### 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: 

## 4UG5- 1980Mr. 

### Justice John Conway Harrison delivered the Opinion of theCourt. The Stateinitiated thisactionby filingan information charging appellantArthur Campbell with one count of drivingunder the influence of alcohol, sixth offense, and

one count of operating 

### a motor vehicle while adjudged an habitual offender. The information was filed inthe Twelfth Judicial District 

### Court, Hill

### County, the Honorable B. W. 

### Thomas presiding. Approximately two months after the filing of the initialcharges againstCampbell, the DistrictCourt granted the State's motion tofilean amended information adding a third count tothe charges. The added count charged Campbell with negligent homicide. Campbell entered pleas of not guilty to all 

### three counts charged inthe amended information. He

### also filed a motion to suppress testimony regarding certain identification testimony and theresultsof a blood test. Subsequent to a 

### hearing on themotion to suppress, the trialcourt ruled that the identificationevidence was admissiblebut that the blood 

### test results should notbe admitted. The Statemoved toreopen the suppression hearing for the presentation of further evidence. The District 

### Court granted the motion and conducted another hearing into thematter 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 totrialon the charges, Campbell moved to sever Count I1 

### of the information relating to the habitual traffic offender charge. The District

### Court denied themotion. Campbell came to trialon the charges inthe amended information on May 14, 

### 1979. The jury found him guiltyof allcharges. Campbell moved for a new trialor a judgmentnotwithstanding 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 togo swimming. Gus Keller observed the Plymouth heading west from Havre on Highway 2 toward Fresno. Keller was also headed 

### weston 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

### westwith 

### its lights flashing. Seconds 

### later, Keller saw what appeared tobe a puff of dust along the road ahead. The highway patrol car Keller observed in the distance

was being drivenby Patrolman Gordon Hage. Patrolman Hage

was proceeding easton Highway 

### 2 to the scene of an accident. He

### was driving approximately 90 

### milesper hour with his lights flashing and sirenon. 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 inthe patrolman's lane near the edge of the highway. The Plymouth had turned across the highway infrontof the oncoming patrol 

### car. Patrolman Hage applied his brakes and veered to the right but

### was unable toavoid the collision. There 

### was no indication that the driver of the Plymouth attempted to stop hisvehiclebefore 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 shortlyafter the collision found Officer Hage 

### still inside his vehicle. They helped him from the car just asitburst into flames. 

### inc cent and Manuel Moreno 

### were discovered lying on the ground some distance from the Plymouth. Campbell was discovered inthe front 

### seat of the vehicle with his right footwedged under the car's brake pedal and hisbody angled

so thathishead was resting on the seatnear the passenger door.Allthe parties involved inthe accidentwere severely injured. They 

### were taken immediately to the hospital in Havre and treated for injuries. An attempt

### wasmade to question Campbell while he 

### was being treated. Patrolman Seyfertof the Highway Patrol attempted to talkwith Campbell but

### was told by 

### a nurse that 

### itwould be best if he did not do so. Patrolman Walston and Deputy Sheriff Glover did talk toCampbell. They 

### wereunable to get any coherent answers from him. Campbell did respond to some questions about the location of hispain and once spelled his name in the absence of the officers. Generally, however, Campbell showed confusion and incoherence. Af

### ter these attempts toquestion Campbell, Patrolman Seyfertrequested thatblood 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 arrestprior to the taking of the blood sample, that he 

### was not advised of the purpose for the taking of theblood 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 injurieshe suffered inthe accident. 

### inc cent

### Moreno did not recover from the injurieshe suffered. He 

### died July 14, 

### 1978. At

### trialthe Stateintroduced the results of the blood alcohol test administered toCampbell 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 thathis examination of the evidence atthe accident scene led him toconclude that Campbell had been driving when the Plymouth collidedwith the patrol car. Sandy Bryant, a 

### respiratory therapy technicianwho treated Campbell during hisrecovery from injuries suffered inthe accident, testified about a conversation she overheard between Campbell and Manuel Moreno. Ms. 

### Bryant statedMoreno asked Campbell, "Why did you do that?" to which Campbell replied, "You told

### me to see if I 

### couldn't hithim." 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 attrial indicating that he 

### was not driving when the 

### cars collided. Dr. 

### Mark Jacobson,

a 

### physicist, testified thathis analysis of the accident led him tobelieve the driver of the Plymouth would have been thrown from the caron impact. This testimony implied Campbell was 

### not driving sincehe was not thrown from the

car. Further, Manuel Moreno and Campbell both testified thatVincent Moreno was driving atthe time

### of the accident. However, ina statementmade shortly after the accident and beforeVincent Moreno died, Manuel Moreno said Campbell had been driving when the accidentoccurred.Campbell raises the following issues on appeal: 1. id the DistrictCourt err inadmitting the results of Campbell's blood test taken shortly after the accident into evidence? 2. 

### id the DistrictCourt have jurisdiction to hear the charge of driving while under the influence of alcohol? 3. Did the DistrictCourt 

### err inrefusing to sever Count I1 of the amended information from the other two counts? 

### 4. Is the jury's verdict supported by sufficient evidence? The firstissue Campbell raisespresents three questions for consideration. The firstquestion presented 

### is whether Campbell was unconscious orotherwise ina condition rendering him incapable of refusing toconsent to the taking of the blood sample. This question arisesbecause Campbell

was not placed under arrestbefore the taking of the blood test. An arrest

### is a prerequisite to the taking of 

### a blood sample if a defendant 

### isconscious and capable of refusing to consent to the test. Statev. Mangels (1975), 166 Mont. 190, 193, 531 P.2d 1313. Since Campbell was not arrested, the 

### test resultswould be inadmissible here if Campbell was conscious and capable of refusing consent. The Statedoes not contend that Campbell was unconscious when the blood 

### test was administered. The question, therefore, 

### iswhether Campbell was in a condition rendering him incapable of refusing toconsent to the taking of the sample. The standard for determining whether a party 

### isina condition rendering the party incapable of refusing consent is 

### set out inMangels where 

### we said, 

# ".

. . we only require that the incapacity be determined on the basis of the bestevidence which 

### isreasonably available to the officer 

# . 

# . ." 166Mont. 

### at 194, 531 P.2d at1315. Applying that standard inMangels, we found that a highway patrolman improperly determined thatMangels was incapable of refusing consent to the testwhere Mangels appeared confused, was suffering from abrasions after an accident, and where the patrolman did not talk toMangels atany 

### timebefore the taking of the blood sample. 166 Mont. at192, 194, 531 P.2d at1313, 1314. The DistrictCourt in this case applied theMangels test and determined that the best evidence reasonably available to the officers here indicated Campbell was ina condition rendering him incapable of refusing to consent to a blood test. The following evidence was introduced atthe suppression hearing to support thisdetermination by the DistrictCourt. Patrolman Seyfert testified thatwhen he arrived on the accident scene he found Campbell lying on the front seatof thePlymouth. Seyfert stated Campbell's face

was covered with blood and thatCampbell was moaning and groaning. Seyfert said Campbell did not respond to the questions he asked him. Patrolman Seyfert further stated thatwhen he attempted toquestion Campbell atthe hospital

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

was best not to try to see Campbell. Patrolman Walston stated thathe attempted to question Campbell outside the X-ray room atthe hospital shortly before the taking of the blood sample. Walston testified thathe asked Campbell his name and several other questions but got no meaningful response. He said that atone 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 

### timehe attempted to question him.Deputy Sheriff Glover asked Campbell questions for about fiveminutes after Campbell had been taken to the hospital. Glover stated thathe got only one coherent

answer from Campbell during the questioning. Glover said Campbell gave him a name inresponse to a question about his

name. However, the name Campbell gave was not his own. This evidence indicates the DistrictCourtwas correct indetermining Campbell was incapable of refusing to consent to the blood 

### test under the 

### Mangels standard. InMangels the officers only had evidence of confusion on the part of the defendant, minor injuries, and did not attempt toquestion the defendant. 

### Here, the officers observed that Campbell was seriously injured and ingreatpain, 

### were advised by a nurse that 

### it would be better not to try to talk to him, and could not gethim torespond coherently to questions when they did talk with him. Given this evidence available to the officers, 

### it appears they properly determined that Campbell was ina condition rendering him incapable of refusing toconsent to a blood 

### test. The second question presented by this issue 

### iswhether Montana's implied consent statute only allows the taking of

a blood sample from an individual after a valid arresteven if the individual 

### isunconscious 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 arrestwas not a prerequisite to the taking of a sample if the party tested was unconscious

or incapable of consenting to the 

### test. 166 Mont. at193, 531P.2d 

### at1314. Thus, if Mangels 

### isgiven effecthere, the rule 

### set out inthat case disposes of thisquestion.

### Campbell argues thatMangels should be overruled insofar

as it 

### holds an arrestis

### not a prerequisite toadministering

a blood 

### test when a party is

### unconscious or incapable of consenting tothe test. Campbell contends thisaspectof Mangels should be overturned because of the plain language of the implied consent statuteand the intentof the legislature inenacting the statute asevidenced by the title

### of the original act. These are the same arguments originally made inMangels. See 166 Mont. at193, 531 P.2d at 

### 1314. The arguments did notpersuade us then and 

### are no more persuasive now. It 

### is

### apparent from a reading of the implied consent statute that an arrestis

### not a 

### prerequisite to administering a blood alcohol test toa party who is

### unconscious or otherwise incapable of consenting to the test. We, therefore, rejectCampbell's argument and affirm the decisionmade inMangels. The third questionpresented by this issueis

### whether theFourth Amendment protection againstunlawful searches prohibits the taking of a blood test 

### from an unconscious or otherwise incapable person without an arrest. We

### previously addressed this issue inStatev. Deshner (1971), 158Mont. 188, 489 P.2d 1290. InDeshner police had

a blood sample taken from the defendant shortlyafter he 

### was involved inan automobile accident. The defendant was unconscious when the sample was taken. The police did not arrest 

### the defendantbefore requesting the blood sample. The defendant asserted the results of the blood test should not be admitted athis trial 

### formanslaughter. He contended that taking the blood sample without placing him under arrest constituted an unconstitutional search. The Court found no 

### meritindefendant's argument. 158Mont, at192,

### 489 P.2d at 1292. The Court stated the taking of the blood sample under these circumstanceswas constitutionally proper because the officermight reasonably have believed he was confronted with an emergency situation inwhich the evidence would be destroyed if time was taken to procure a warrant, and the procedures used in taking the blood were reasonable. 158Mont. 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 unconsciousperson. Annot., 72A.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 notviolate the defendant's Fourth Amendment rights. A 

### quote fromMr. Justice Blackmun's concurring opinion summarizes the holding of the Court:"The Court today permits a search for evidence without an arrestbut under circumstances where probable cause for an arrest existed, where the officers had reasonable cause tobelieve that the evidence was on the respondent's person, and where that evidence was highly destructible. 

# .." 412 U.S. at300, 93 S.Ct. at 2006, 36 L.Ed.2d at908. In discussing Cupp and the splitof authority on the issue of whether an arrest

### is an absolute prerequisite to the taking of a blood sample from an unconscious party ina drunk driving situation, LaFave, supra, states: 

# ".

.. Indeed, the case for permitting the taking of the blood sample upon probable cause that the defendant 

### isintoxicated without first arrestinghim 

### is, if anything, stronger than the case for the searches conducted inCupp and Franklin. In the blood sample case, as opposed to those cases, there 

### isno room whatsoever for the argument that the lack of a formal 

### arrestmay decrease somewhat the chances that the evidence 

### willbe destroyed, for the 'evanescent' character of the evidence 

### is inherent in

### its nature and does not depend upon any motive of the defendant todestroy 

### it. That 

### is, the need for the blood sample 

### arises out of the fact, as stated inSchrnerber v. California, 'that the percentage of alcohol inthe blood begins todiminish shortly after drinking stops,' an emergency which 

### is inno 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 inorder to

### meet this emergency 

### isreasonable only if the police firstdeclare the hospitalized defendant under arrest. Inparticular, 

### it 'would be ridiculous torequire a police officer toperform some formal ritual of arrestover the unconscious body of a critically injured person who was a party to a fatalautomobile accident.

## ' The claim that the contrary position 'provides some measure of assurance thatprobable cause 

### isbased upon considerations independent of the blood-alcohol 

### test results' 

### isuntenable, as the need for a court todetermine thatprobable cause existedprior to the test ispresent under either rule." 85.4(b) at343-344. The above summary of Cupp and LaFave's comments on the question indicate there 

### isno per 

### se arrest requirement for

a warrantless search. That analysis 

### is consistentwith Deshner and the lineof authority from other jurisdictions

### thathold an unconscious driver need not be arrested before

a blood sample can be taken. Cupp and LaFave's comments thus provide a solidbasis for continuing to adhere to the Deshner holding. We, 

### therefore, reject Campbell's argument that the lineof authority contra toDeshner should be adopted and reaffirm the Deshner decision. Having analyzed the three separate questions Campbell raises under the firstissue, 

### it is

### now necessary to summarize the analysis toresolve the ultimate question of whether the District Court erred in admitting the results of the blood 

### test intoevidence. Initially, the evidence shows the District

### Court properly found thatCampbell 

### was ina condition thatrendered him incapable of refusing to consent tothe taking of the blood sample when the sample was taken. This means the absolute arrestrequirement for conscious individuals who arecapable of refusing consent established by statute and explained inMangels does not come intoplay. Thus, the blood 

### test results arenot automatically inadmissiblehere because no arrestoccurred. Further, Campbell only repeats arguments we previously rejected inMangels to supporthis contention thatMontana's implied consent statute requires an arrestbefore 

### a blood sample can be taken even if an individual 

### isunconscious 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 inMangels and are
no more so now. Therefore, we reaffirm our decision that Montana's implied consent statute does not contain an absolute arrestrequirement before a 

### blood sample can be taken from an unconscious or otherwise incapable person and hold the blood testresults here are admissible under ~ontana's implied consent statute.ina ally, campbell's Fourth Amendment claim lacks merit. Werejected Campbell's argument inDeshner. 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 DistrictCourt did not 

### err inadmitting the results intoevidence. The second issue raised by Campbell involves the DistrictCourt'

### s jurisdiction to hear the drivingwhile intoxicated charges brought against him. Jurisdiction of the DistrictCourt over criminal matters depends on the maximum sentence that can be imposed for committing the crime. When themaximum sentence increases to give the DistrictCourt jurisdiction because of repeated offenses, proof of prior offenses does not become an element thatmust be proved at trial and can be proved atany 

### timeuntil sentencing. Therefore, failure to introduce evidence of prior convictions at

### trial does not deprive the DistrictCourt of jurisdiction. Statev. Nelson (1978), 

### -Mont. - 

## , 583 P.2d 435, 437-438, 35 St.Rep. 1337, 1339-1341. Campbell contends here that the DistrictCourt did not have jurisdiction over the D.W.I. charge brought against him because the State introduced no evidence attrialproving prior D.W.I. convictions. This contention lacks

### meritunder 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 inpertinentpart: "If 

### it appears that a defendant or the state 

### isprejudiced by a joinder of related prosecutions

# . . . the courtmay order separate trials

# . . . orprovide any other relief as justice may require." Campbell asserts thatjoining 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 setout three basic kinds of prejudice thatmay 

### 0-k% occur on the joinder of similar offenses. Statev. 4Azbe~~ (1976)l 170Mont. 480, 489, 555 P.2d 509. The firstkind of prejudice results when the jury considers a person facing multiple charges tobe 

### 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 guilton the firstcount inan information 

### isused to convict the defendant of a second count even though the proof would be inadmissible ata separate 

### trial on the second count. The third kind of prejudice occurs when the defendantwishes to testifyon his own behalf on one charge but 

# oC/&fli-- not on another. O&esmI 170Mont. at489, 555 P.2d at515. 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 trialjudge. Absent a showing of abuse of that discretion, an appellate court shouldnot substitute 

### itsjudgment for that of the 

### trial court. United Statesv. Cuesta (5thCir. 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 infavor of joint trials. United Statesv. Dohm (5thCir. 1979), 597 F.2d 535, 540. The factors thatprovide the basis for the predisposition for joint trialsinclude expedition of the administration of justice, reduction inthe congestion of 

### trial dockets, conservation of judicial 

### time, reduction of burden on citizens who serve on juries in

### terms of 

### timeand money sacrificed, and avoidance of the necessity of recalling witnesses who would otherwise have totestify only once. United Statesv. Brady (9thCir. 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, 170Mont. at489, 555 P.2d at515. In showing prejudice, it 

### isnot sufficient that the defendant prove some prejudice or that a better chance of acquittal exists if separate trials areheld. Rather, the defendant must show theprejudicewas so great

### as toprevent a fair trial. Dohm, 597 F.2d at539; United Statesv. Martinez 

### (1stCir. 1973), 479 F.2d 824, 828. Given thishigh 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 Statesv. Barrett (7thCir. 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, 

### wemust now consider the 

## od*.r2--- differentkinds of prejudice listed in to determine

### themerits 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 

# oA seldom been found sufficient to warrant severance. Qsbwa, 

### 170Mont. at 489, 555 P.2d at 514-515. In fact, ithas been specifically held that the prejudice incurred by a 

### defendant from being held out to the jury as an "habitualoffender" is not alone sufficient to entitle the defendant to separate trials. Pummillv. United States (8thCir. 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. Thatwould 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 Campbellwas 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 thisnature 

### willbe found when the evidence presented 

### ata joint trial

### is simple and distinct. Commonwealth v. Peterson (1973), 453 Pa. 187, 307 A.2d W,271; 

### Drewv. United 

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

### is based on the rationale thatwhen the charges are few and the evidence straightforward, there 

### isno reason toassume the jury 

### was confused and could not keep the relevant evidence separate. United States v. 

### Jamar (4thCir. 1977), 561 F.2d 1103, 1107-1108; Peterson, 307 A.2d at271, citing United Statesv. Lotsch (2nd Cir. 1939), 102 F.2d 35, 36, cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500. See alsoUnited Statesv. Luna 

### (1stCir. 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 

### werebrought against Campbell atthe 

### trial. The main factinissueconcerning allthree

was whether Campbell was driving atthe 

### time the accident occurred. Proof that Campbell 

### was driving

### was an element of allthe crimes charged by the information. Thus, evidence pertaining tothat factwould have been admitted even if the trials on the differentcounts had been separated. The other evidence introduced 

### atthe 

### trial, such asproof of Campbell's blood alcohol content and the fact that Campbell had been adjudged an habitual offender atthe 

### timethe 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 inreaching

a verdict on each count of the information. Therefore, 

### we find any prejudice of this nature insufficient to hold the DistrictCourt abused itsdiscretion indenying Campbell's motion for severance.The third type of prejudice occurs when the defendant wants to testifyon his own behalf on one charge but not on the others. Campbell stated inthis case thathe 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 asto

### time, place and evidence. 170Mont. 

### at489, 555 P.2d at515. It has alsobeen held that a defendant cannot claim this type of prejudice when the statedoes 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 todemonstrate prejudice under either of these criteria. The charges 

### all stemmed from one incident that occurred atthe same 

### timeand place, and the evidence introduced toprove 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 

### itsquestions 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 DistrictCourt abused itsdiscretion indenying 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 torequire the DistrictCourt to order separate trials on the charges contained inthe information. Therefore, the District Court did not err in failing tograntCampbell'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 tohear 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, 158Mont. at 191, 489 P.2d at1290. Here the main evidentiary question was whether Campbell

was driving when the accident occurred. The evidence on thisquestion introduced at

### trial was conflicting. Campbell introduced the following evidence to support his assertion thathe 

### was not drivingwhen the accident occurred: (1)His testimony thathe 

### was not driving; (2)Manuel Moreno's testimony attrial thatVincent 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 Statepresented 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 after the accident; (3) testimony torefute the theory advanced by Dr. Jacobson

### tending to show Campbellwas 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 Campbellwas 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 necessarywhere 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 "allcases of misdemeanor not otherwiseprovided 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.