96-244

No. 96-244

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

vs.

LYLE D. ROBISON,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carrie L. Garber, Deputy Public Defender, Billings,

Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Pamela P.

Collins, Assistant Attorney General; Dennis Paxinos,

Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: January 2, 1997

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Decided: January 9, 1997

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

 Lyle D. Robison (Robison) appeals from a February 26, 1996,

Yellowstone County jury verdict finding him guilty of driving under

the influence of alcohol (DUI), a felony, in violation of 61-8-

401, MCA. We reverse and remand for a new trial.

 The dispositive issue we address on appeal is whether the

trial court properly instructed the jury as to the element of

"actual physical control". We hold that it did not.

 Background

 On November 24, 1995, Robison was charged in the Thirteenth

Judicial District Court with felony DUI arising out of an incident

occurring in the early morning hours of November 21, 1995. Because

we are remanding for a new trial, we will not address the facts in

any detail, except to note that they were disputed and that,

depending upon which witnesses the jury believed, it could have

legitimately found Robison either guilty or not guilty.

 Basically, it was the State's evidence that Robison was found

in a Billings parking lot sitting in the driver's seat of an

automobile with his body from the waist up slumped over into the

passenger's seat and with his feet near the pedals. The automobile

appeared to be locked, the motor was running and the lights were

on. Robison was asleep or passed out and had to be aroused by the

investigating officer. There was little doubt, as Robison readily

concedes, that he was heavily intoxicated--"pig drunk," in his

words.

 Robison's defense, however, was that he had become intoxicated

in a local bar; that he had become acquainted with Jim Rutledge

(Rutledge) who offered to and was in the process of driving Robison

to his hotel; that Robison passed out in the car; and that he was

awakened by the investigating officer. Robison maintained he was

occupying the passenger's seat with his legs sprawled on the

driver's side. Robison did not recall if the doors were locked but

testified that the driver's door had a mechanical problem that,

from the outside, made it difficult to open and caused it to appear

that the door was locked. 

 Rutledge testified that he, too, was drunk, but he confirmed

Robison's story, maintaining that he (Rutledge) was driving the

automobile with Robison as the passenger. Rutledge stated that he

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had pulled into the parking lot to relieve himself. He saw the

police car approaching, panicked, and ran off, leaving Robison

asleep in the passenger's seat with the motor running, the lights

on, the parking brake engaged and the driver's door unlocked.

 Discussion

 To convict Robison of DUI, the State must prove that he was

(1) driving or in actual physical control of a vehicle; (2) upon

the ways of this State open to the public; and(3) while under the

influence of alcohol. Section 61-8-401, MCA. In this case, the

only element in dispute is (1). Robison admits he was intoxicated

in his automobile, but he denies that he was in actual physical

control of his vehicle.

 In State v. Ruona (1958), 133 Mont. 243, 321 P.2d 615, we

explained that a person has actual physical control of a vehicle

when:

 [he] has existing or present bodily restraint, directing

 influence, domination or regulation, of an automobile. .

 . .

Ruona, 321 P.2d at 618.

 At Robison's trial the State offered a proposed instruction

regarding the element of actual physical control as follows:

 "Actual physical control" means that a person has

 existing or present bodily restraint, directing

 influence, dominion or regulation of an automobile. 

 Movement of the vehicle is unnecessary.

 The trial court, however, refused to give this proposed

instruction and, instead, with no objection from the State, but

over objection of Robison, instructed the jury as to the element of

actual physical control as follows:

 "Actual physical control" means that a person has

 existing or present bodily restraint, directing

 influence, dominion or regulation of a motor vehicle. 

 Movement of the vehicle is unnecessary. One may be in

 actual physical control of a motor vehicle if he is

 physically inside an operational motor vehicle with the

 potential to operate or drive that motor vehicle while

 under the influence of alcohol on the ways of this State

 open to the public.

 

 The court stated that, in its opinion, it was necessary to

expand the definition of "actual physical control" in this case

because Robison was found passed out in the front seat and that the 

definition was expanded "to include the potential of [Robison]

awakening and driving while still intoxicated."

 Robison contends that this jury instruction--specifically, the

last sentence of the instruction--broadened our long-standing

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definition of "actual physical control" thereby rendering the

judicially established meaning of "actual physical control"

unconstitutionally vague and overbroad, both on its face and as

applied in this case, and impermissibly shifted the burden of proof

from the State to the defendant.

 The State disagrees and contends that Robison's interpretation

of "actual physical control" is too restrictive. Relying on

various cases in which this Court has upheld DUI convictions where

the defendant was asleep or passed out behind the wheel, slumped

onto the middle of the seat, alone in the vehicle and lying across

the front seat or otherwise in a position to regulate the movements

of the vehicle, the State maintains that the trial court's

instruction does not expand our definition of "actual physical

control", but is consistent with our prior decisions. We disagree.

 Factually, this case is not unlike many of the scenarios

described in the cases relied upon by the State. Indeed, had the

court properly instructed the jury, Robison could properly have

been found guilty of DUI--he was alone, asleep or passed out, in

the front seat of an automobile, with the motor running and the

lights on in a parking lot; he was clearly intoxicated. With a

proper instruction on "actual physical control", the jury could

have convicted Robison of DUI on this record, believing that he had

been driving or that he had dominion, directing influence or

regulation of the vehicle. Rather, it is the additional language

which the court added to the instruction on "actual physical

control"--language not at issue in our prior decisions--that

concerns us here.

 We review jury instructions in a criminal case to determine

whether the instructions, as a whole, fully and fairly instruct the

fact finder on the law applicable to the case. State v. Leyba

(1996), 276 Mont. 45, 51, 915 P.2d 794, 797. Moreover, district

courts have broad discretion in formulating jury instructions. 

State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167. 

 In this regard, we note in passing that the language from

Ruona referred to above, while not objected to by either the

defense or the State, is perhaps not the most clear and

understandable definition of "actual physical control." Given the

increasing numbers of DUI trials and felony DUI charges occasioned

by 1995 legislative changes in the DUI laws, and in the absence of

any statutory definition of "actual physical control," it may be

appropriate that the Criminal Jury Instruction Commission consider 

adopting a clearer and more understandable definition of this

phrase as part of the model Montana Criminal Jury Instructions. 

That notwithstanding, we conclude that the trial court misstated

the law and abused its discretion in instructing the jury on the

element of "actual physical control" in the manner stated above.

 As noted previously, the definition of "actual physical

control" has been fleshed out by judicial interpretation and we

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have upheld DUI convictions in a variety of factual scenarios which

did not involve the accused being arrested while actually driving

a vehicle. See, for example, Ruona, 321 P.2d 615; State v. Taylor

(1983), 203 Mont. 284, 661 P.2d 33; State v. Ryan (1987), 229 Mont.

7, 744 P.2d 1242; Turner v. State (1990), 244 Mont. 151, 795 P.2d

982; Gebhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261; State

v. Peterson (1989), 236 Mont. 247, 769 P.2d 1221.

 Had the court instructed on the element of "actual physical

control" in the language offered by the State, the jury may well

have found Robison guilty on the factual record. To do so,

however, it would have had to disbelieve Robison's and Rutledge's

testimony that Rutledge, not Robison, was at all times the driver

of the automobile. That, of course, would have been the jury's

prerogative.

 It does not take much in the way of legal analysis, however,

to see that, under the jury instruction given by the court, even if

the jury believed that Rutledge and Robison had testified

truthfully, the jury still could have found Robison in actual

physical control of the vehicle and, therefore, guilty of DUI under

the facts here. The mischief in the court's instruction is the

following language which it added to the instruction proposed by

the State:

 One may be in actual physical control of a motor vehicle

 if he is physically inside an operational motor vehicle

 with the potential to operate or drive that motor vehicle

 while under the influence of alcohol on the ways of this

 State open to the public.

 Under this statement of the law, even if Robison was, in

truth, simply an intoxicated passenger in the vehicle and had never

driven it while intoxicated, he was, nevertheless, "physically

inside an operational motor vehicle with the potential to operate

or drive that motor vehicle while under the influence of alcohol on

the ways of this State open to the public," and, therefore, in

"actual physical control" under the court's instruction.

 Obviously, the offense of DUI is directed at the driver of the

vehicle, not at other persons who, while intoxicated, might

legitimately happen to be passengers in the vehicle. For

example, assume that Mary, Joe, Betty and Bill are out on the town.

Mary is the designated driver and has not consumed any intoxicant. 

Joe, Betty and Bill, however, are all intoxicated. On the way home

Mary is driving, Joe is in the front passenger seat and Betty and

Bill are in the rear seat. Mary stops at a gas station to use the

restroom, leaving Joe, Betty and Bill sitting in the car with the

windows down, the motor running and the lights on, singing "99

bottles of beer on the wall", with enough gusto that leaves no

doubt as to their lack of sobriety. At this point, Officer Smith

arrives on the scene and properly concludes that all three are

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intoxicated. Under the court's instruction, Joe, Betty and Bill

are each "physically inside an operational motor vehicle with the

potential to operate or drive that motor vehicle while under the

influence of alcohol on the ways of this State open to the public,"

and are, therefore, in "actual physical control" of the vehicle for

purposes of DUI. Each could be charged with and convicted of DUI

without any evidence, direct or circumstantial, that any one of

them had ever actually operated the vehicle while intoxicated. In

short, DUI would encompass not only an intoxicated driver but all

intoxicated passengers as well. Simply put, an intoxicated person

could never risk setting foot in a vehicle even for the legitimate

purpose of simply being a passenger.

 Under the circumstances, we agree that the court's instruction

impermissibly broadened the judicial definition of "actual physical

control" to include, as a practical matter, every intoxicated

occupant of a vehicle whether or not he or she was or ever had been

operating the vehicle. We hold that, in so doing, the court

misstated the law defining "actual physical control" and that it

abused its discretion in instructing the jury in the manner that it

did.

 Reversed and remanded for new trial.

 /S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

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