No. 90-366 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, "a3 ";I'D f% g e*t$d;, 

-vs- . . .- 

- !rB 12 19991 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Attorney at Law, Bozeman, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Deanne L. Sandholm, Assistant Attorney General, 

Helena, Montana 

Michael Salvagni, Gallatin County Attorney, 

Bozeman, Montana 

Gary Balaz, Deputy Gallatin County Attorney, 

Bozeman, Montana 

Submitted on Briefs: January 17, 1991 

Filed: 

Decided: February 12, 1991 a 

CUP fl 
Justice John Conway Harrison delivered the Opinion of the Court. 

Steven R. Palmer appeals from an ~pril 10, 1990, judgment of 

the ~istrict Court of the Eighteenth ~udicial ~istrict, Gallatin 

County, finding him guilty of recklessly eluding a peace officer 

and operating a motor vehicle under the influence of alcohol. We 

affirm. 

Appellant presents two issues: 

1. Was the evidence sufficient to find Palmer guilty of 

recklessly eluding a police officer? 

2. Was the evidence sufficient to find Palmer guilty of 

driving under the influence of alcohol? 

I 

This case involves a fourteen-mile high speed car chase by 

three police officers, reminiscent of a ''Dukes of Hazzard1I 

television episode. At approximately 2:30 a.m. on September 11, 

1988, Officer David Reynolds of the Gallatin County Sheriff's 

Department observed a car traveling west on U.S. ~ighway 191, also 

known as Huffine Lane, near the Main Mall in Bozeman, Montana. A 

radar reading showed the car to be going 68 miles per hour in a 45 

miles per hour speed zone. Reynolds, who was proceeding east, 

switched on his emergency lights as the car approached. The car 

went by him, and Reynolds, with his lights and siren on, turned 

around in order to pursue the speeding car. Reynolds could see 

that the car was a dark, full-sized, older, American-make car. 

The car accelerated, temporarily lost control as it veered off 
the right-hand side of the road, and continued westbound. 

Reynolds, traveling at speeds from 85 to 95 miles per hour, tried 

to overtake the car, yet the car continued to extend the distance 

between them. Rain mixed with snow was falling, and Reynolds found 

that if he attempted to increase his speed, his vehicle would 

hydroplane. Reynolds testified that the car ahead was reaching 

speeds in excess of 100 miles per hour. 

Reynolds kept visual contact with the taillights of the 

speeding car until it swung north on Jackrabbit Lane. As soon as 

Reynolds turned north, he could see the taillights again. No other 

cars were on the highway at that point. 

When he realized that the car was not going to stop, Reynolds 

contacted the county dispatcher. Reynolds again radioed the 

dispatcher when he turned right on Jackrabbit Lane. The county 

dispatch unit notified Belgrade police officer, John Woodland, that 

Reynolds was pursuing a northbound car on Jackrabbit Lane. 

Woodland headed south on Jackrabbit. As he met the pursued car, 

Woodland turned on his emergency lights. Reynolds lost sight of 

the taillights of the fleeing car because of the lights on 

Woodlandls car and the lights from Bairls truck stop. Woodland 

reversed direction and also lost sight of the escaping car. 

The county dispatcher had called the Montana Highway Patrol 

who contacted Patrolman Dan Smith in the Belgrade area. Smith was 

approximately one-half mile behind Woodland. When Smith saw the 

fleeing car go past Woodland, he turned around, switched on his 

siren and emergency lights, and headed north, watching the 
approaching car in his rear view mirror. The driver of the 

speeding car flashed his lights, but did not slow down, and burst 

by Smith as Smith pulled over on the shoulder of the road. 

The car sped north on Jackrabbit with Smith in pursuit. As 

he approached a truck, the driver of the escaping car started to 

pass, saw an oncoming car, skidded off the road to the left 

momentarily, swerved back across the road, and plummeted down a 

fifteen-foot embankment on the right side of the road. Smith 

stopped his patrol car, got out, and looked over the embankment. 

But instead of stopping, the driver revved the motor and headed 

northward in the ditch. The car came to a small irrigation ditch, 

jumped the irrigation ditch, turned eastward, and continued in the 

ditch parallel to Alaska Road South. 

The driver of the car attempted to escape the ditch onto 

Alaska Road South, tore across the road through the interstate 

fence, and ended up on the eastbound on-ramp to Interstate 90 

facing the wrong way. Smith, going west, followed on Alaska Road 

south, which runs parallel to the on-ramp to Interstate 90. 

When the car reached the intersection of the eastbound onramp and Jackrabbit, it crossed Jackrabbit Lane, slid down another 

ten to fifteen foot embankment, ripped through the interstate 

fence, hit the side of Amsterdam Road, and again careened through 

the interstate fence into a ditch. The car continued westbound in 

the ditch for about two-tenths of a mile and then climbed onto 

Amsterdam Road. 

The car accelerated to approximately 70 to 75 miles per hour, 
but at a point where Amsterdam Road makes a large sweeping turn to 

the left, the car again flew off the road, hit a road sign, and 

bounced into a field. The car bolted through the field toward the 

interstate, but came to a fence. Following the fence, the car 

swerved back toward Amsterdam Road. As the car neared Amsterdam 

Road, it struck a private approach road, soared airborne for 58 

feet, and came to a final stop on the far side of Amsterdam Road. 

Steam spewed from the radiator of the car, which looked as if it 

had been in a demolition derby. 

Smith had the car in visual contact from the instant he first 

saw the car go by Woodland on Jackrabbit Lane until it crashed, 

except for the few moments he stepped from his car to peer over the 

first embankment the car dived down and for a few seconds when the 

car slid down the second embankment. 

While Smith was tracking Palmer's car, Reynolds and Woodland 

pulled into Bair's truck stop and approached another vehicle which 

had a large amount of steam coming off the front end. When the 

steam cleared, Reynolds realized that it was not the same vehicle 

that he had been pursuing. Shortly thereafter, the officers 

received radio contact from Smith indicating that Palmer's car had 

wrecked. 

After the crash, Smith approached the car and saw Palmer lying 

with his head on the floor under the dashboard and with his feet 

up on the steering wheel. Palmer was unconscious. When Woodland 

and Reynolds arrived at the scene, Reynolds recognized the car as 

the one which had passed him on Huffine Lane. Reynolds, an 
emergency medical technician, applied a dressing to a large 

laceration on Palmer's neck. Palmer began to regain consciousness 

and appeared to be in shock, flailing around and fighting the 

assistance being given him. 

At the hospital, Reynolds noticed the odor of alcohol on 

Palmer's breath. After reading the implied consent law to Palmer, 

he placed him under arrest and requested a blood test. Reynolds 

informed Palmer that if he refused the blood test he would lose his 

driver's license. Reynolds ordered the nurses to draw blood for 

the test, but Palmer refused. No blood sample was taken. Reynolds 

cited Palmer for speeding, driving under the influence of alcohol, 

recklessly eluding a police officer, and failing to have insurance. 

On February 16, 1989, Palmer was convicted in justice court 

of speeding, driving under the influence of alcohol, and recklessly 

eluding a police officer. Palmer appealed to district court and 

after a bench trial was convicted of driving under the influence 

of alcohol and eluding a police officer. On May 10, 1990, the 

District Court sentenced Palmer to consecutive sentences of six 

months in jail and a total fine of $1,000. All but 45 days of the 

jail sentence and $500 of the fine were suspended. 

I1 

The first issue is whether the evidence was sufficient to find 

Palmer guilty of recklessly eluding a police officer. 

The standard of review in a criminal case where the issue is 

sufficiency of the evidence is whether the evidence, when viewed 

in a light most favorable to the prosecution, would allow any 
rational trier of fact to find the essential elements of the crime 

beyond a reasonable doubt. State v. Holman (1990), 241 Mont. 238, 

241, 786 P.2d 667, 669; State v. Tome (1987), 228 Mont. 398, 400, 

742 P.2d 479, 481. The weight of the evidence and the credibility 

of the witnesses are llexclusively the province of the trier of 

fact. If the evidence conflicts, it is within the province of the 

trier of fact to determine which shall prevail. State v. Oman 

(1985), 218 Mont. 260, 265, 707 P.2d 1117, 1120. 

Pursuant to Montana law, a person commits the offense of 

recklessly eluding an officer when he: 

operates any vehicle in willful or wanton disregard for 

the safety of persons or property while fleeing or 

attempting to flee from or elude a peace officer who is 

lawfully in pursuit and whose vehicle is at the time in 

compliance with the requirements of 61-9-402. 

Section 61-8-301 (1) (b) , MCA. The charge against Palmer was eluding 

a police officer from Huffine Lane to Jackrabbit Lane. palmer 

contends that a reasonable doubt exists as to whether he was the 

driver of the car which Officer Reynolds pursued from ~uffine Lane 

to Jackrabbit Lane before Reynolds lost sight of the car. 

Palmer posits two arguments. First, because Officer Reynolds 

lost sight of the car he was pursuing on Jackrabbit Lane and 

mistakenly stopped another vehicle at Bairls truck stop, a 

reasonable doubt arises as to whether Palmer was the driver of the 

car that eluded Reynolds on ~uffine and Jackrabbit. 

Palmer's theory is rebutted by the evidence. Although 

Reynolds testified that he lost sight of the fleeing car near 

Bairls truck stop, at that moment Patrolman Smith of the Montana 
Highway Patrol had sight of the car and kept the fleeing car in 

view until the end of the chase, with the exceptions of the few 

seconds when Palmer plunged out of sight over the fifteen-foot 

embankments. Smith, heading south on Jackrabbit Lane following 

Officer Woodland, saw the northbound car Reynolds was pursuing 

speed by Woodland's car without stopping. Smith then made a Uturn and could see the fleeing car approaching him in his rearview mirror. 

According to the testimony of Reynolds, he had Palmer's car 

in sight at all times except for a matter of seconds when Palmer 

turned north on Jackrabbit from Huffine Lane. No other vehicles 

were in the vicinity when Palmer turned north on Jackrabbit Lane. 

In addition, Reynolds testified that Palmer's car was the same 

color and type as had passed him on Huffine Lane before he turned 

around and began giving chase. Reynolds also attested that as soon 

as he had a clear view of the stopped vehicle at Bairls truck stop, 

he realized that the vehicle was not the one he had been chasing. 

Secondly, Palmer claims that, given the times reported in the 

dispatch log of the beginning of the chase and the occurrence of 

the accident and given the distances traveled, it was impossible 

for Palmer to have been the driver of the car spotted on Huffine 

Lane. Palmer asserts that a vehicle would have to travel at speeds 

approaching 160 miles per hour in order to cover the distance 

between the Main Mall in Bozeman and the place of the wreck on 

Amsterdam Road. 

Reynolds called the dispatcher at 2:37 a.m. to report that he 
was in pursuit of Palmer's car. The accident at Amsterdam Road was 

reported at 2:44 a.m. Smith estimated that the car would have had 

to travel an average speed of 94 miles per hour to cover the 

distance between the two points. 

The discrepancy between the speeds estimated by Smith and 

Palmer is due to the location of Reynolds1 vehicle when he reported 

to the dispatcher. Palmer placed him at the Main Mall, but 

Reynolds testified that he didn't call the dispatcher until he 

realized that the speeding car was not going to stop. Thus, the 

distance was shorter than envisioned by Palmer. 

The District Court addressed this issue in its findings: 

On January 4, 1990, Defendant asked for a 

continuance of this trial for the reason that 

he had retained a physicist to confirm by 

expert opinion that based on times, distance 

and speed that it could not have been 

Defendant who Officer Reynolds pursued down 

Huffine and Jackrabbit Lanes. Based on that 

representation, the cause was continued. The 

expert did not appear at this trial. Thus, 

the Court has only counsells argument and 

clever though it may be, it is not evidence. 

The District Court relied on the credible evidence of the officers1 

testimony in concluding that Palmer's car was the same car 

initially pursued by Reynolds on ~uffine Lane. viewing the 

evidence in the light most favorable to the prosecution, we hold 

that the District Court, as the trier of fact, relied on sufficient 

evidence to find Palmer guilty beyond a reasonable doubt of 

recklessly eluding a police officer. 

The second issue is whether the evidence was sufficient to 
find Palmer guilty of driving under the influence of alcohol. 

Palmer argues that the only proof of intoxication was that at 

the hospital Officer Reynolds smelled alcohol on Palmer's breath; 

therefore, the evidence was insufficient find Palmer guilty 

beyond a reasonable doubt of driving under the influence of 

alcohol. Palmer asserts that no other evidence, such as a field 

sobriety test, slurred speech, bloodshot eyes, or results of the 

horizontal gaze nystagmus test, was presented. 

The District Court based its verdict on the following finding: 

The admitted physical facts of the Defendant's 

impaired driving judgment is almost sufficient 

in and of itself to sustain the charge. The 

odor of alcohol detected on the operator's 

breath by an experienced officer, after having 

personally observed the irregular, erratic 

manner in which the vehicle was operated, is 

sufficient. 

The manner in which a vehicle is driven can be evidence of driving 

under the influence of alcohol. See State v. Peterson (1989), 236 

Mont. 247, 250, 769 P.2d 1221, 1223. Here, the way in which the 

car was driven would not be expected to be undertaken by a sober 

individual unless he were a stuntman in a car chase movie. Driving 

at speeds over 100 miles per hour under wet road conditions, 

swerving off the road, plunging over two embankments, driving down 

ditches and across fields, smashing through the interstate fence, 

and failing to stop even though signaled to stop by three police 

officers demonstrate a manner of driving that suggests the driver 

was intoxicated. 

Since Palmer was unconscious immediately after the crash and 

just beginning to regain consciousness as he was moved into the 
ambulance, field tests would have been inappropriate. At the 

hospital, Palmer seemed confused when Reynolds sought to explain 

the implied consent law and obtain his permission for a blood test. 

However, he was sufficiently aware to answer questions asked him 

by medical personnel and to refuse the alcohol blood test when 

ordered. 

Further, the trier of fact can consider as evidence of guilt 

refusal to submit to a blood test or other tests of intoxication 

as provided by law. Section 61-8-404(2), MCA; State v. Jackson 

(1983), 206 Mont. 338, 347, 672 P.2d 255, 259. 

We hold that sufficient evidence was presented for the 

District Court to conclude that Palmer was guilty beyond a 

reasonable doubt of driving under the influence of alcohol. The 

judgment of the District Court is affirmed. 

We concur: A"