No. 14210 

IN THE SUPREME CCUR!I' OF THE! STATE OF MONTANA 

1978 

STATE OF !rnANA, 

Plaintiff and Respondent, 

-VSJAMES DOELAS KIRKALDIE, 

Defendant and Appellant. 

Appl fm: District Court of the Fourth Judicial District, 

Honorable Edward T. Dussault, Judge presiding. 

Counsel of Record: 

For Appellant: 

&bralest Volinkaty and Harr, Missoula, Montana 

Julio mrales argued and Arthur B. Harr argued, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, &bntana 

Mike math argued, Assistant Attorney General, Helena, Pbntana 

mbert L. Deschamps, I11 argued, County Attorney, Missoula, Montana 

Sulxnitted: September 12, 1978 

Decided : Nf " 3 '; L. 1978 

. - Filed: - - - , si@ 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Defendant appeals from his conviction of negligent homicide following a jury trial in the District Court of Missoula 

County. 

Defendant is James Douglas Kirkaldie, the driver of a 

1972 Buick Skylark in which a passenger, 15 year old Douglas 

Schaffer, was killed. The accident occurred on April 24, 1977, 

between midnight and 1:00 a.m. on Interstate 90 approximately 

one and one-half miles west of the Reserve Street exit near 

Missoula, Montana. Defendant's automobile left the pavement, 

went onto the median, and rolled over several times, throwing 

defendant, the deceased, and another passenger, 15 year old Jay 

Bush, out of the car. They were taken by ambulance to St. Patrick's 

Hospital where Douglas Schaffer died about 1:25 a.m. 

Following a coroner's inquest, defendant was charged with 

negligent homicide and entered a plea of not guilty. A jury 

trial was held in the District Court of Missoula County commencing on November 10, 1977, which resulted in a verdict of guilty. 

Defendant was sentenced to a term of 10 years in the State Prison 

which he is presently serving. 

The uncontradicted testimony indicates that during the 

evening defendant and the two 15 year old boys, Schaffer and 

Bush, were at a party at another's trailer home at the Skyline 

Trailer Court west of Missoula. Defendant admits drinking a 

half pint of vodka and 2 or 3 beers there. Defendant and the 

two boys left about 11:OO p.m. in defendant's car to go to Lolo, 

Montana to pay a $5.00 debt defendant owed Joe Mandala who ran 

a restaurant there. 

From this point on, two sharply differing versions of 

the facts emerged at the trial. According to Jay Bush, defendant drove erratically to the Midi Mart store where defendant 
purchased a six pack of beer. Defendant started to drive the 

car again but at the insistence of Doug Schaffer, defendant 

allowed Schaffer to drive to Lolo. Bush testified that he and 

Schaffer each had one can of beer while defendant consumed the 

other four cans. 

According to Bush, when defendant went in and came 

out of Mandala's restaurant in Lolo, he was staggering. Defendant would not let Schaffer drive, and defendant's driving was 

erratic on the return trip. After arriving in Missoula, they 

proceeded along Reserve Street and onto the freeway. They 

passed another car on the on-ramp, entered the freeway and proceeded west. 

About a mile and a half down the freeway on a slight 

curve, defendant's car drifted off the pavement, into the gravel 

on the shoulder, and onto the median. According to the highway 

patrolman, the car was travelling at a speed of at least 80 miles 

an hour, rolled over five times, and travelled over 200 yards 

from the point it left the pavement to where it started to roll. 

Defendant denied stopping at the Midi Mart for beer on 

the way to Lolo. He denied drinking anything after they left 

the trailer house at 11:OO p.m. He denied that Schaffer drove 

from the Midi Mart to Lolo. Both he and the Mandalas denied that 

he was intoxicated or staggering at the latter's restaurant in 

Lolo. 

On the return trip, defendant admitted passing a car on 

the ramp to Interstate 90. He testified that when he got on the 

freeway he was travelling about 60 miles an hour. As he was 

approaching the scene of the accident, he started to pass a 

pickup truck. It began moving over into the passing lane and in 

an attempt to avoid it, his wheels hit the gravel shoulder pulling him onto the median and causing him to loose control of his 

car. Defendant consistently maintained he was not drunk. 
When the highway patrolman arrived at the scene of the 

accident, he could smell alcohol on defendant's breath. He advised defendant of his constitutional rights. Although the 

officer felt defendant was intoxicated, he did not place him 

under arrest. The officer asked defendant to submit to a blood 

alcohol test. Defendant refused. 

At the hospital, the officer again asked defendant to 

submit to a blood alcohol test. Defendant again refused. The 

deputy coroner made a similar request which defendant refused. 

The deputy coroner called the sheriff who was a neighbor and 

friend of defendant; he could not remember what the sheriff said 

to defendant, but did remember that the sheriff was concerned 

about defendant's condition. The deputy coroner also called the 

county attorney who advised him to get a blood sample. The deputy coroner again requested defendant to give a blood sample. 

Defendant again refused, explaining he was a diabetic and could 

not give blood. 

The deputy coroner then talked to the attending physician 

in the emergency room at the hospital who advised him that defendant's diabetes would not interfere with his giving a blood sample. 

The coroner requested the doctor's help in obtaining a blood 

sample. The doctor talked to defendant about submitting to a 

blood test. The defendant then consented. A blood sample was 

drawn that revealed a blood alcohol level of 0.28. Defendant had 

not been arrested, a search warrant had not been obtained, and 

defendant had not signed a written consent form. 

Prior to trial defendant moved to suppress the results of 

the blood alcohol test and for a change of venue. At the suppression hearing defendant contended his consent to having blood 

drawn was to check his blood sugar level of his diabetes, not for 

a blood alcohol test. Defendant also sought a change in the place 

of trial because of two newspaper articles in the Missoulian 
which he claimed deprived him of a fair trial in Missoula 

County. The District Court denied both motion. 

Defendant advances four specifications of error in this 

appeal : 

(1) Failure to suppress the results of the blood alcohol 

test. 

(2) Denial of a change of venue. 

(3) Error in jury instructions. 

(4) Insufficient evidence to support his conviction. 

The principle issue in this appeal is the trial court's 

refusal to suppress the results of the blood alcohol test. Defendant argues that his consent to the test was not voluntary 

but was the product of psychological coercion by the State. He 

contends that the drawing of the blood from his body amounted to 

an unlawful search and seizure prohibited by the State and Federal Constitutions. 

At the outset, we observe that the admissibility of the 

results of the blood alcohol test in this test is not based on 

implied consent to the withdrawal of defendant's blood under the 

implied consent law of this state. Section 32-2142.1, R.C.M. 

1947. Instead, it is bottomed on the actual consent of the 

defendant which he admits. The issue turns on whether defendant's 

consent was voluntary of was coerced by psychological means. 

The taking of a blood sample for a blood alcohol test 

is a search and seizure subject to the protection of the Fourth 

Amendment to the United States Constitution. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L Ed 2d 908. However, a search and seizure with the consent of defendant is not 

prohibited. State v. Williams (1969), 153 Mont. 262, 455 P.2d 

634. 

In this state, evidence concerning the taking, analysis 

and result of a blood sample taken from defendant with his con- 
sent is admissible in evidence. State v. Haley (1957), 132 

Mont. 366, 318 P.2d 1084. The consent must be voluntary with 

voluntariness determined by an examination of all of the circumstances surrounding the consent. Schneckloth v. Bustamonte 

8; .;' 

(1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L Ed 2d 584. 

According to defendant, the reason he refused the earlier 

requests of the highway patrolman and the deputy coroner for a 

blood sample was because he was a diabetic and could not give 

blood. He maintains that he was never told by the doctor that 

the blood sample to which he ultimately consented was to be used 

for legal purposes or that he could refuse to give a blood sample. 

Defendant testified that when the doctor asked for a blood sample, 

he simply "assumed" it was for a blood sugar test. He admits 

that the doctor discussed with him the legal ramifications of 

refusing a blood alcohol test. 

The doctor testified to a different version of his conversation with defendant. The doctor, repeatedly testified that 

he informed the defendant that the blood sample was not for 

medical treatment. He testified that he told defendant about 

the legal ramifications of refusing a blood alcohol test, informed 

defendant that refusal to submit to a blood alcohol test was 

tantamount to an admission of intoxication under state law, and 

that it was in his best interests to have this done. The doctor testified that he made it clear to defendant that he did 

not have to give blood, but did not recall specifically and explicitly discussing that under state law, defendant was not 

required to give a blood sample. 

The credibility of the witnesses at a suppression hearing is properly determined by the trial court that heard testimony 

and observed the witnesses. United States v. Owens (8th Cir. 1973), 

472 F.2d 780, cert.den. 412 U.S. 951, 93 S.Ct. 3019, 37 L Ed 2d 

1004. In a suppression hearing, the trial court sits as a finder 
of fact with power to resolve conflicts in the evidence. People 

v. Hill (1974), 117 Cal.Rptr. 393, 528 P.2d 1. Here the trial 

court resolved those conflicts against the defendant. 

The trial court simply did not believe that defendant 

had not been advised that the blood was to be used for a blood 

alcohol test or that he could refuse to give a blood sample. 

Defendant admitted that the doctor did not tell him the blood 

was to be used for a blood sugar test or for medical purposes, but 

he simply "assumed" this. The doctor testified and defendant 

admitted that the doctor discussed the legal ramifications of 

refusing a blood alcohol test. 

The fact that defendant first refused consent is not 

controlling. Davis v. United States, (1946), 328 U.S. 582, 66 

S.Ct. 1526, 90 L.Ed. 1453. It is simply a circumstance to be 

considered along with all other circumstances in determining the 

voluntary or involuntary character of the consent. A consent to 

search is not subject to the strict standard that is applied 

to fair trial rights or confessions under Miranda v. Arizona 

(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694. The United 

States Supreme Court has expressed this distinction in this 

language : 

"Almost without exception, the requirement of a 

knowing and intelligent waiver has been applied 

only to those rights which the Constitution guarantees to a criminal defendant in order to preserve 

a fair trial. 

"The protections of the Fourth Amendment are of a 

wholly different order, and have nothing whatever 

to do with promoting the fair ascertainment of truth 

at a criminal trial. . . . [Tlhe Fourth Amendment 

protects the 'security of one's privacy against 

arbitrary intrusion by the police . . .. I II 

Schneckloth v. Bustamonte, supra. 

There is substantial evidence that defendant was not 

psychologically coerced, tricked, or fraudulently influenced 

to give a blood sample for the purpose of a blood alcohol test. 
There is substantial evidence that his consent was free and 

voluntary. The trial court committed no error in denying defendant's motion to suppress the results of the blood alcohol 

test. 

Defendant next contends that denial of his motion for 

a change of venue constituted reversible error. He claims 

that news items in the Missoulian amounted to prejudicial pretrial publicity and denied him a fair trial. The objectionable 

features of the news items according to defendant were the report 

that defendant's blood alcohol tested three times greater than 

the statutory presumption that a person is under the influence 

of alcohol where his blood alcohol level tests 0.10; that the 

coroner's jury unanimously found that defendant was driving in 

a grossly reckless and culpable manner at the time of the accident; and that the county attorney's office indicated that perjury charges might be filed against defendant. The news items 

were attacked by an affidavit of one of defendant's attorneys 

that he believed defendant had been prejudiced by these news reports and would be unable to receive a fair trial in Missoula 

County. 

Denial of a motion for change of venue is not reversible 

error in the absence of an abuse of discretion by the trial 

court. State v. Logan (1970), 156 Mont. 48, 573 P.2d 833; State 

v. Warrick (1968), 152 Mont. 94, 446 P.2d 916. Affidavits stating opinions and not facts do not constitute a showing of an 

abuse of discretion. State v. Barick (1964), 143 Mont. 273, 389 

P.2d 170; State ex rel. Hanrahan v. Dist. Ct. (1965), 145 Mont. 

501, 401 P.2d 770. 

Here the news articles were published approximately six 

months prior to trial. There is nothing to indicate that any of 

the jurors had even read the articles. There is no showing that 

any juror was tainted or predisposed by the appearance of these 
articles. Under such circumstances, the trial court did not 

abuse its discretion in denying a change of place of trial. 

Defendant next argues that the jury was not properly 

instructed. His objections are mainly that three of his proposed instructions that he argues should have been given are 

instructions Nos. 7, 8 and 9. 

Proposed instruction No. 7 is on involuntary intoxication. It reads: 

"An intoxicated person is criminally responsible 

for his conduct unless his intoxicated condition 

is involuntarily produced and deprives him of 

his capacity to appreciate the criminality of his 

conduct or to conform his conduct to the requirements of law." 

The State objected to this instruction because defendant had 

not presented any evidence showing that his intoxication was 

"involuntarily produced". The court denied the instruction on 

this ground. 

The trial court correctly refused this instruction. The 

record discloses no evidence of involuntary intoxication. No 

instruction may be given which is not supported either by some 

direct evidence or some logical inference from evidence presented at trial. State v. Miner (1976), 169 Mont. 260, 546 P.2d 252. 

Here there was none, so the proposed instruction was properly 

refused. 

Proposed instruction No. 8 also dealt with intoxication. 

It reads: 

"An intoxicated condition may be taken into consideration in determining the existence of a 

mental state which is an element of the offense." 

The State objected to this instruction on the ground that defendant's state of mind was not an issue in this case. 

The defendant was charged with negligent homicide. Section 94-5-104, R.C.M. 1947, defines negligent homicide as criminal homicide which is committed negligently. Unlike deliberate 

homicide, which requires that the offense be committed purposely 
or knowingly, negligent homicide does not require such purpose 

or knowledge. Negligent homicide only requires a gross deviation from a reasonable standard of care. 

Criminal negligence can arise as a result of intoxication. Defendant's mental state at the time he was driving his 

car was not in issue. Issue was whether the driving of a car 

while intoxicated was a gross deviation from the standard of 

reasonable care. We find no error in the trial court's refusal 

of this proposed instruction. 

Proposed instruction No. 9 dealt with proximate cause. 

It stated: 

"You are instructed that even if you believe the 

Defendant to have been driving at an excessive 

rate of speed and while intoxicated, nevertheless 

if you also find that the accident was caused by 

the Defendant's vehicle being forced off the pavement by another vehicle then you shall return a 

verdict of not guilty." 

This instruction dealt with defendant's theory of how the accident 

happened. The State objected to this instruction on the ground 

the other instructions given the jury adequately covered the 

issues raised in this instruction. 

The jury was adequately instructed on reasonable doubt 

and the elements of the offense charged. Under the given instructions, if the jury believed defendant's account of the accident, 

they could have found in his favor. However, it was the jury's 

duty to determine which account of the accident, the State's or 

defendant's, they believed to be more credible and worthy of 

belief. State v. Lewis (1976), 169 Mont. 290, 546 P.2d 518. 

Where the jury is adequately instructed, no error occurs in refusing a proposed instruction which is already covered. Here 

the jury was fully instructed and defendant's attorney had a 

full opportunity to argue the merits of his defense. See State 

v. Smith (1975), 168 Mont. 93, 541 P.2d 351. We find no error 

here. 
The final issue concerns the sufficiency of the evidence to sustain his conviction. 

The jury is the fact-finding body and its decision is 

controlling. State v. Fitzpatrick (1973), 163 Mont. 220, 516 

P.2d 605. Given the required legal minimum of evidence, we 

will not substitute our determination of the facts for that of 

the jury. State v. Merseal (1974, 167 Mont. 412, 538 P.2d 

1366. If substantial evidence is found to support the verdict, 

it will stand. State v. McKenzie (1978), Mont . -I - 

P. 2d , 35 St.Rep. 759; State v. White (1965), 146 Mont. 226, 

405 P.2d 761. In this case, the evidence shows that defendant 

was driving his car while intoxicated and it was because of his 

intoxication that the accident occurred resulting in the death 

of Douglas Schaffer. This constitutes substantial evidence 

supporting defendant's conviction. 

We have examined all arguments and authorities advanced 

by defendant. None would change the result of this appeal. We 

find it unnecessary to comment on each in this opinion. 

Affirmed. 

Chief Justice 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later.