NO. 91-310 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

V. 

ARNOLD WEST, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Joe L. Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Carstensen, Attorney at Law, 

Billings, Montana 

For Respondent: 

Honorable Marc Racicot, Attorney General, 

Deanne L. Sandholm, Assistant Attorney General, 

Helena, Montana: John S. Forsythe, Rosebud 

County Attorney, Forsyth, Montana 

Submitted on Briefs: October 31, 1991 

Decided: February 25, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Defendant Arnold West was convicted of driving under the 

influence of alcohol by a jury trial in the Montana Sixteenth 

Judicial District Court, Rosebud County. Defendant appeals the 

conviction. We affirm the District Court. 

Defendant raises the following issues for appeal. 

1. Whether the District Court erred when it denied 

defendant's motion in limine to prohibit two witnesses' testimony 

because the State failed to provide defendant with a copy of the 

statement of one of the witnesses. 

2. Whether the District Court erred when it refused 

defendant's jury instruction defining a voluntary act. 

3. Whether there was sufficient foundation to introduce into 

evidence the results of an alcohol breath test. 

4. Whether the State's references to presumptions based on 

the results of an alcohol breath test prejudiced the defendant. 

5. Whether the Justice Court had original jurisdiction 

because the penalty imposed for a DUI conviction exceeds the 

definition of a misdemeanor. 

6. Whether the District Court erred when it excluded jury 

instructions that the State must prove that the defendant acted 

purposely and knowingly. 

On the evening of October 18, 1989, Sharyle Lallatin and her 

sister Caryle Jenrich were leaving a movie theater in Colstrip, 

when they noticed defendant in a nearby parking lot. In an effort 

to gain their attention, he yelled and waved at them. The women 
did not understand what the defendant was saying and they quickly 

proceeded to their car. As they were leaving the scene, the women 

saw the defendant back his pickup into a parked car. Lallatin left 

the car in order to obtain the defendant's license number. She was 

able to obtain the number and reported the incident to the 

sheriff's office. 

In the meantime, Jenrich followed the defendant so that she 

could report the location of the defendant. After a few minutes, 

the defendant pulled into the parking lot of a bowling alley. 

Jenrich drove to the sheriff's office and reported the incident, as 

well as the location of the defendant, to the dispatcher. while at 

the sheriff's office, Jenrich prepared and signed a written 

statement. She was then given a copy of her statement. 

Rosebud County Deputy Sheriff Charles Hartman and Officer 

Mitchell Moe responded to the call. When they arrived at the 

bowling alley, they located the defendant's pickup in the back 

parking lot. The license plates of the vehicle were registered in 

the defendant's name. Finding the defendant sitting at a bar in 

the bowling alley talking to a waitress, the officers escorted him 

outside. After being questioned, the defendant admitted to being 

at the parking lot near the movie theater and driving to the 

bowling alley. The officers observed that the defendant's speech 

was extremely slurred, his walking was staggered, and he emitted an 

odor of an alcohol. The waitress told one of the officers that she 

refused to serve the defendant alcohol because of his intoxicated 

state. 

3 
Officer Hartman returned to the scene of the hit and run but 

could not find any physical evidence that a car had been struck. 

Except for the two women, no one else reported to the sheriff's 

office that a vehicle had been hit on that night. 

Officer Moe performed the usual field sobriety tests on the 

defendant in the parking lot of the bowling alley. Defendant 

failed the horizontal nystagmus test and could not perform the 

one-leg-stand balancing test. The defendant was placed under 

arrest for driving under the influence of alcohol in violation of 

§ 61-8-401, MCA (1989). Approximately one and one-half hours had 

elapsed from the time the women witnessed the accident to the time 

defendant was arrested. 

On January 12, 1990, defendant was initially found guilty in 

a non-jury trial before a justice of the peace. Defendant appealed 

the case to District Court and was convicted by a six person jury 

on July 12, 1990. On September 5, 1990, defendant appealed his 

conviction. On January 30, 1991, we remanded the case to District 

Court because the court gave a jury instruction on mandatory 

conclusive presumption of intoxication which was contrary to our 

holding in State v. Leverette (1990), 245 Mont. 124, 799 P.2d 119. 

On April 9, 1991, defendant was tried and convicted of the same 

offense. On April 10, 1991, the court entered its judgment. 

Defendant was fined $300, given a six month suspended sentence, 

ordered to pay costs, and required to attend an alcohol treatment 

program. Defendant appeals the conviction and judgment of the 

District Court. 

4 
I 

Whether the District Court erred when it denied defendant's 

motion in limine to prohibit two witnesses' testimony because the 

State failed to provide defendant with a copy of the statement of 

one of the witnesses. 

On the morning of the second District Court trial, defense 

counsel filed a motion in limine to exclude the testimony of 

Jenrich and Lallatin because the State failed to produce a copy of 

Jenrich's written statement which was given to the sheriff's office 

on the night of the incident. The District Court denied the motion 

and ordered the State to question the witnesses as to whether 

either of them had a copy of any such statement. Jenrich testified 

that she had thrown away her copy and no statement was ever 

produced. Defendant argues that allowing the testimony of the two 

witnesses constituted prejudicial error. 

Section 46-15-322(1)(a), MCA (1989), requires that the State 

disclose Ita list of the names and addresses of all persons whom the 

prosecutor intends to call as witnesses in the case-in-chief, 

together with their relevant written or recorded statements." 

There is a continuing duty placed upon the prosecution throughout 

the course of the criminal proceedings to disclose relevant 

materials. Section 46-15-327, MCA (1989). The statutes go into 

effect when "the State actually develops the knowledge of a 

specific act, fact, or information that exculpates the defendant." 

State v. Shaver (1988), 233 Mont. 438, 447, 760 P.2d 1230, 1235. 

5 
This Court established the following standard for lost or 

destroyed evidence: 

[Tlhat when the State, due to negligence, loss, 

replacement or destruction, is unable to produce certain 

physical evidence in the prosecution of the case, 

reversal of a conviction is not necessary where the 

actual objects were not vital to the defense, were not 

exculpatory in nature, and the result would not have been 

affected by their introduction. 

State v. Halter (1989), 238 Mont. 408, 412, 777 P.2d 1313, 1316 

(citing State v. Ronald Lee Craig (1976), 169 Mont. 150, 545 P.2d 

649). 

In California v. Trombetta (1984), 467 U.S. 479, 488-89, 104 

S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422, the United States Supreme 

Court added the following: 

Whatever the duty the Constitution imposes on the States 

to preserve evidence, that duty must be limited to 

evidence that might be expected to play a significant 

role in the suspect's defense. To meet this standard of 

constitutional materiality [citation omitted], evidence 

must both possess an exculpatory value that was apparent 

before the evidence was destroyed, and be of such a 

nature that the defendant would be unable to obtain 

comparable evidence by other reasonably available means. 

In this case, defense counsel had other reasonable means to 

obtain comparable evidence. At the first District Court trial, 

Jenrich testified that she had a copy of the statement that she had 

given to authorities. Defense counsel had approximately nine 

months before the start of the second trial to either interview the 

witness or request the county attorney to provide him with a copy 

of the statement. Neither the sheriff's office nor the county 

attorney had an original or copy of the statement in their 

possession. Jenrich testified that she had thrown away her copy of 

6 
the statement. In addition, defense counsel failed to allege the 

exculpatory value of the evidence, or how the introduction of the 

written statement could have changed the result of the trial. We 

hold that the District Court did not err in denying defendant's 

motion in limine. 

I1 

Whether the District Court erred when it refused Defendant's 

jury instruction defining a voluntary act. 

Defense counsel proposed the following jury instruction: 

In order to prove the charge of Driving a Motor 

Vehicle While Under the Influence of Alcohol, the State 

must prove beyond a reasonable doubt that the offense was 

committed knowinsly by such Defendant as a voluntary act. 

The word "act" means a thing done or that which is 

done. It includes any bodily movement, any form of 

communication and, where relevant, a failure or omission 

to take action. [Emphasis added.] 

In State v. McDole (1987), 226 Mont. 169, 175, 734 P.2d 683, 

686, we held that 'l[d]riving under the influence is an absolute 

liability offense not requiring the proof of the mental state by 

the State." Section 61-8-401(7), MCA (1989), states that 

~~[a]bsolute liability as provided in 45-2-104 will be imposed for 

a violation of this section." 

The basic reason for not requiring the state to prove mental 

intent in DUI cases is that: 

[Slituations could arise in which defendants 

could not be convicted under the statute 

because they were too intoxicated to form the 

requisite intent. The paradoxical and absurd 

result would be that the more intoxicated the 

driver became the better his chances of 

avoiding liability under the statute. 

7 
McDole, 734 ~.2d at 686 (quoting Erwin, Defense of Drunk Drivinq 

Cases, 5 1.05 (1986)). 

The proposed jury instruction required the State to prove the 

defendant knowingly committed the offense. Absolute liability 

statutes do not require proof of a mental state. We hold the 

District Court did not err in refusing the jury instruction 

defining a voluntary act. 

I11 

Whether there was sufficient foundation to introduce into 

evidence the results of an alcohol breath test. 

When a defendant is charged with driving under the influence 

of alcohol, he is "entitled to any procedural safeguards in the 

Administrative Rules of Montana." State v. O'Brian (1989), 236 

Mont. 227, 229, 770 P.2d 507, 508. Section 23.4.209 ARM (1989) 

required : 

(1) All models of breath-testing instruments used 

to administer testing according to section 61-8-405 MCA, 

must be approved by the division. The models operated by 

certified operators and/or operator supervisors prior to 

and on the effective date of this rule are deemed 

approved by the division. 

(2) Each breath-testing instrument must be 

inspected by the division, and the accuracy verified by 

the division, prior to installation of the instrument. 

Defendant contends that the State failed to lay proper 

foundation proving that the intoxilyzer was properly tested and 

certified prior to administering the test on the defendant. 

Officer Moe testified that he was certified to operate the 

intoxilyzer and that he calibrated and tested the instrument to 

8 
insure that it would accurately measure the defendant's breath. He 

also testified that in order for the intoxilyzer to take an 

accurate reading, the instrument must be calibrated at .loo. He 

then testified, and the record reflects, that the instrument was 

properly calibrated at .lo0 immediately prior to administering the 

test to defendant. 

In addition, the record contains a letter dated May 11, 1990, 

from the Forensic Science Division of the Justice Department. It 

stated that the division had inspected and verified the intoxilyzer 

in the Rosebud County Sheriff's office and that it met all of the 

Division's requirements at the time of installation. The letter 

also stated that Officer Moe was a certified operator because he 

had completed the Breath Test for Intoxilyzer School which was 

required before he completed his police training in 1989. 

We have stated "that the District Court has latitude of 

discretion in passing on the admissibility of evidence." State v. 

Hall (1989), 244 Mont. 161, 169, 797 P.2d 183, 188. We will only 

overturn the district court's determination on the admissibility of 

evidence when there has been an abuse of discretion. m, 797 

P.2d at 188. We hold there was sufficient foundation and that the 

District Court did not abuse its discretion in admitting the 

results of the alcohol breath test. 

IV 

Whether the State's references to presumptions based on the 

results of an alcohol breath test prejudiced the defendant. 

9 
Defendant alleges that the State made continual references and 

placed evidence before the jury relating to a presumption of 

intoxication. In its opening statement, the prosecution stated: 

And then a central piece of evidence would be the results 

of a breathilizer [sic] test. And we expect that this 

evidence to be introduced, will show that Mr. West, 

blowing into the machine, registered a point two-seven 

alcohol content. And this will be an important number to 

keep in mind when you receive the Court ' s instructions as 

to what level is the presumotion of intoxication. 

[Emphasis added.] 

Officer Moe testified in direct examination to the following: 

Q. How did he exhibit that lack of understanding? 

A. He was just--when I asked him to come along, or 

asked him back to my car, he didn't know what I was 

asking, and he just acted very intoxicated. 

MR. CARSTENSEN: I object, Your Honor, again, and ask 

that the answer be stricken. 

MR. FORSYTHE: As to intoxicated? 

THE COURT: Sustained as to the origin [sic] which 

indicated he was very intoxicated. 

Q. So that we don't keep going through this, this is an 

ultimate conclusion for the jury and we'll ask you not to 

state the standard of intoxication . . . . 

.... 

Q. 

six points, three for each eye: is that correct? 

A. Yes. The normal is if you receive four points, 

they're usually at point one. And then the forty-five 

degree angle is, if it's there they're usually over about 

point one. 

MR. CARSTENSEN: Your Honor, I object and move to strike 

the answer: it's unresponsive and not proper foundation. 

COURT : Do you have an offer of proof? 

And your testimony was that you found the maximum of 

10 
MR. FORSYTHE: NO, 1'11 withdraw that particular question 

and answer as to the alcohol levels. 

THE COURT: The jury is directed to disregard the 

testimony as with respect to any particular percentage of 

alcohol level. 

In closing, the State made the following argument: 

He was at 2.7, 2.7 times .l. So you know, you have 

powerful evidence of intoxication which is based on 

scientific results of tests of the air that the defendant 

breathed. It's incontrovertible evidence. 

MR. CARSTENSEN: I object. I don't believe that's the 

law in Montana. 

THE COURT: Sustained. The jury will disregard the last 

statement of Mr. Forsythe that this is incontrovertible. 

You do have the instructions and . . . . 

.... 

Obviously, when your ability to operate a motor vehicle 

is diminished or less than what it would be if you were 

totally sober, the State and the citizens of this state 

have an interest that you do not operate the vehicle out 

in public ways in that condition. 

MR. CARSTENSEN: I object, Your Honor. I don't believe 

that's the state of the law in Montana. 

THE COURT: Well, the state of the law in Montana is 

stated in the instructions. And the jury is cautioned 

not to accept what either counsel says the law is, but to 

take the law from the instructions. 

In addition, defendant alleges that a statement made by Officer Moe 

in the video tape contained a reference that defendant's alcohol 

breath test was over the legal limit. 

We have previously stated that when counsel opposes the 

admission of evidence and the District Court sustains counsel's 

objection, strikes the evidence from the record, and instructs the 

jury to disregard the evidence, the error that is committed is 

11 
presumed cured. State v. Staat (Mont. 1991), 48 St.Rep 1041, 1044 

(Staat 11). The District Court sustained defendant's objections 

relating to any possible references to presumptions of intoxication 

and admonished the jury. The District Court also gave the 

following jury instruction which read, in part: 

If the defendant has an alcohol concentration in his 

blood of 0.10 or more at the time of the alleged offense, 

you are permitted, but not required to infer that he was 

under the influence of alcohol. It is your exclusive 

provence to determine whether the facts and circumstances 

shown by the evidence warrant the inference to be drawn 

by you. 

In Leverette, 799 P.2d at 125, we held that: 

The solution to the due process problems of using 

presumptions in jury charges is not, as was attempted in 

this case, to make them burden-of-production shifting 

presumptions. The solution is to make the presumptions 

unambiguously permissive. 

The above instruction is consistent with our holding in Leverette 

that presumptions or inferences must be "unambiguously permissive. 'I 

We hold that any error made by the State's references relating to 

the presumption of alcohol was cured by the District Court's 

admonishment of the jury and the reading of the above instruction. 

With regard to the statement Officer Moe made in the video 

tape referring to defendant's breath exceeding the legal limit, 

there was no objection made to the playing of the video in front of 

the jury. "Failure to make a timely objection during trial 

constitutes a waiver of the objection . . . .I' Section 46-20-104, 

MCA (1989). We hold that there was no error in admitting the video 

tape. 

12 
V 

Whether the Justice Court had original jurisdiction because 

the penalty imposed for a DUI conviction exceeds the definition of 

a misdemeanor. 

Defendant argues that because he was fined $300, assessed 

costs, given a six month suspended sentence, and was required to 

attend an alcohol treatment program which has no particular time 

limit, his potential sentence could exceed one year. 

The penalty for a second conviction for driving under the 

influence of alcohol or drugs requires "a fine of not less than 

$300 or more than $500 and by imprisonment for not less than 

7 days, at least 48 hours of which must be served consecutively, or 

more than 6 months." In addition to the incarceration and fine, 

5 61-8-714(4), MCA (1989), requires in part: 

[Tlhe defendant shall complete an alcohol information 

course at an alcohol treatment program approved by the 

department of institutions, which must include alcohol or 

drug treatment, or both. 

The Idaho Supreme Court addressed a similar issue in State v. 

Pruett (Idaho 1969), 428 P.2d 43. The defendant argued that 

suspending the license of a person convicted of reckless driving 

increased the penalty for such offense beyond the jurisdiction of 

the Justice Court. The Court held that: 

[Tlhe revocation of a driver's license is not a part of 

the penalty provided for violation of our statute 

prohibiting driving while intoxicated such that the 

jurisdiction of the justice court was exceeded. The 

conclusion therein that the deprivation of a driving 

13 
right or privilege is for the protection of the public 

and not punishment of the individual . . . . 

Pruett, 428 P.2d at 49. 

The purpose of requiring attendance at an alcohol or drug 

treatment program is to protect the public from habitual DUI 

offenders. The legislature mandated rehabilitation as well as 

punishment in an effort to reduce the number of fatalities related 

to drinking and driving on Montana's roads and highways. Requiring 

a DUI offender to attend an alcohol treatment program serves the 

purpose of protecting the public and not punishing the individual. 

With regard to defendant's allegation that paying a $300 fine 

and costs totalling more than $500 exceeds the maximum penalty 

imposed for misdemeanor offenses, Montana's criminal code 

recognizes a distinction between the assessment of fines and costs. 

Fines are a monetary punishment imposed when an individual pleads 

guilty or is convicted of a criminal offense. Section 46-18-231, 

MCA (1989). Cost are paid by a convicted defendant to reimburse 

the State for expenses "specifically incurred by the prosecution in 

connection with the proceedings against the defendant." Section 

46-18-232(1), MCA (1989). In addition, costs are imposed only at 

the sole discretion of the district court judge. State v. Pease 

(1987), 227 Mont. 424, 434, 740 P.2d 659, 665. 

We hold that the imposition of a $300 fine, costs, 

incarceration, and treatment included in defendant's sentence does 

not amount to a felony and that the Justice Court had original 

jurisdiction. 

14 
VI 

Whether the District Court erred when it excluded jury 

instructions that the State must prove that the defendant acted 

purposely and knowingly. 

Defendant based this contention on the premise that driving 

under the influence is a felony. For reasons discussed above, we 

hold that the District Court did not err in refusing jury 

instructions requiring the State to prove mental intent. 

/ We concur: 

15 
February 25, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

RICHARD J. CARSTENSEN 

Attorney at Law 

P.O. Box 2093 

Billings, MT 59103-2093 

HON. MARC RACICOT, Attorney General 

Justice Building 

Helena. MT 59620 

, Assistant 

MARVIN QUINLIN, County Attorney 

Rosebud County 

Drawer 69 

Forsyth, MT 59327 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deput