NO. 91-310
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
V.
ARNOLD WEST,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Carstensen, Attorney at Law,
Billings, Montana
For Respondent:
Honorable Marc Racicot, Attorney General,
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana: John S . Forsythe, Rosebud
County Attorney, Forsyth, Montana
Submitted on Briefs: October 31, 1991
Decided: February 25, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Arnold West was convicted of driving under the
influence of alcohol by a jury trial in the Montana Sixteenth
Judicial District Court, Rosebud County. Defendant appeals the
conviction. We affirm the District Court.
Defendant raises the following issues for appeal.
1. Whether the District Court erred when it denied
defendant's motion in limine to prohibit two witnesses' testimony
because the State failed to provide defendant with a copy of the
statement of one of the witnesses.
2. Whether the District Court erred when it refused
defendant's jury instruction defining a voluntary act.
3. Whether there was sufficient foundation to introduce into
evidence the results of an alcohol breath test.
4. Whether the State's references to presumptions based on
the results of an alcohol breath test prejudiced the defendant.
5. Whether the Justice Court had original jurisdiction
because the penalty imposed for a DUI conviction exceeds the
definition of a misdemeanor.
6. Whether the District Court erred when it excluded jury
instructions that the State must prove that the defendant acted
purposely and knowingly.
On the evening of October 18, 1989, Sharyle Lallatin and her
sister Caryle Jenrich were leaving a movie theater in Colstrip,
when they noticed defendant in a nearby parking lot. In an effort
to gain their attention, he yelled and waved at them. The women
did not understand what the defendant was saying and they quickly
proceeded to their car. As they were leaving the scene, the women
saw the defendant back his pickup into a parked car. Lallatin left
the car in order to obtain the defendant's license number. She was
able to obtain the number and reported the incident to the
sheriff's office.
In the meantime, Jenrich followed the defendant so that she
could report the location of the defendant. After a few minutes,
the defendant pulled into the parking lot of a bowling alley.
Jenrich drove to the sheriff's office and reported the incident, as
well as the location of the defendant, to the dispatcher. while at
the sheriff's office, Jenrich prepared and signed a written
statement. She was then given a copy of her statement.
Rosebud County Deputy Sheriff Charles Hartman and Officer
Mitchell Moe responded to the call. When they arrived at the
bowling alley, they located the defendant's pickup in the back
parking lot. The license plates of the vehicle were registered in
the defendant's name. Finding the defendant sitting at a bar in
the bowling alley talking to a waitress, the officers escorted him
outside. After being questioned, the defendant admitted to being
at the parking lot near the movie theater and driving to the
bowling alley. The officers observed that the defendant's speech
was extremely slurred, his walking was staggered, and he emitted an
odor of an alcohol. The waitress told one of the officers that she
refused to serve the defendant alcohol because of his intoxicated
state.
3
Officer Hartman returned to the scene of the hit and run but
could not find any physical evidence that a car had been struck.
Except for the two women, no one else reported to the sheriff's
office that a vehicle had been hit on that night.
Officer Moe performed the usual field sobriety tests on the
defendant in the parking lot of the bowling alley. Defendant
failed the horizontal nystagmus test and could not perform the
one-leg-stand balancing test. The defendant was placed under
arrest for driving under the influence of alcohol in violation of
§ 61-8-401, MCA (1989). Approximately one and one-half hours had
elapsed from the time the women witnessed the accident to the time
defendant was arrested.
On January 12, 1990, defendant was initially found guilty in
a non-jury trial before a justice of the peace. Defendant appealed
the case to District Court and was convicted by a six person jury
on July 12, 1990. On September 5, 1990, defendant appealed his
conviction. On January 30, 1991, we remanded the case to District
Court because the court gave a jury instruction on mandatory
conclusive presumption of intoxication which was contrary to our
holding in State v. Leverette (1990), 245 Mont. 124, 799 P.2d 119.
On April 9, 1991, defendant was tried and convicted of the same
offense. On April 10, 1991, the court entered its judgment.
Defendant was fined $300, given a six month suspended sentence,
ordered to pay costs, and required to attend an alcohol treatment
program. Defendant appeals the conviction and judgment of the
District Court.
4
I
Whether the District Court erred when it denied defendant's
motion in limine to prohibit two witnesses' testimony because the
State failed to provide defendant with a copy of the statement of
one of the witnesses.
On the morning of the second District Court trial, defense
counsel filed a motion in limine to exclude the testimony of
Jenrich and Lallatin because the State failed to produce a copy of
Jenrich's written statement which was given to the sheriff's office
on the night of the incident. The District Court denied the motion
and ordered the State to question the witnesses as to whether
either of them had a copy of any such statement. Jenrich testified
that she had thrown away her copy and no statement was ever
produced. Defendant argues that allowing the testimony of the two
witnesses constituted prejudicial error.
Section 46-15-322(1)(a), MCA (1989), requires that the State
disclose Italist of the names and addresses of all persons whom the
prosecutor intends to call as witnesses in the case-in-chief,
together with their relevant written or recorded statements."
There is a continuing duty placed upon the prosecution throughout
the course of the criminal proceedings to disclose relevant
materials. Section 46-15-327, MCA (1989). The statutes go into
effect when "the State actually develops the knowledge of a
specific act, fact, or information that exculpates the defendant."
State v. Shaver (1988), 233 Mont. 438, 447, 760 P.2d 1230, 1235.
5
This Court established the following standard for lost or
destroyed evidence:
[Tlhat when the State, due to negligence, loss,
replacement or destruction, is unable to produce certain
physical evidence in the prosecution of the case,
reversal of a conviction is not necessary where the
actual objects were not vital to the defense, were not
exculpatory in nature, and the result would not have been
affected by their introduction.
State v. Halter (1989), 238 Mont. 408, 412, 777 P.2d 1313, 1316
(citing State v. Ronald Lee Craig (1976), 169 Mont. 150, 545 P.2d
649).
In California v. Trombetta (1984), 467 U.S. 479, 488-89, 104
S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422, the United States Supreme
Court added the following:
Whatever the duty the Constitution imposes on the States
to preserve evidence, that duty must be limited to
evidence that might be expected to play a significant
role in the suspect's defense. To meet this standard of
constitutional materiality [citation omitted], evidence
must both possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such a
nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.
In this case, defense counsel had other reasonable means to
obtain comparable evidence. At the first District Court trial,
Jenrich testified that she had a copy of the statement that she had
given to authorities. Defense counsel had approximately nine
months before the start of the second trial to either interview the
witness or request the county attorney to provide him with a copy
of the statement. Neither the sheriff's office nor the county
attorney had an original or copy of the statement in their
possession. Jenrich testified that she had thrown away her copy of
6
the statement. In addition, defense counsel failed to allege the
exculpatory value of the evidence, or how the introduction of the
written statement could have changed the result of the trial. We
hold that the District Court did not err in denying defendant's
motion in limine.
I1
Whether the District Court erred when it refused Defendant's
jury instruction defining a voluntary act.
Defense counsel proposed the following jury instruction:
In order to prove the charge of Driving a Motor
Vehicle While Under the Influence of Alcohol, the State
must prove beyond a reasonable doubt that the offense was
committed knowinsly by such Defendant as a voluntary act.
The word "act" means a thing done or that which is
done. It includes any bodily movement, any form of
communication and, where relevant, a failure or omission
to take action. [Emphasis added.]
In State v. McDole (1987), 226 Mont. 169, 175, 734 P.2d 683,
686, we held that 'l[d]riving under the influence is an absolute
liability offense not requiring the proof of the mental state by
the State." Section 61-8-401(7), MCA (1989), states that
liability as provided in 45-2-104 will be imposed for
~~[a]bsolute
a violation of this section."
The basic reason for not requiring the state to prove mental
intent in DUI cases is that:
[Slituations could arise in which defendants
could not be convicted under the statute
because they were too intoxicated to form the
requisite intent. The paradoxical and absurd
result would be that the more intoxicated the
driver became the better his chances of
avoiding liability under the statute.
7
McDole, 734 ~ . 2 dat 686 (quoting Erwin, Defense of Drunk Drivinq
Cases, 5 1.05 (1986)).
The proposed jury instruction required the State to prove the
defendant knowingly committed the offense. Absolute liability
statutes do not require proof of a mental state. We hold the
District Court did not err in refusing the jury instruction
defining a voluntary act.
I11
Whether there was sufficient foundation to introduce into
evidence the results of an alcohol breath test.
When a defendant is charged with driving under the influence
of alcohol, he is "entitled to any procedural safeguards in the
Administrative Rules of Montana." State v. O'Brian (1989), 236
Mont. 227, 229, 770 P.2d 507, 508. Section 23.4.209 ARM (1989)
required:
(1) All models of breath-testing instruments used
to administer testing according to section 61-8-405 MCA,
must be approved by the division. The models operated by
certified operators and/or operator supervisors prior to
and on the effective date of this rule are deemed
approved by the division.
(2) Each breath-testing instrument must be
inspected by the division, and the accuracy verified by
the division, prior to installation of the instrument.
Defendant contends that the State failed to lay proper
foundation proving that the intoxilyzer was properly tested and
certified prior to administering the test on the defendant.
Officer Moe testified that he was certified to operate the
intoxilyzer and that he calibrated and tested the instrument to
8
insure that it would accurately measure the defendant's breath. He
also testified that in order for the intoxilyzer to take an
accurate reading, the instrument must be calibrated at .loo. He
then testified, and the record reflects, that the instrument was
properly calibrated at .lo0 immediately prior to administering the
test to defendant.
In addition, the record contains a letter dated May 11, 1990,
from the Forensic Science Division of the Justice Department. It
stated that the division had inspected and verified the intoxilyzer
in the Rosebud County Sheriff's office and that it met all of the
Division's requirements at the time of installation. The letter
also stated that Officer Moe was a certified operator because he
had completed the Breath Test for Intoxilyzer School which was
required before he completed his police training in 1989.
We have stated "that the District Court has latitude of
discretion in passing on the admissibility of evidence." State v.
Hall (1989), 244 Mont. 161, 169, 797 P.2d 183, 188. We will only
overturn the district court's determination on the admissibility of
evidence when there has been an abuse of discretion. m, 797
P.2d at 188. We hold there was sufficient foundation and that the
District Court did not abuse its discretion in admitting the
results of the alcohol breath test.
IV
Whether the State's references to presumptions based on the
results of an alcohol breath test prejudiced the defendant.
9
Defendant alleges that the State made continual references and
placed evidence before the jury relating to a presumption of
intoxication. In its opening statement, the prosecution stated:
And then a central piece of evidence would be the results
of a breathilizer [sic] test. And we expect that this
evidence to be introduced, will show that Mr. West,
blowing into the machine, registered a point two-seven
alcohol content. And this will be an important number to
keep in mind when you receive the Court ' s instructions as
to what level is the presumotion of intoxication.
[Emphasis added.]
Officer Moe testified in direct examination to the following:
Q. How did he exhibit that lack of understanding?
A. He was just--when I asked him to come along, or
asked him back to my car, he didn't know what I was
asking, and he just acted very intoxicated.
MR. CARSTENSEN: I object, Your Honor, again, and ask
that the answer be stricken.
M R . FORSYTHE: As to intoxicated?
THE COURT: Sustained as to the origin [sic] which
indicated he was very intoxicated.
Q. So that we don't keep going through this, this is an
ultimate conclusion for the jury and we'll ask you not to
state the standard of intoxication ....
....
Q. And your testimony was that you found the maximum of
six points, three for each eye: is that correct?
A. Yes. The normal is if you receive four points,
they're usually at point one. And then the forty-five
degree angle is, if it's there they're usually over about
point one.
MR. CARSTENSEN: Your Honor, I object and move to strike
the answer: it's unresponsive and not proper foundation.
COURT : Do you have an offer of proof?
10
M R . FORSYTHE: NO, 1'11 withdraw that particular question
and answer as to the alcohol levels.
THE COURT: The jury is directed to disregard the
testimony as with respect to any particular percentage of
alcohol level.
In closing, the State made the following argument:
He was at 2.7, 2.7 times .l. S o you know, you have
powerful evidence of intoxication which is based on
scientific results of tests of the air that the defendant
breathed. It's incontrovertible evidence.
MR. CARSTENSEN: I object. I don't believe that's the
law in Montana.
THE COURT: Sustained. The jury will disregard the last
statement of Mr. Forsythe that this is incontrovertible.
You do have the instructions and . . . .
....
Obviously, when your ability to operate a motor vehicle
is diminished or less than what it would be if you were
totally sober, the State and the citizens of this state
have an interest that you do not operate the vehicle out
in public ways in that condition.
M R . CARSTENSEN:I object, Your Honor. I don't believe
that's the state of the law in Montana.
THE COURT: Well, the state of the law in Montana is
stated in the instructions. And the jury is cautioned
not to accept what either counsel says the law is, but to
take the law from the instructions.
In addition, defendant alleges that a statement made by Officer Moe
in the video tape contained a reference that defendant's alcohol
breath test was over the legal limit.
We have previously stated that when counsel opposes the
admission of evidence and the District Court sustains counsel's
objection, strikes the evidence from the record, and instructs the
jury to disregard the evidence, the error that is committed is
11
presumed cured. State v. Staat (Mont. 1991), 48 St.Rep 1041, 1044
(Staat 11). The District Court sustained defendant's objections
relating to any possible references to presumptions of intoxication
and admonished the jury. The District Court also gave the
following jury instruction which read, in part:
If the defendant has an alcohol concentration in his
blood of 0.10 or more at the time of the alleged offense,
you are permitted, but not required to infer that he was
under the influence of alcohol. It is your exclusive
provence to determine whether the facts and circumstances
shown by the evidence warrant the inference to be drawn
by you.
In Leverette, 799 P.2d at 125, we held that:
The solution to the due process problems of using
presumptions in jury charges is not, as was attempted in
this case, to make them burden-of-production shifting
presumptions. The solution is to make the presumptions
unambiguously permissive.
The above instruction is consistent with our holding in Leverette
that presumptions or inferences must be "unambiguously permissive.'I
We hold that any error made by the State's references relating to
the presumption of alcohol was cured by the District Court's
admonishment of the jury and the reading of the above instruction.
With regard to the statement Officer Moe made in the video
tape referring to defendant's breath exceeding the legal limit,
there was no objection made to the playing of the video in front of
the jury. "Failure to make a timely objection during trial
constitutes a waiver of the objection ... .I' Section 46-20-104,
MCA (1989). We hold that there was no error in admitting the video
tape.
12
V
Whether the Justice Court had original jurisdiction because
the penalty imposed for a DUI conviction exceeds the definition of
a misdemeanor.
Defendant argues that because he was fined $300, assessed
costs, given a six month suspended sentence, and was required to
attend an alcohol treatment program which has no particular time
limit, his potential sentence could exceed one year.
The penalty for a second conviction for driving under the
influence of alcohol or drugs requires "a fine of not less than
$300 or more than $500 and by imprisonment for not less than
7 days, at least 48 hours of which must be served consecutively, or
more than 6 months." In addition to the incarceration and fine,
5 61-8-714(4), MCA (1989), requires in part:
[Tlhe defendant shall complete an alcohol information
course at an alcohol treatment program approved by the
department of institutions, which must include alcohol or
drug treatment, or both.
The Idaho Supreme Court addressed a similar issue in State v.
Pruett (Idaho 1969), 428 P.2d 43. The defendant argued that
suspending the license of a person convicted of reckless driving
increased the penalty for such offense beyond the jurisdiction of
the Justice Court. The Court held that:
[Tlhe revocation of a driver's license is not a part of
the penalty provided for violation of our statute
prohibiting driving while intoxicated such that the
jurisdiction of the justice court was exceeded. The
conclusion therein that the deprivation of a driving
13
right or privilege is for the protection of the public
and not punishment of the individual ....
Pruett, 428 P.2d at 49.
The purpose of requiring attendance at an alcohol or drug
treatment program is to protect the public from habitual D U I
offenders. The legislature mandated rehabilitation as well as
punishment in an effort to reduce the number of fatalities related
to drinking and driving on Montana's roads and highways. Requiring
a D U I offender to attend an alcohol treatment program serves the
purpose of protecting the public and not punishing the individual.
With regard to defendant's allegation that paying a $300 fine
and costs totalling more than $500 exceeds the maximum penalty
imposed for misdemeanor offenses, Montana's criminal code
recognizes a distinction between the assessment of fines and costs.
Fines are a monetary punishment imposed when an individual pleads
guilty or is convicted of a criminal offense. Section 46-18-231,
MCA (1989). Cost are paid by a convicted defendant to reimburse
the State for expenses "specifically incurred by the prosecution in
connection with the proceedings against the defendant." Section
46-18-232(1), MCA (1989). In addition, costs are imposed only at
the sole discretion of the district court judge. State v. Pease
(1987), 227 Mont. 424, 434, 740 P.2d 659, 665.
We hold that the imposition of a $300 fine, costs,
incarceration, and treatment included in defendant's sentence does
not amount to a felony and that the Justice Court had original
jurisdiction.
14
VI
Whether the District Court erred when it excluded jury
instructions that the State must prove that the defendant acted
purposely and knowingly.
Defendant based this contention on the premise that driving
under the influence is a felony. For reasons discussed above, we
hold that the District Court did not err in refusing jury
instructions requiring the State to prove mental intent.
We concur:
/
15
February 25, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
RICHARD J. CARSTENSEN
Attorney at Law
P.O. Box 2093
Billings, MT 59103-2093
HON. MARC RACICOT, Attorney General
, Assistant
Justice Building
Helena. MT 59620
MARVIN QUINLIN, County Attorney
Rosebud County
Drawer 69
Forsyth, MT 59327
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Deput