No. 79-04 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

ARTHUR ELDON CAMPBELL, 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth Judicial ~istrict, 

Honorable B. W. Thomas, Judge presiding. 

In and for the County of Hill 

Counsel of Record: 

For Appellant: 

Ralph T. Randono argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard Larson argued, Assistant Attorney General, 

Helena, Montana 

Ronald Smith, County Attorney, Havre, Montana 

Submitted: April 14, 1980 

Decided: 4UG 5- 1980 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

The State initiated this action by filing an information charging appellant Arthur Campbell with one count of 

driving under the influence of alcohol, sixth offense, and 

one count of operating a motor vehicle while adjudged an 

habitual offender. The information was filed in the Twelfth 

Judicial District Court, Hill County, the Honorable B. W. 

Thomas presiding. Approximately two months after the filing 

of the initial charges against Campbell, the District Court 

granted the State's motion to file an amended information 

adding a third count to the charges. The added count charged 

Campbell with negligent homicide. 

Campbell entered pleas of not guilty to all three 

counts charged in the amended information. He also filed a 

motion to suppress testimony regarding certain identification testimony and the results of a blood test. Subsequent 

to a hearing on the motion to suppress, the trial court 

ruled that the identification evidence was admissible but 

that the blood test results should not be admitted. The 

State moved to reopen the suppression hearing for the presentation of further evidence. The District Court granted the 

motion and conducted another hearing into the matter of the 

admission of a blood test. After the hearing, the court 

entered a supplemental order denying Campbell's motion to 

suppress the blood test results. 

Prior to trial on the charges, Campbell moved to sever 

Count I1 of the information relating to the habitual traffic 

offender charge. The District Court denied the motion. 

Campbell came to trial on the charges in the amended 

information on May 14, 1979. The jury found him guilty of 

all charges. Campbell moved for a new trial or a judgment 
notwithstanding the verdict. The motions were denied, and 

this appeal followed. 

Appellant Campbell began the day of June 6, 1978, by 

drinking a beer. After drinking somewhere between ten and 

twelve beers, Campbell and his two companions, Vincent and 

Manuel Moreno, borrowed a Plymouth automobile to drive to 

Fresno Reservoir to go swimming. 

Gus Keller observed the Plymouth heading west from 

Havre on Highway 2 toward Fresno. Keller was also headed 

west on Highway 2. The Plymouth passed his truck. Keller 

testified that the Plymouth "tapped" his truck twice as it 

passed. Keller also observed a highway patrol car approaching from the west with its lights flashing. Seconds later, 

Keller saw what appeared to be a puff of dust along the road 

ahead. 

The highway patrol car Keller observed in the distance 

was being driven by Patrolman Gordon Hage. Patrolman Hage 

was proceeding east on Highway 2 to the scene of an accident. He was driving approximately 90 miles per hour with 

his lights flashing and siren on. The puff of dust Keller 

saw was caused by the collision of the Plymouth that Campbell 

was driving and Hage's patrol car. The collision occurred 

in the patrolman's lane near the edge of the highway. The 

Plymouth had turned across the highway in front of the 

oncoming patrol car. Patrolman Hage applied his brakes and 

veered to the right but was unable to avoid the collision. 

There was no indication that the driver of the Plymouth 

attempted to stop his vehicle before the collision. 

There were no witnesses to the collision other than the 

occupants of the vehicles. None of them remember the collision itself. Witnesses who arrived on the scene shortly 
after the collision found Officer Hage still inside his 

vehicle. They helped him from the car just as it burst into 

flames. inc cent and Manuel Moreno were discovered lying on 

the ground some distance from the Plymouth. Campbell was 

discovered in the front seat of the vehicle with his right 

foot wedged under the car's brake pedal and his body angled 

so that his head was resting on the seat near the passenger 

door. 

All the parties involved in the accident were severely 

injured. They were taken immediately to the hospital in 

Havre and treated for injuries. An attempt was made to 

question Campbell while he was being treated. Patrolman 

Seyfert of the Highway Patrol attempted to talk with Campbell 

but was told by a nurse that it would be best if he did not 

do so. Patrolman Walston and Deputy Sheriff Glover did talk 

to Campbell. They were unable to get any coherent answers 

from him. Campbell did respond to some questions about the 

location of his pain and once spelled his name in the absence of the officers. Generally, however, Campbell showed 

confusion and incoherence. 

Af ter these attempts to question Campbell, Patrolman 

Seyfert requested that blood samples be taken from the occupants of the Plymouth. A blood sample was subsequently 

taken from Campbell. The ~istrict Court found that Campbell 

was not placed under arrest prior to the taking of the blood 

sample, that he was not advised of the purpose for the 

taking of the blood sample, and that he did not consent to 

the taking of the sample. 

Campbell and Manuel Moreno ultimately recovered from 

their injuries. Patrolman Hage remains paralyzed as a 

result of injuries he suffered in the accident. inc cent 
Moreno did not recover from the injuries he suffered. He 

died July 14, 1978. 

At trial the State introduced the results of the blood 

alcohol test administered to Campbell shortly after the 

accident. The test showed Campbell's blood alcohol content 

was -20 percent. The State also introduced evidence tending 

to show Campbell was driving the Plymouth when the accident 

occurred. Patrolman Harold Wood was called as an expert 

witness. Patrolman Wood testified that his examination of 

the evidence at the accident scene led him to conclude that 

Campbell had been driving when the Plymouth collided with 

the patrol car. Sandy Bryant, a respiratory therapy technician who treated Campbell during his recovery from injuries 

suffered in the accident, testified about a conversation she 

overheard between Campbell and Manuel Moreno. Ms. Bryant 

stated Moreno asked Campbell, "Why did you do that?" to 

which Campbell replied, "You told me to see if I couldn't 

hit him." Ms. Bryant said the conversation took place about 

a week after the accident and that she thought the men were 

talking about the accident. 

Campbell introduced evidence at trial indicating that 

he was not driving when the cars collided. Dr. Mark Jacobson, 

a physicist, testified that his analysis of the accident led 

him to believe the driver of the Plymouth would have been 

thrown from the car on impact. This testimony implied 

Campbell was not driving since he was not thrown from the 

car. Further, Manuel Moreno and Campbell both testified 

that Vincent Moreno was driving at the time of the accident. 

However, in a statement made shortly after the accident and 

before Vincent Moreno died, Manuel Moreno said Campbell had 

been driving when the accident occurred. 
Campbell raises the following issues on appeal: 

1. id the District Court err in admitting the results 

of Campbell's blood test taken shortly after the accident 

into evidence? 

2. id the District Court have jurisdiction to hear 

the charge of driving while under the influence of alcohol? 

3. Did the District Court err in refusing to sever 

Count I1 of the amended information from the other two 

counts? 

4. Is the jury's verdict supported by sufficient 

evidence? 

The first issue Campbell raises presents three questions for consideration. The first question presented is 

whether Campbell was unconscious or otherwise in a condition 

rendering him incapable of refusing to consent to the taking 

of the blood sample. This question arises because Campbell 

was not placed under arrest before the taking of the blood 

test. An arrest is a prerequisite to the taking of a blood 

sample if a defendant is conscious and capable of refusing 

to consent to the test. State v. Mangels (1975), 166 Mont. 

190, 193, 531 P.2d 1313. Since Campbell was not arrested, 

the test results would be inadmissible here if Campbell was 

conscious and capable of refusing consent. 

The State does not contend that Campbell was unconscious 

when the blood test was administered. The question, therefore, is whether Campbell was in a condition rendering him 

incapable of refusing to consent to the taking of the sample. 

The standard for determining whether a party is in a condition rendering the party incapable of refusing consent is 

set out in Mangels where we said, ". . . we only require 

that the incapacity be determined on the basis of the best 
evidence which is reasonably available to the officer . . ." 

166 Mont. at 194, 531 P.2d at 1315. Applying that standard 

in Mangels, we found that a highway patrolman improperly 

determined that Mangels was incapable of refusing consent to 

the test where Mangels appeared confused, was suffering from 

abrasions after an accident, and where the patrolman did not 

talk to Mangels at any time before the taking of the blood 

sample. 166 Mont. at 192, 194, 531 P.2d at 1313, 1314. 

The District Court in this case applied the Mangels 

test and determined that the best evidence reasonably available to the officers here indicated Campbell was in a condition rendering him incapable of refusing to consent to a 

blood test. The following evidence was introduced at the 

suppression hearing to support this determination by the 

District Court. Patrolman Seyfert testified that when he 

arrived on the accident scene he found Campbell lying on the 

front seat of the Plymouth. Seyfert stated Campbell's face 

was covered with blood and that Campbell was moaning and 

groaning. Seyfert said Campbell did not respond to the 

questions he asked him. Patrolman Seyfert further stated 

that when he attempted to question Campbell at the hospital 

a short time after the accident, a nurse told him that it 

was best not to try to see Campbell. 

Patrolman Walston stated that he attempted to question 

Campbell outside the X-ray room at the hospital shortly 

before the taking of the blood sample. Walston testified 

that he asked Campbell his name and several other questions 

but got no meaningful response. He said that at one point 

Campbell did answer a question as to his name but gave 

another name. Patrolman Walston said Campbell mainly swore 

and asked for "Dot" during the time he attempted to question him. 
Deputy Sheriff Glover asked Campbell questions for 

about five minutes after Campbell had been taken to the 

hospital. Glover stated that he got only one coherent 

answer from Campbell during the questioning. Glover said 

Campbell gave him a name in response to a question about his 

name. However, the name Campbell gave was not his own. 

This evidence indicates the District Court was correct 

in determining Campbell was incapable of refusing to consent 

to the blood test under the Mangels standard. In Mangels 

the officers only had evidence of confusion on the part of 

the defendant, minor injuries, and did not attempt to question the defendant. Here, the officers observed that 

Campbell was seriously injured and in great pain, were 

advised by a nurse that it would be better not to try to 

talk to him, and could not get him to respond coherently to 

questions when they did talk with him. Given this evidence 

available to the officers, it appears they properly determined that Campbell was in a condition rendering him incapable of refusing to consent to a blood test. 

The second question presented by this issue is whether 

Montana's implied consent statute only allows the taking of 

a blood sample from an individual after a valid arrest even 

if the individual is unconscious or otherwise incapable of 

refusing to consent to the test. Mangels also spoke to this 

question. In interpreting the implied consent statute, we 

specifically held that an arrest was not a prerequisite to 

the taking of a sample if the party tested was unconscious 

or incapable of consenting to the test. 166 Mont. at 193, 

531 P.2d at 1314. Thus, if Mangels is given effect here, 

the rule set out in that case disposes of this question. 
Campbell argues that Mangels should be overruled insofar 

as it holds an arrest is not a prerequisite to administering 

a blood test when a party is unconscious or incapable of 

consenting to the test. Campbell contends this aspect of 

Mangels should be overturned because of the plain language 

of the implied consent statute and the intent of the legislature in enacting the statute as evidenced by the title of 

the original act. These are the same arguments originally 

made in Mangels. See 166 Mont. at 193, 531 P.2d at 1314. 

The arguments did not persuade us then and are no more 

persuasive now. It is apparent from a reading of the implied 

consent statute that an arrest is not a prerequisite to 

administering a blood alcohol test to a party who is unconscious or otherwise incapable of consenting to the test. 

We, therefore, reject Campbell's argument and affirm the 

decision made in Mangels. 

The third question presented by this issue is whether 

the Fourth Amendment protection against unlawful searches 

prohibits the taking of a blood test from an unconscious or 

otherwise incapable person without an arrest. 

We previously addressed this issue in State v. Deshner 

(1971), 158 Mont. 188, 489 P.2d 1290. In Deshner police had 

a blood sample taken from the defendant shortly after he was 

involved in an automobile accident. The defendant was 

unconscious when the sample was taken. The police did not 

arrest the defendant before requesting the blood sample. 

The defendant asserted the results of the blood test should 

not be admitted at his trial for manslaughter. He contended 

that taking the blood sample without placing him under 

arrest constituted an unconstitutional search. The Court 

found no merit in defendant's argument. 158 Mont, at 192, 
489 P. 2d at 1292. The Court stated the taking of the blood 

sample under these circumstances was constitutionally proper 

because the officer might reasonably have believed he was 

confronted with an emergency situation in which the evidence 

would be destroyed if time was taken to procure a warrant, 

and the procedures used in taking the blood were reasonable. 

158 Mont. at 193, 489 P.2d at 1293. 

Campbell attacks the holding in Deshner by inference. 

He does so by citing cases from other jurisdictions which 

reach a result contra to the holding in Deshner. There is a 

split of authority on the question of whether an arrest is 

required before a blood sample can be taken from an unconscious person. Annot., 72 A.L.R.3d 325, 84 (1976); 2 LaFave 

Search & Seizure S5.4 (b) at 342-344. However, a United 

States Supreme Court case decided since Deshner and at least 

one commentator's analysis indicate we should reject Campbell's 

argument to adopt the line of cases contra to Deshner. 

In Cupp v. Murphy (1973), 412 U.S. 291, 93 S.Ct. 2000, 

36 L.Ed.2d 900, a defendant voluntarily went to a police 

station to discuss the strangulation death of his estranged 

wife with the authorities. The police noticed a dark spot 

on the defendant's finger while questioning him. The police 

asked the defendant if they could take a sample of scrapings 

from his fingernails. The defendant refused to consent to 

the scraping. Without consent, a warrant or an arrest, the 

police took the fingernail scraping samples. The samples 

revealed incriminating evidence which was introduced at the 

defendant's homicide trial. The Court held the search did 

not violate the defendant's Fourth Amendment rights. A 

quote from Mr. Justice Blackmun's concurring opinion summarizes the holding of the Court: 
"The Court today permits a search for evidence 

without an arrest but under circumstances where 

probable cause for an arrest existed, where 

the officers had reasonable cause to believe 

that the evidence was on the respondent's person, and where that evidence was highly destructible. . ." 412 U.S. at 300, 93 S.Ct. at 

2006, 36 L.Ed.2d at 908. 

In discussing Cupp and the split of authority on the 

issue of whether an arrest is an absolute prerequisite to 

the taking of a blood sample from an unconscious party in a 

drunk driving situation, LaFave, supra, states: 

". . . Indeed, the case for permitting the 

taking of the blood sample upon probable cause 

that the defendant is intoxicated without first 

arresting him is, if anything, stronger than 

the case for the searches conducted in Cupp 

and Franklin. In the blood sample case, as opposed to those cases, there is no room whatsoever for the argument that the lack of a formal 

arrest may decrease somewhat the chances that 

the evidence will be destroyed, for the 'evanescent' character of the evidence is inherent 

in its nature and does not depend upon any 

motive of the defendant to destroy it. That 

is, the need for the blood sample arises out 

of the fact, as stated in Schrnerber v. California, 'that the percentage of alcohol in the 

blood begins to diminish shortly after drinking 

stops,' an emergency which is in no way affected 

by whether or not the defendant has been formally arrested. It is the height of formalism, 

to say the least, to suggest that a warrantless 

search on probable cause in order to meet this 

emergency is reasonable only if the police 

first declare the hospitalized defendant under 

arrest. In particular, it 'would be ridiculous 

to require a police officer to perform some 

formal ritual of arrest over the unconscious 

body of a critically injured person who was a 

party to a fatal automobile accident. ' The 

claim that the contrary position 'provides 

some measure of assurance that probable cause 

is based upon considerations independent of the 

blood-alcohol test results' is untenable, as 

the need for a court to determine that probable 

cause existed prior to the test is present under 

either rule." 85.4 (b) at 343-344. 

The above summary of Cupp and LaFave's comments on the 

question indicate there is no per se arrest requirement for 

a warrantless search. That analysis is consistent with 

Deshner and the line of authority from other jurisdictions 
that hold an unconscious driver need not be arrested before 

a blood sample can be taken. Cupp and LaFave's comments 

thus provide a solid basis for continuing to adhere to the 

Deshner holding. We, therefore, reject Campbell's argument 

that the line of authority contra to Deshner should be 

adopted and reaffirm the Deshner decision. 

Having analyzed the three separate questions Campbell 

raises under the first issue, it is now necessary to summarize the analysis to resolve the ultimate question of 

whether the District Court erred in admitting the results of 

the blood test into evidence. Initially, the evidence shows 

the District Court properly found that Campbell was in a 

condition that rendered him incapable of refusing to consent 

to the taking of the blood sample when the sample was taken. 

This means the absolute arrest requirement for conscious 

individuals who are capable of refusing consent established 

by statute and explained in Mangels does not come into play. 

Thus, the blood test results are not automatically inadmissible here because no arrest occurred. 

Further, Campbell only repeats arguments we previously 

rejected in Mangels to support his contention that Montana's 

implied consent statute requires an arrest before a blood 

sample can be taken even if an individual is unconscious or 

otherwise in a condition rendering the party incapable of 

refusing to consent to the taking of the sample. The arguments were not persuasive when presented in Mangels and are 

no more so now. Therefore, we reaffirm our decision that 

Montana's implied consent statute does not contain an absolute arrest requirement before a blood sample can be taken 

from an unconscious or otherwise incapable person and hold 

the blood test results here are admissible under ~ontana's 

implied consent statute. 
 ina ally, campbell's Fourth Amendment claim lacks merit. 

We rejected Campbell's argument in Deshner. Cupp supports 

the decision. Thus, the blood test results are not inadmissible on the basis of Campbell's constitutional argument. 

This summary shows none of the questions raised by 

Campbell constitute a basis for refusing to admit the results to the blood test. Therefore, the District Court did 

not err in admitting the results into evidence. 

The second issue raised by Campbell involves the District Court' s jurisdiction to hear the driving while intoxicated charges brought against him. Jurisdiction of the 

District Court over criminal matters depends on the maximum 

sentence that can be imposed for committing the crime. When 

the maximum sentence increases to give the District Court 

jurisdiction because of repeated offenses, proof of prior 

offenses does not become an element that must be proved at 

trial and can be proved at any time until sentencing. 

Therefore, failure to introduce evidence of prior convictions at trial does not deprive the District Court of jurisdiction. State v. Nelson (1978), - Mont. - , 583 P.2d 

435, 437-438, 35 St.Rep. 1337, 1339-1341. 

Campbell contends here that the District Court did not 

have jurisdiction over the D.W.I. charge brought against him 

because the State introduced no evidence at trial proving 

prior D.W.I. convictions. This contention lacks merit under 

Nelson and does not constitute grounds to dismiss the D.W.I. 

charge filed against Campbell. 

The third issue Campbell raises concerns the severance 

of Count I1 of the information filed against him from Counts 

I and 111. Count I1 of the information charged Campbell 

with driving while adjudged an habitual traffic offender. 
Count I of the information is the D.W.I. charge, and Count 

I11 is the negligent homicide charge. Campbell contends 

Count I1 of the information should have been severed from 

the other counts based on section 46-11-404(4), MCA. That 

section reads in pertinent part: 

"If it appears that a defendant or the state 

is prejudiced by a joinder of related prosecutions . . . the court may order separate 

trials . . . or provide any other relief as 

justice may require." 

Campbell asserts that joining the habitual offender charge 

with the other two charges here prejudiced his case and that 

he should, therefore, have been granted severance under section 46-11-404 (.4), MCA. 

We have set out three basic kinds of prejudice that may 

0-k% 

occur on the joinder of similar offenses. State v. 4Azbe~~ 

(1976)l 170 Mont. 480, 489, 555 P.2d 509. The first kind of 

prejudice results when the jury considers a person facing 

multiple charges to be a bad man and tends to accumulate 

evidence against him until it finds him guilty of something. 

The second type of prejudice manifests itself when proof of 

guilt on the first count in an information is used to convict the defendant of a second count even though the proof 

would be inadmissible at a separate trial on the second 

count. The third kind of prejudice occurs when the defendant wishes to testify on his own behalf on one charge but 

oC/&fli-- 

not on another. O&esmI 170 Mont. at 489, 555 P.2d at 515. 

Determining whether there has been prejudicial joinder 

involves weighing the prejudice incurred by the defendant 

because of a joint trial against the judicial economy resulting from a joint trial. This balancing process is left 

to the sound discretion of the trial judge. Absent a showing of abuse of that discretion, an appellate court should 
not substitute its judgment for that of the trial court. 

United States v. Cuesta (5th Cir. 1979), 597 F.2d 903, 919. 

In striking the balance between prejudice to a defendant and judicial economy, considerations of judicial economy 

exert strong pressure in favor of joint trials. United 

States v. Dohm (5th Cir. 1979), 597 F.2d 535, 540. The 

factors that provide the basis for the predisposition for 

joint trials include expedition of the administration of 

justice, reduction in the congestion of trial dockets, 

conservation of judicial time, reduction of burden on citizens who serve on juries in terms of time and money sacrificed, and avoidance of the necessity of recalling witnesses 

who would otherwise have to testify only once. United 

States v. Brady (9th Cir. 1978), 579 F.2d 1121, 1128, cert. 

denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41. 

Further, the burden of showing prejudice rests on the 

0Avdefendant. Qskeyi, 170 Mont. at 489, 555 P.2d at 515. In 

showing prejudice, it is not sufficient that the defendant 

prove some prejudice or that a better chance of acquittal 

exists if separate trials are held. Rather, the defendant 

must show the prejudice was so great as to prevent a fair 

trial. Dohm, 597 F.2d at 539; United States v. Martinez 

(1st Cir. 1973), 479 F.2d 824, 828. Given this high standard of proof and the deference afforded the discretion of 

the trial court's judgment on balancing prejudice against 

judicial economy, reversal of a decision not to sever criminal charges is seldom granted. Brady, 579 F.2d at 1127; 

United States v. Barrett (7th Cir. 1974), 505 F.2d 1091, 

1106, cert. denied, 421 U.S. 964, 95 S.Ct. 1951, 44 L.Ed.2d 

Under this standard of review, we must now consider the od*.r2--- 

different kinds of prejudice listed in to determine 
the merits of Campbell's severance claim. The first type of 

prejudice--prejudice resulting from the jury believing the 

defendant to be a bad man because of multiple charges--has 

seldom been found sufficient to warrant severance. 

oA 

Qsbwa, 

170 Mont. at 489, 555 P.2d at 514-515. In fact, it has been 

specifically held that the prejudice incurred by a defendant 

from being held out to the jury as an "habitual offender" is 

not alone sufficient to entitle the defendant to separate 

trials. Pummill v. United States (8th Cir. 1961), 297 F.2d 

34, 36; see also Wright, Federal Practice and Procedure S222 

We agree that the mere inclusion of an habitual offender 

count in an information is insufficient to automatically 

require severance of that charge from other charges. It 

would be contrary to the considerations of judicial economy 

set out above to require separate trials whenever one count 

of an information charges a party with being an habitual 

offender. That would be especially true in this case where 

all the charges stemmed from the same incident and the main 

fact in issue as to all the charges was whether or not 

Campbell was driving. To grant severance would require 

essentially the same evidence about the same occurrence to 

be introduced at two different trials. We, therefore, do 

not find the District Court abused its discretion in holding 

Campbell's motion for severance should not have been granted 

because the jury considered him a bad man. 

The second kind of prejudice from joinder is present 

when the jury uses proof of guilt on one count in an information to convict a defendant on another count in the information even though the proof would have been inadmissible at a 

separate trial on the second count. No prejudice of this 
nature will be found when the evidence presented at a joint 

trial is simple and distinct. Commonwealth v. Peterson 

(1973), 453 Pa. 187, 307 A.2d W, 271; Drew v. United 

sw 

States (D.C. Cir. 1964), 331 F.2d 85, 91. This rule is 

based on the rationale that when the charges are few and the 

evidence straightforward, there is no reason to assume the 

jury was confused and could not keep the relevant evidence 

separate. United States v. Jamar (4th Cir. 1977), 561 F.2d 

1103, 1107-1108; Peterson, 307 A.2d at 271, citing United 

States v. Lotsch (2nd Cir. 1939), 102 F.2d 35, 36, cert. 

denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500. See 

also United States v. Luna (1st Cir. 1978), 585 F.2d 1, 5, 

cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157. 

Here the charges are few and the evidence straightforward. Only three charges were brought against Campbell 

at the trial. The main fact in issue concerning all three 

was whether Campbell was driving at the time the accident 

occurred. Proof that Campbell was driving was an element of 

all the crimes charged by the information. Thus, evidence 

pertaining to that fact would have been admitted even if the 

trials on the different counts had been separated. The 

other evidence introduced at the trial, such as proof of 

Campbell's blood alcohol content and the fact that Campbell 

had been adjudged an habitual offender at the time the 

accident occurred, was neither voluminous nor complex. 

Under these facts, we cannot assume the jury was confused 

and did not consider only the relevant evidence in reaching 

a verdict on each count of the information. Therefore, we 

find any prejudice of this nature insufficient to hold the 

District Court abused its discretion in denying Campbell's 

motion for severance. 
The third type of prejudice occurs when the defendant 

wants to testify on his own behalf on one charge but not on 

the others. Campbell stated in this case that he wanted to 

testify as to the D.W.I. and negligent homicide charges, but 

not the habitual offender charg . 0Yu.h 

As we pointed out in &WXYFTQ the federal courts have 

only considered this type of prejudice where the alleged 

offenses were totally separate as to time, place and evidence. 170 Mont. at 489, 555 P.2d at 515. It has also been 

held that a defendant cannot claim this type of prejudice 

when the state does not exploit the fact that the defendant 

takes the stand by cross-examining the defendant as to the 

charge about which the defendant did not want to testify. 

Bradley v. United States (D.C. Cir. 1969), 433 F.2d 1113, 

1123. 

Here Campbell fails to demonstrate prejudice under 

either of these criteria. The charges all stemmed from one 

incident that occurred at the same time and place, and the 

evidence introduced to prove all the charges was similar. 

Further, Campbell did take the stand and testified that he 

was not driving the car when the accident occurred. The 

State on cross-examination limited its questions mainly to 

Campbell's activities on the day of the accident. The State 

did not question Campbell about his habitual offender status. 

Under these circumstances, we do not find the District Court 

abused its discretion in denying Campbell's motion for 

severance based on this type of prejudice. 

Under the above analysis, Campbell did not demonstrate 

any of the kinds of prejudice necessary to require the 

District Court to order separate trials on the charges 

contained in the information. Therefore, the District Court 

did not err in failing to grant Campbell's motion to sever. 
The final issue Campbell raises concerns the sufficiency of the evidence to support the jury's verdict. It is 

the duty of the jury to hear the evidence and to decide if 

the evidence presented is sufficient to support a conviction 

on the charges brought against a defendant. This Court will 

not disturb the decision of the jury as to the sufficiency 

of the evidence if the record contains substantial evidence 

to support the decision. Deshner, 158 Mont. at 191, 489 

P.2d at 1290. 

Here the main evidentiary question was whether Campbell 

was driving when the accident occurred. The evidence on 

this question introduced at trial was conflicting. Campbell 

introduced the following evidence to support his assertion 

that he was not driving when the accident occurred: (1) His 

testimony that he was not driving; (2) Manuel Moreno's 

testimony at trial that Vincent Moreno was driving when the 

accident occurred; (3) the expert testimony of physicist Dr. 

Mark Jacobson that the driver of the car would have been 

thrown from the car coupled with the evidence that Campbell 

remained in the car on impact; and (4) testimony to refute 

the theory advanced by Patrolman Wood tending to show Campbell 

was driving when the accident occurred. 

The State presented the following evidence to the jury 

to show Campbell was driving when the accident happened: 

(1) A statement by Manuel Moreno after the accident but 

before Vincent Moreno died that Campbell was driving when 

the accident occurred; (2) the expert testimony of Highway 

Patrolman Harold Wood that the driver of the car would have 

remained in the car on impact, coupled with the testimony 

that Campbell was found in the car af ter the accident; (3) 

testimony to refute the theory advanced by Dr. Jacobson 
tending to show Campbell was not driving when the accident 

occurred; (4) testimony by Sandra Bryant concerning the 

accident during which Moreno asked Campbell, "Why did you do 

that?" to which Campbell replied, "You told me to see if I 

couldn't hit him." 

Presented with the conflicting evidence, the jury 

concluded Campbell was driving when the accident occurred. 

While evidence to prove the contrary conclusion is present 

in the record, the evidence introduced by the State is 

substantial and does support the conclusion that Campbell 

was driving when the accident occurred. Therefore, we will 

not disturb the jury's verdict. 

Affirmed. 

* 

We concur: 
Mr. Justice John C. Sheehy, concurring specially: 

I concur in the result foregoing. 

I want to point out that any person who operates a 

motor vehicle upon the public highways of this state is 

deemed to have given consent to a chemical test of his 

blood if arrested by a peace officer for driving while under 

the influence of intoxicating liquor. Section 61-8-402(1), 

MCA. A person who is unconscious or who is otherwise in a 

condition rendering him incapable of refusal, is deemed not 

to have withdrawn his consent. Section 61-8-402(2), MCA. 

Campbell's implied consent to the blood test is not considered 

withdrawn here because Campbell fits within the narrow 

exceptions set forth in Mangels, supra, that an arrest is 

not necessary where a person qualifies as an unconscious or 

incapable person under section 61-8-402(2), MCA. 

I want my position regarding the second issue, the District 

Court's jurisdiction of the offense of driving while under 

the influence of alcohol, to be clear. 

In section 61-8-401, MCA, it is provided that driving 

under the influence is unlawful and punishable as provided 

in section 61-8-714(1), MCA. 

Section 61-8-714(1), MCA provides that a first conviction 

of driving while intoxicated shall be punished by a fine of 

not less than $100 or more than $500. On a second conviction, 

the driver is punished by a fine of not less than $300 or 

more than $500 to which may be added in the discretion of 

the court imprisonment for 30 days. On a third or subsequent 

conviction, the driver is punished by imprisonment of not 

less than 30 days or more than 1 year, to which may be added 

in the court's discretion, a fine of not less than $500 or 

more than $1,000. 
The difference in the penalties for the successive convictions becomes important when one considers whether the 

jurisdiction of the District Court or the justice court 

applies. 

Under section 3-5-302(1), MCA, the District Court is 

given original jurisdiction in all felony criminal cases 

and "all cases of misdemeanor not otherwise provided for." 

The justice court, on the other hand, is given criminal 

jurisdiction of all misdemeanors punishable by a fine not 

exceeding $500 or imprisonment not exceeding 6 months or 

both. Section 3-10-303 (1) , MCA. 

From the statutes, therefore, District Courts have no 

jurisdiction of a misdemeanor involving a first conviction 

or a second conviction of driving while intoxicated. On the 

other hand, the District Court would have exclusive criminal 

jurisdiction of driving while intoxicated charges involving 

3 or more convictions. Since Campbell was charged with a 

sixth offense of driving while intoxicated, the District 

Court had exclusive jurisdiction of this count. 

Justice 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later.