No. 86-55 

IN THE 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 First Judicial District, 

In and for the 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, 1986 
Mr. Justice John Conway Harrison delivered the Opinion 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 in violation of S 61-8-401, MCA. The only contention 

raised by the defendant on appeal is whether the trial court 

properly instructed the jury with regard to the above charged 

offense. We reverse and remand this case for a new trial 

consistent with this opinion. 

On April 14, 1985, the defendant-appellant, Keith Owen 

Davis (hereinafter "Davis") , was arrested for driving under 

the influence of alcohol or drugs in violation of S 61-8-401, 

MCA. The defendant was convicted of the charged offense in 

Helena City Court and he appealed his conviction to the 

District Court. In a trial de novo before the District Court 

of the First Judicial District a jury of six persons 

convicted the defendant of the same charged offense. 

Section 61-8-401, MCA, reads in pertinent part as 

follows: 

Persons under the influence of alcohol or 

drugs. (1) It is unlawful and 

punishable as provided in 61-8-714 for 

any person who is under the influence of: 

(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 safely driving a 

vehicle to drive or be in actual physical 

control of a vehicle within this state; 

or 

(d) alcohol and any drug to a degree 

that renders - him inca~able-of- safelv 

driving - a vehicle to & drive _.A or be in 
actual physical control of a vehicle 

within this state. 

(2) The fact that any person charged 

with a violation of subsection (1) is or 

has been entitled to use alcohol or such 

a drug under the laws of this state does 

not constitute a defense against any 

charge of violating subsection (1). 

(3) Upon the trial of any civil or 

criminal action or proceeding arising out 

of acts alleged to have been committed by 

any person driving or in actual physical 

control of a vehicle while under the 

influence of alcohol, the concentration 

of alcohol in the person's blood at the 

time alleged, as shown by chemical 

analysis of the person's blood, urine, 

breath, or other bodily substance, shall 

give rise to the following presumptions: 

(a) If there was at that time an alcohol 

concentration of 0.05 or less, it shall 

be presumed that the person was not under 

the influence of alcohol. 

(b) If there was at that time an alcohol 

concentration in excess of 0.05 but less 

than 0.10, that fact shall not give rise 

to any presumption that the person was or 

was not under the influence of alcohol 

but such fact may be considered with 

other competent evidence in determining 

the guilt or innocence of the person. 

(c) If there was at that time an alcohol 

concentration of 0.10 or more, it shall 

be presumed that the person was under the 

influence of alcohol. Such presumption 

is rebuttable. 

(4) The provisions of subsection (3) do 

not limit the introduction of any other 

competent evidence bearing upon the issue 

of whether the person was under the 

influence of alcohol. (Emphasis added. ) 

The jury was instructed, over defense counsel Is 

objection, that the law as it relates to S 61-8-401 was as 

follows: 

You are instructed that the expression 

"under the influence of alcohol" covers 

not only all the well-known and easily 

recognized conditions and degrees of 

intoxication but any abnormal mental or 
physical condition which is the result of 

indulging in alcohol to any degree, and 

which tends to deprive a person of that 

clearness of intellect and control of 

himself which he would otherwise possess. 

- If the - ability of the driver of - an 

automobile - has - beenlessened in the 

slightest degree by the- aEohC 

-- then the driver is deemed- beume 

influence of alcohol. ~heme= fact that 

a driver has taken a drink does not place 

him under the ban of the statute unless 

such drink has some influence upon him, 

lessening in some degree his ability to 

handle said automobile. (Emphasis 

added. ) 

Davis now presents the following issue for review by 

this Court: Whether the District Court erred by giving a 

jury instruction that was at variance with the statute 

defining the offense for which he was charged and convicted. 

In his brief, Davis argues because he was charged with 

driving under the influence of both alcohol - 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 convict him if his ability 

to drive was "lessened -- in the slightest degree." 

Davis concedes the jury instruction given by the trial 

court was approved by this Court nearly 27 years ago in State 

v. Cline (1959), 135 Mont. 372, 339 P.2d 657. However, Davis 

argues, the instruction approved in Cline related only to a 

situation where the defendant was charged and convicted of 

driving under the influence of intoxicating liquor. In 

approving the instruction in Cline, Davis points out, this 

Court interpreted Montana's 1955 version of its DUI law and 

noted "the Legislature . . . placed no limitation on the 
extent of the influence of intoxicating liquor required to 

come under the statute . . . [and] the instruction, taken as 

a whole, correctly states the law in Montana as applicable to 

a case of this kind." Cline. 339 P.2d at 662. Montana's 

1955 DUI law (Art. IV, Section 39, Chapter 263 of the Session 

Laws for 1955) provided as follows: 

Persons under the influence of 

intoxicating liquor or of drugs. 

(a) It is unlawful . . . 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 or who is 

under the influence of any other drug to 

a degree which renders him incapable of - 

safely driving a vehicle to drive a 

vehicle within thxs state. The fact that 

any person charged with a violation of 

this paragraph is or has been entitled to 

use such drug under the laws of this 

State shall not constitute a defense 

against any charge of violating this 

paragraph. (Emphasis added.) 

Unlike the defendant in Cline, Davis argues, he was 

charged with driving under the influence of both alcohol and 

drugs. Further, unlike the offense charged in Cline, Davis 

asserts, the statute he was charged and convicted of 

violating does contain a clear legislative directive as to 

the extent of influence of the intoxicants. The offense 

charged in this case does not say the law is broken if one 

drives while impaired to the "slightest degree;" rather, the 

law states an offense is committed if one's driving ability 

is impaired "to a degree that renders him incapable of safely 

driving a [motor] vehicle." Davis argues the trial court 

committed reversible error by instructing the jury to convict 
him on the basis of a factual criteria that is at variance 

with the criteria used by the legislature in defining the 

elements of the crime. Had the jury in this case been fully 

and fairly instructed on the law as passed by the 

legislature, Davis argues, he may not have been convicted. 

Although we do not totally agree with the argument 

presented by Davis, we do feel he has brought to light one 

very important point -- the "Cline" instruction no longer 

reflects the law in Montana as passed by our legislature. 

First, it must be noted that Davis was not charged with 

driving under the influence of both alcohol and drugs 

pursuant to (1) (d) of S 61-8-401 as he suggests. Rather, 

Davis was charged with a violation of S 61-8-401 generally. 

In other words, Davis was charged with driving while under 

the influence of alcohol and/or drugs. 

Next, we feel it is important to review the argument 

presented by the City of Helena. The City of Helena, of 

course, strongly argues that the jury instruction given and 

approved in Cline, supra, was also appropriately given in the 

instant case. As noted above, this Court in Cline 

interpreted Montana's 1955 DUI law and determined that the 

offered instruction correctly stated the law in Montana as 

applicable to a case of that kind. In both Cline and the 

instant case the defendants were charged with driving under 

the influence of alcohol (intoxicating liquor). It is also 

important to note, the City of Helena argues, that both 

Montana's 1955 DUI law and today's DUI law are essentially 

the same (see above). A comparison of the former law with 

today's law reveals that despite its many amendments the 

legislature has left intact the original criteria regarding 

the degree of impairment the state must prove in order to 
convict an individual of driving under the influence of 

alcohol or drugs. Therefore, since the instruction given and 

approved in Cline was based upon the same laws and situation 

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

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

case. We disagree. 

Simply put, we hold the "Cline" instruction no longer 

states the law in Montana. We find since this Court approved 

the "Cline" instruction in 1959, the legislature has 

significantly revised this State's 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. The most 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 

limitation on the extent of the influence 

of intoxicating liquor required to come 

under the statute, and held that they 

could not add to the language of the 

statute. We believe that the 

instruction, taken as a whole, correctly 
states the law in Montana as applicable 

to a case of this kind. 

Cline, 339 P.2d at 662. Clearly, this is not the situation 

under Montana's current DUI law. 

In conclusion, we hold the "Cline" instruction is no 

longer a proper statement of the law in this State and the 

instruction must either be revised or abandoned to conform 

with the provisions of § 61-8-401. As noted above, we find 

the legislature today had specifically spelled out in 

§ 61-8-401 the extent of the influence of intoxicants 

necessary to be convicted of driving under the influence of 

alcohol or drugs. As applied to the instant case, Davis is 

entitled to a new trial with the jury being instructed as to 

proper criteria set out in B 61-8-401 which is applicable to 

a charge of driving under the influence of alcohol and/or 

drugs. 

The conviction of the defendant is reversed and this 

matter is remanded for a new trial consistent with this 

opinion. h n 

We Concur: / I I 

-/a - L YcrvccyR 

Chief Justice 

,-"--.