N O. 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 SixteenthJudicial District, 

### In and for the County 

### of Rosebud, The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Richard 

### J. Carstensen, Attorney at Law, Billings, Montana For Respondent: HonorableMarc 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, 1992Justice 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 therewas sufficient foundationto 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 amisdemeanor. 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 womendid not understand what the defendant was saying and they quickly proceeded to their car. As they were leaving the scene, the women

sawthedefendantback his pickup into aparked car. Lallatin left the car 

### in order to obtain the defendant's licensenumber. Shewas 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 fewminutes, the defendant pulled into the parking lot of a bowling alley. Jenrichdrove to the sheriff'soffice and reported the incident,as well as the locationof 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 licenseplates 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,hiswalkingwas staggered,and he emitted an odor of an alcohol. Thewaitress told one of the officers that she refused to serve the defendant alcohol because of his intoxicated state. 3Officer 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 thepeace. Defendantappealed 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. 4I Whether the District Court erred when it denied defendant's motion in limine to prohibit two witnesses' testimonybecause 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'swritten statementwhichwas given to the sheriff'soffice

on the night of the incident. The District Court denied themotion and ordered the State to question the witnesses as to whether either of themhad 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 Italist of the names and addresses of all personswhom 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 informationthat exculpates the defendant." State

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

5This Court established the following standard for lost or destroyed evidence: [Tlhat when the State, due to negligence, loss, replacement or destruction, isunable toproduce 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 innature,and the resultwould not havebeen affected by their introduction. State v. Halter (1989), 238 Mont. 408, 412, 777 P.2d 1313, 1316

(citingState 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 [citationomitted], 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 comparableevidenceby other reasonablyavailablemeans. In this case, defense counsel had other reasonable means to obtain comparable evidence. At the first District Court trial, Jenrich testified that shehad a copy 

### of the statement that shehad given to authorities. Defense counsel had approximately nine months before the start of the second trial to either interviewthe 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 shehad thrown awayher copy of
6the 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 areasonabledoubt that the offensewas committedknowinslyby suchDefendantas avoluntaryact. The word "act" means a thing done or that which is done. It includes any bodily movement, any form 

### of communicationand,where relevant,a failure or omission to take action. [Emphasisadded.] In State 

### v. McDole (1987),226 Mont. 169, 175, 734 P.2d 683, 686, we held that 'l[d]rivingunder 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.
7McDole, 734 ~.2d at 686 (quotingErwin, Defense of Drunk Drivinq Cases, 

### 5 1.05 (1986)). Theproposed jury instruction required the State toprove 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 instrumentsused to administertesting according to section 61

-8

-405MCA, must be approvedby thedivision. Themodels operatedby certifiedoperators and/or operator supervisorsprior 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

8insurethat itwould accuratelymeasure thedefendant'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 statedthat thedivisionhad inspectedandverified 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 inpassing on the admissibility of evidence." Statev. Hall (1989), 244 Mont. 161, 169, 797 P.2d 183, 188. We will only overturnthedistrict court's determination on the admissibilityof evidence when there has been an abuse of discretion. 

# m, 797 P.2d at 188. We hold therewas 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.

9Defendant alleges that the Statemade continual referencesand placed evidence before the jury relating to a presumption of intoxication. In its opening statement, the prosecution stated: And thena central piece of evidencewould 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 thiswill be an importantnumber to keep inmind whenyoureceive the Court

## 'sinstructionsas 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 keepgoing through this, this is an ultimate conclusion for the jury andwe'll askyounot 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 degreeangle 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 testimonywas thatyou found themaximum of

10MR.FORSYTHE: NO, 1'11withdraw thatparticular question and answer as to the alcohol levels. THE COURT: The jury is directed to disregard the testimonyaswith respectto anyparticularpercentage 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 jurywill 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 thevehicle 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 acceptwhat either counsel saysthe law is,but to take the law from the instructions. Inaddition, defendant alleges that a statement made by OfficerMoe 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

11presumed cured. State

### v. Staat (Mont. 1991), 48 St.Rep 1041, 1044 (Staat 11). The District Court sustained defendant's objections relating to anypossible referencestopresumptionsof 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 ormore 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 todeterminewhether the factsand 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 isnot,aswas 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 consistentwith our holding in Leverette thatpresumptionsor inferencesmustbe "unambiguouslypermissive.'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, therewas no objectionmade to the playing of thevideo in front of the jury. "Failure to make a timely objection during trial constitutes awaiver of the objection

# . . 

# . .I' Section 46-20-104, MCA (1989). We hold that therewas no error in admitting thevideo tape.

12V Whether the Justice Court had original jurisdiction because the penalty imposed for a DUI conviction exceeds the definition of

amisdemeanor. 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 48hours of whichmust be servedconsecutively,or more than 6months." 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 includealcoholor drug treatment, or both. The Idaho Supreme Court addressed a similar issue in Statev. 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 jurisdictionof 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

13right 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 fatalitiesrelated to drinking and driving onMontana's roadsandhighways. Requiring

a DUI offender to attend an alcohol treatment program serves the purpose 

### of protecting thepublic 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 recognizesadistinction between the assessmentof finesand 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 "specificallyincurredby theprosecution 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 indefendant's sentence does not amount to a felony and that the Justice Court had original jurisdiction.

14VI 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:

15February25, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwassentby United States mail,prepaid,to thefollowing named:

RICHARDJ.CARSTENSEN Attorney atLaw P.O. Box2093 Billings, MT 59103

-2093

HON.MARC RACICOT, Attorney General JusticeBuilding Helena. MT 59620 

### ,Assistant

MARVINQUINLIN,County Attorney RosebudCounty Drawer 69 Forsyth, MT 59327

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA BY: Deput