No. 86-55 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

THE CITY OF HELENA, Plaintiff and Respondent,

-vsKEITH OWEN DAVIS, Defendant and Appellant.

APPEAL FROM: District Court of the FirstJudicialDistrict, In and forthe County of Lewis & Clark, The Honorable Henry Loble, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Leo J. Gallagher, Helena, Montana

For Respondent: Hull & Sherlock; David Hull, Helena, Montana

-- - Submitted on Briefs: June 24, 1986 Decided: August 8, 1986Mr. JusticeJohn Conway Harrison delivered theOpinion of the Court.

This is an appeal by the defendant from his conviction for the offense of driving under the influence of alcohol or drugs inviolation of S 61-8-401, MCA. The only contention raised by the defendant on appeal iswhether the trial court properly instructedthejury with regard tothe above charged offense. We reverse and remand this case for a new trial consistentwith thisopinion. On April 14, 1985, the defendant-appellant, Keith Owen Davis (hereinafter "Davis")

## , was arrested for driving under the influenceof alcohol ordrugs inviolationof S 61-8-401, MCA. The defendant was convicted of the charged offense in Helena City Court and he appealed his conviction to the DistrictCourt. Ina trialdenovo before theDistrictCourt of the First Judicial District a jury of six persons convicted thedefendant of the same charged offense. Section 61-8-401, MCA, reads in pertinent part as follows: Persons under the influenceof alcohol or drugs. (1) It is unlawful and punishable as provided in 61-8-714 for any personwho isunder the influenceof: (a) alcohol to drive 

### --- or be in actual physical control 

### - of 

### - a vehicle upon the ways of this state open to the public;

(b) a narcotic drug to drive or be in actual physical control of a vehicle within this state; (c) any other drug to a degree which renders him incapable of safelydrivinga vehicletodrive orbe inactualphysical control of a vehicle within this state; or (d) alcohol and any drug to a degree that renders him inca~able-of- safelv 

## - & _.A driving 

### - a vehicle to drive or be inactual physical control of a vehicle within this state.

(2) The fact that any person charged with a violation of subsection (1)is or has been entitled to use alcohol or such a drug under the laws of this statedoes not constitute a defense against any charge ofviolating subsection (1).

(3) Upon the trial of any civil or criminalaction orproceeding arising out of acts alleged tohave been committedby any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, shall give rise to the following presumptions:

(a) If therewas at that time an alcohol concentration of 0.05 or less, it shall be presumed that thepersonwas notunder the influenceof alcohol.

(b) Iftherewas at that time an alcohol concentration in excess of 0.05 but less than 0.10, that fact shall not give rise to anypresumption that thepersonwas or was not under the influence of alcohol but such fact may be considered with other competent evidence in determining the guilt or innocence of the person.

(c) If therewas at that time an alcohol concentration of 0.10 or more, it shall be presumed that thepersonwas under the influence of alcohol. Such presumption isrebuttable. (4) The provisions of subsection (3) do not limit the introduction of any other competent evidencebearing upon the issue of whether the person was under the influence of alcohol. (Emphasisadded.)

The jury was instructed, over defense counselIs objection, that the law as it relates to S 61-8-401 was as follows: You are instructed that the expression "under the influence of alcohol" covers not only all the well-known and easily recognized conditions and degrees of intoxication but any abnormal mental orphysical conditionwhich is the resultof indulging in alcohol to any degree, and which tends to deprive a person of that clearness of intellect and control of himselfwhich hewould otherwisepossess. If the ability of the driver of an 

### - - 

## - automobile 

### - has 

### - beenlessened in the slightest degree 

### by the- aEohC then the driver isdeemed- beume 

### -- influence of alcohol. ~heme=fact that a driverhastaken adrink does notplace him under the ban of the statute unless such drink has some influence upon him, lessening in some degree his ability to handle said automobile. (Emphasis added.) Davis now presents the following issue for review by this Court: Whether the District Court erred by giving a jury instruction that was at variance with the statute defining the offense forwhich he was charged and convicted. In his brief, Davis argues because he was charged with driving under the influence of both alcohol 

### - and drugs pursuant to (1)(d) of S; 61-8-401, the law clearly states he is not guilty unless his driving ability was impaired "to 

### -- a degree that [rendered] him incapable 

### - of safely driving 

### - a [motor]vehicle." But rather than instructing the jury as to the criteria set forth in the statute, Davis argues, the trial court instructed the jury to convicthim ifhis ability todrivewas "lessened

### -- in the slightestdegree." Davis concedes the jury instructiongiven by the trial courtwas approvedby thisCourtnearly 27years ago in State

v. Cline (1959),135Mont. 372, 339 P.2d 657. However,Davis argues, the instruction approved in Cline related only to a situation where the defendant was charged and convicted of driving under the influence of intoxicating liquor. In approving the instruction in Cline, Davis points out, this Court interpreted Montana's 1955 version of its DUI law and noted "the Legislature

# . . .placed no limitation on theextent of the influence of intoxicating liquor required to come under the statute

# ... [and]the instruction, taken as

awhole,correctly statesthe law in Montana as applicableto

a case of this kind." Cline. 339 P.2d at 662. Montana's 1955DUI law (Art. IV,Section 39,Chapter 263 of the Session Laws for 1955) provided as follows: Persons under the influence of intoxicating liquoror ofdrugs. (a) It is unlawful

# .. . for any person who is under the influence of intoxicating liquor to drive 

### --- or be in actual physical control - of 

### any vehicle within this state.

(b) It is unlawful

# ..

# . for any person who is an habitual user of or under the influence of any narcotic drug orwho is under the influence of any other drug to a degree which renders him incapable 

### of - safely driving a vehicle to drive a vehicle within thxs state. The fact that any person charged with a violation of thisparagraph is or has been entitled to use such drug under the laws of this State shall not constitute a defense against any charge of violating this paragraph. (Emphasisadded.)

Unlike the defendant in Cline, Davis argues, he was charged with driving under the influenceofboth alcohol and drugs. Further,unlike the offense charged in Cline, Davis asserts, the statute he was charged and convicted of violating does contain a clear legislative directive as to the extent of influence of the intoxicants. The offense charged in this case does not say the law is broken if one drives while impaired to the "slightestdegree;" rather,the law states an offense is committed if one's driving ability is impaired "toa degree that rendershim incapable of safely driving a [motor] vehicle." Davis argues the trial court committed reversible errorby instructing the jury to convicthim on the basis of a factual criteria that is at variance with the criteria used by the legislature in defining the elements of the crime. Had the jury in this case been fully and fairly instructed on the law as passed by the legislature, Davis argues, he may not have been convicted. Although we do not totally agree with the argument presented by Davis, we do feel he has brought to light one very important point

## -- the "Cline" instruction no longer reflects the law in Montana as passed by our legislature. First, itmust be noted thatDaviswas not chargedwith driving under the influence of both alcohol and drugs pursuant to (1)(d) of S 61-8-401 as he suggests. Rather, Davis was charged with a violation of S 61-8-401 generally. In other words, Davis was charged with driving while under the influenceof alcohol and/ordrugs. Next, we feel it is important to review the argument presented by the City of Helena. The City of Helena, of course, strongly argues that the jury instruction given and approved in Cline, supra, was also appropriately given in the instant case. As noted above, this Court in Cline interpreted Montana's 1955 DUI law and determined that the offered instruction correctly stated the law in Montana as applicable to a case of that kind. In both Cline and the instant case the defendants were charged with driving under the influence of alcohol (intoxicating liquor). It is also important to note, the City of Helena argues, that both Montana's 1955 DUI law and today's DUI law are essentially the same (see above). A comparison of the former law with today's law reveals that despite its many amendments the legislature has left intact the original criteria regarding the degree of impairment the state must prove in order toconvict an individual of driving under the influence of alcoholordrugs. Therefore,since the instruction given and approved in Clinewas based upon the same laws and situation

as found in the instant case, the City of Helena argues, it

was proper that the "Cline" instruction was given in this

case. We disagree. Simply put, we hold the "Cline" instruction no longer states the law inMontana. We find since this Court approved the "Cline" instruction in 1959, the legislature has significantly revised this State's DUI law. Although a comparison of Montana's original DUI law and today's DUI law reveals that the legislature has left intact much of the statute's original language, the legislature has also made

some critical additions to the statute since it was first enacted. Themost important addition to the DUI law has been subsection (3) of S 61-8-401 which sets forth the various presumptions that may be read to a jury when a person is charged with driving under the influence of alcohol (see above). Obviously, this section of the DUI law was not available to this Court when we approved the "Cline" instruction. In fact, in Cline, we held that because the legislature had placed no limitation on the extent of the influence of alcohol required to come under the DUI statute,

we could justifiably adopt the offered instruction. As this Court stated in Cline: This identical instruction was given in an Arizona case, Steffani v. State, 45 Ariz. 210, 42 P.2d 615, 618. The court there made the observation that the Legislature of the State placed no limitationon the extent of the influence of intoxicating liquor required to come under the statute, and held that they could not add to the language of the statute. We believe that the instruction, taken as a whole, correctlystates the law in Montana as applicable to a case of thiskind. Cline, 339 P.2d at 662. Clearly, this is not the situation underMontana's currentDUI law. In conclusion, we hold the "Cline" instruction is no longer a proper statement of the law in this State and the instruction must either be revised or abandoned to conform with the provisions of § 61-8-401. As noted above,we find the legislature today had specifically spelled out in § 61-8-401 the extent of the influence of intoxicants necessary to be convicted of driving under the influence of alcohol or drugs. As applied to the instant case, Davis is entitled to a new trial with the jury being instructed as to proper criteria set out in B 61-8-401which is applicable to a charge of driving under the influence of alcohol and/or drugs.The conviction of the defendant is reversed and this matter is remanded for a new trial consistent with this opinion. h

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We Concur: 

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