of § 61-8-401. As noted above, we find
the legislature today had specifically spelled out in
§ 61-8-401 the extent of the influence of intoxicants
necessary to be convicted of driving under the influence of
alcohol or drugs. As applied to the instant case, Davis is
entitled to a new trial with the jury being instructed as to
proper criteria set out in B 61-8-401 which is applicable to
a charge of driving under the influence of alcohol and/or
drugs.
The conviction of the defendant is reversed and this
matter is remanded for a new trial consistent with this
opinion. h n
We Concur: / I I
-/a - L YcrvccyR
Chief Justice
,-"--.