No. 87-393 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKENT LAVERN KEIL 

Defendant and Appellant 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Pondera, 

The Honorable Ronald D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Bozeman, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, 

Montana 

Betsy Brandborg, Assistant Attorney General, 

Douglas Anderson, Pondera County Attorney, Conrad, 

Montana 

Submitted on Briefs: February 4, 1988 

~ecided:MAR 1 7 1988 

Filed: MAR 1 7 1988 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant Keil appeals a jury conviction for reckless 

driving in attempting to elude a peace officer. On June 8, 

1987, Keil was fined $300 and sentenced to thirty days in the 

Pondera County jail, with all thirty days suspended. We 

affirm. 

Keil presents two issues for our review: 

1. Does the offense of reckless driving as defined in 

61-8-301(1) (b), MCA, require the use of a siren by a pursuing highway patrolman? 

2. Did the District Court abuse its discretion in 

denying Keil's motion for acquittal? 

On the night of May 8, 1986, highway patrolman Sam 

Harris was driving north toward Conrad, Montana. Officer 

Harris noticed the headlights of a southbound car approaching 

him at high speed. The patrolman's radar detector clocked 

the approaching car at 96 miles per hour. 

As the car passed him, Officer Harris immediately 

turned on his flashing lights and began his pursuit. The 

patrolman saw the car's brake lights momentarily illuminate, 

then go off as the car stretched its lead. One-quarter mile 

after pursuit began, Officer Harris noticed beer cans, a 

cardboard beer carton and fresh "spew marks" on the highway. 

The debris had not been there prior to the car's passage. 

During the chase, Officer Harris radioed the local 

sheriff and learned that the car was registered to Dale and 

Sherry Keil of Ledger, Montana. The sheriff contacted the 

Keils, who stated that the car was probably being driven by 

their son, Kent Keil. 

Pursuit speeds reached 110 miles per hour. Officer 

Harris testified that the Keil car "had more engine that I 
had." Eventually, Officer Harris lost sight of the car in 

the town of Brady. He abandoned the chase. 

Officer Harris returned to the area of the pursuit and 

retrieved several Rainier beer cans from the highway. Officer Harris drove to Conrad. He then proceeded toward Brady 

by an alternate route. He again met the Keil car which was 

now traveling slowly toward Conrad. The car's engine was 

very low on oil and knocking. Officer Harris turned on his 

flashing lights and the car stopped immediately. The driver 

was Kent Keil. 

Officer Harris cited Keil for speeding and reckless 

driving by attempting to elude a peace officer. Keil pleaded 

guilty to night speeding. However, he pleaded not guilty to 

reckless driving. Keil was subsequently convicted by a jury 

in justice court. He appealed to the District Court, where a 

jury trial de novo again found him guilty. 

Issue 1. Use of a siren. 

Keil was convicted of violating S 61-8-301 (1) (b) , MCA, 

which states: 

A person commits the offense of reckless 

driving if 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. [Emphasis added.] 

Section 61-9-402, MCA, states: " (1) A police vehicle 

shall be equipped with a siren capable of giving an audible 

signal and may, but need not, be equipped with alternately 

flashing or rotating red or blue lights as specified herein." 

(Emphasis added. ) 
Keil contends that the word "equipped" mandates the 

"use" of a siren. Keil asserts that he is not guilty because 

Officer Harris did not use his siren, which Keil argues is an 

essential element of the offense. 

Keil's argument is without merit. Section 61-9-402 

simply requires that the police car be equipped with a siren. 

The mere presence of the siren on the car does not mandate 

its use. Such use is optional. As Officer Harris testified: 

"The siren, for the most part, works to alert pedestrians or 

somebody who is out of a vehicle. If you get more than 100 

feet behind the car traveling at a very high rate of speed, 

you cannot hear the siren at all." 

By the plain language of the statute, we hold that the 

use of a siren is not an essential element of an offense 

under $ 61-8-301 (1) (b) . 

Issue 2. Denial of motion for acquittal. 

After the State had presented its case, Keil moved for 

a judgment of acquittal, which the court denied. Keil contends that the motion should have been granted because Officer Harris did not use his siren. Keil further asserts that 

he never saw the flashing lights. 

Keil's motion was without merit. Such a motion may only 

be granted where there is - no evidence upon which the trier of 

fact could base a verdict of guilty. Section 46-16-403, MCA; 

State v. Matson (Mont. 19871, 736 P.2d 971, 974, 44 St-Rep. 

In the instant case, Officer Harris testified that his 

pursuit lights are high-intensity strobes which flash red, 

white and blue. The State also presented a police officer 

from Conrad who saw Officer Harris's flashing lights from two 

miles away. 
Furthermore, the State presented two passengers who 

were in Keil's car during the pursuit. One passenger admitted tossing a Rainier box out of Keil's car in the area of 

the pursuit. Both passengers testified that Keil was speeding. This evidence, combined with the flicker of Keil's 

brake lights when Officer Harris turned on his flashing 

lights, was sufficient to convince the jury of Kei-1's guilt. 

Based on the State's presentation of evidence, we hold 

that the District Court properly denied the motion. 

Affirmed. 

We concur: