No. 14205 

IN THE CCUKT OF THE STATE OF MONTANA 

1978 

STATE OF mm, 

Plaintiff and Respordent, 

-VSRAYMOND NELSON, 

Defendant and Appellant. 

Appeal frm: District Court of the Third Judicial District, 

Homrable mbert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Greg Skakles, Anacorda, Wntana 

For Respondent: 

Mike Greely, Attorney General, Helena, Wntana 

John Radonich, County Attorney, Anaconda, Wntana 

sEP 7 - 'S7p Filed: 

Subitted on briefs: August 3, 1978 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant Raymond Nelson appeals from final judgment 

and conviction for driving while intoxicated rendered August 

31, 1977, following a jury trial in the District Court of 

the Third Judicial District, County of Deer Lodge. 

This case comes to us under Class #2 of the Internal 

Operating Rules of this Court, and as such is being decided 

without oral argument. 

Defendant was involved in an automobile accident at 

approximately 12:30 a.m. on Saturday, November 6, 1976, when 

the car he was driving crossed the center line of Highway 

10-A, west of Anaconda, Montana, and struck an oncoming car 

driven by Linda Boyer of Anaconda. Only minor injuries 

resulted. Following the accident, sheriff's deputies, after 

investigating the accident, took defendant to Community 

Hospital where a blood sample was drawn. The deputies then 

took the sample to the county jail where it was left to be 

mailed to Helena for analysis the following day. Defendant 

was subsequently charged in District Court by information 

with "Driving While Under the Influence of Intoxicating 

Liquor (3rd offense)", to which he pleaded not guilty on 

January 3, 1977. On July 11, 1977, defendant unsuccessfully 

moved to dismiss for failure of the State to bring the case 

to trial within the statutory six month time limit. At 

trial on August 30, 1977, the State did not present any 

evidence of defendant's prior convictions. The jury returned a guilty verdict on August 31 and on October 26 the 

court gave defendant a deferred one-year sentence and 

ordered him to pay a $750 fine. 
Defendant presents four issues for review which we have 

rephrased and regrouped for purposes of this opinion: 

1. Was the information deficient in stating sufficient 

facts to establish the jurisdiction of the District Court? 

2. Did the failure of the State to present evidence 

during the trial of defendant's prior convictions for driving 

while intoxicated entitle him to a directed verdict on the 

ground that the jurisdiction of the District Court was not 

established? 

3. Was defendant denied a speedy trial by the failure 

of the State to bring the case to trial within six months of 

his plea? 

4. Was evidence of defendant's blood test erroneously 

admitted despite a break in the chain of its custody? 

While certain aspects of each of these issues are 

troubling, we find none of them, either singly or in combination, sufficient to warrant reversal and therefore 

affirm the judgment of the District Court. We will discuss 

each issue in turn. 

In Issue 1, defendant questions the sufficiency of the 

information to establish jurisdiction of the District Court. 

Defendant was charged by information with "the crime of 

 riving While Under the Influence of Intoxicating Liquor 

(3rd offense)". Defendant argues strenuously at length that 

"offense" and "conviction" are not the same thing and therefore the information fails to state facts sufficient to give 

the District Court jurisdiction of what is normally a justice court offense. State v. Heine (1975), 169 Mont, 25, 

30, 544 P.2d 1212, 1214. We feel defendant's semantic 

argument is a distinction without a difference under the 

facts of this case. 
In Montana, the criminal jurisdiction of justice courts 

generally extends to all misdemeanors punishable by a fine 

not exceeding $500 or imprisonment not exceeding six months, 

or both such fine and imprisonment. Section 95-302, R.C.M. 

1947. Criminal jurisdiction of the District Courts then 

extends to all public offenses not otherwise provided for. 

Section 95-301, R.C.M. 1947. Under Montana's driving while 

intoxicated statute, it is only upon the third conviction 

that the maximum sentence may be increased to one year and a 

fine of $1,000. Section 31-2142(d), R.C.M. 1947, (as codified at the time of the incident). Only at that time do 

District Courts become vested with jurisdiction over the 

matter. State v. Heine, supra. 

Defendant's argument is that by stating in the information that this was his "3rd offense" instead of that he had 

two prior convictions, the State failed to establish the 

jurisdiction of the court. There is no basis for defendant's argument. First, the information itself clearly 

states the increased penalty to which defendant, having two 

prior convictions, is subject. This penalty is applicable 

only to one having two prior convictions. Section 31- 

2142 (d) , R.C.M. 1947. 

Second, the affidavit filed in support of the information clearly states that a review of defendant's driving 

record indicates "two previous driving while intoxicated 

convictions". Reference to the affidavit filed is clearly 

permissible. State v. Dunn (1970), 155 Mont. 319, 324, 472 

P.2d 288, 292. 

The information as to defendant's prior convictions, in 

combination with the supporting affidavit, is sufficient to 

give jurisdiction to the District Court. 
Issue 2 challenges the State's failure to produce 

evidence of the prior convictions at defendant's trial. 

Defendant argues that since no evidence was presented at 

trial of his prior convictions for driving while intoxicated, the State failed to establish the jurisdiction of 

the court. 

In section 31-2142, R.C.M. 1947, the statute defendant 

is accused of violating, the element of prior convictions is 

not contained in the statutory definition of the crime but 

is contained only in the separate penalty provisions. For a 

prior conviction to be a necessary element of a crime, the 

fact of prior convictions must be contained in the statutory 

definition of the crime rather than in the separate penalty 

provisions. State v. Loudermilk (1976), 221 Kan. 157, 557 

P.2d 1229, 1232. The State, upon trial, has only to prove 

the present offense. If they succeed, then the matter of the 

prior convictions is considered in setting the sentence. 

Loudermilk, 557 P.2d at 1233. As sentencing is to be imposed solely by the judge, section 95-2212, R.C.M. 1947, 

only he need be informed as to the prior convictions. 

An analogous procedure is used in sentencing repeat 

felony offenders: 

"(b) The notice and the charges of prior 

convictions contained therein shall not be made 

public nor in any manner be made known to the 

jury before the jury's verdict is returned upon 

the felony charge provided that if the defendant 

shall testify in his own behalf he shall nevertheless be subject to impeachment as provided 

in section 93-1901-11, R.C.M. 1947, as amended. 

"(c) If the accused is convicted upon the 

felony charge, the notice, together with proper 

proof of timely service, shall be filed with the 

court before the time fixed for sentence. The 

court shall then fix a time for hearing with at 

least three (3) days' notice to the accused. 
"(d) The hearing shall be held before the 

court alone. If the court finds any of the allegations of prior conviction true, the accused 

shall be sentenced under the provisions of section 94-4713." Section 95-1506, R.C.M. 1947. 

See also State v. Cooper (1971), 158 Mont. 102, 109, 489 

While the felony provision above does not deal with the 

jurisdiction of the court, it does indicate a legislative 

concern that evidence of prior convictions may prejudice the 

defendant in his present trial. See Rule 404(b), 3Iont.R. 

Evid. The same concern is applicable in driving while 

intoxicated cases and was shared by defendant here who asked 

that the reference to "3rd offense" be blocked out before 

the information was given to the jury. 

Defendant refers us to State v. Jones (1970), 204 Kan. 

719, 466 P.2d 283, 288, where the Kansas Supreme Court held 

that the venue of an offense is jurisdictional and must be 

proved to establish the jurisdiction of the court. The case 

is distinguishable. 

The jurisdiction of which the Kansas court is speaking 

is geographical, that is, where the crime took place. Thus, 

in proving the crime itself, the State must prove it occurred 

within the geographical jurisdiction of the court. The same 

is true in Montana as to geographical jurisdiction. State 

v. Smith (1920), 57 Mont. 563, 588, 190 P. 107, 116. 

The jurisdiction of the court in the present case, 

however, is dependent on the maximum sentence which can be 

made. Sections 95-301, 95-302, R.C.M. 1947. Proof of 

jurisdiction, therefore, is proper any time up until sentencing. 

Defendant challenges the State's failure to bring him 

to trial within statutory time limits in Issue 3. 
On January 3, 1977, defendant pleaded not guilty to the 

charge filed against him. On August 30, 1977, nearly eight 

months later, his trial commenced. Defendant argues this 

contravenes section 95-1703(2), R.C.M. 1947, requiring 

dismissal of any misdemeanor not brought to trial within six 

months after entry of plea. Neither the facts nor the 

statute support this contention. 

Section 95-1703(2), R.C.M. 1947, states: 

"(2) The court, unless good cause -- to the 

contrary is shown, must order the prosecution 

to be dismissed in the following cases: 

"If a defendant, after entry of plea upon 

a complaint, information, or indictment charging 

a misdemeanor, whose trial has --- not been postponed upon -- his application, is not brought to 

trial within six months." (Emphasis added.) 

Between January 3 and August 30, the following events 

transpired: 

January 3, 1977 Defendant enters plea. 

Trial set for January 13, 

1977 

January 6, 1977 Defendant moved to substitute Judge Olsen 

January 18, 1977 Judge Boyd called in Judge 

Lessley 

January 19, 1977 Judge Lessley assumed jurisdiction 

January 20, 1977 Defendant moved to dismiss 

for lack of jurisdiction 

February 2, 1977 Judge Lessley denied defendant's motion 

February 15, 1977 Defendant moved to suppress 

the results of the blood test; 

a hearing scheduled for February 24, 1977 was never held. 

(Prosecution contended defendant failed to schedule it, 

defense offered no reasons) 

Date Unavailable Parties stipulated that Judge 

Boyd could assume jurisdiction 
July 13, 1977 Defendant moved to dismiss for 

failure to be brought timely 

to trial under section 95- 

1703 (2) , R.C.M. 1947. Results 

of hearing are unavailable 

In addition, for an unspecified period of time the presiding judge was ill. In view of this record, we cannot say 

that there was not good cause for the delay or that defendant's trial was not postponed upon his application. Full 

consideration of defendant's motions, as well as the several 

substitutions of presiding judges, often at defendant's 

request, provide ample good cause for the delay occurring in 

this case. 

Defendant's final issue challenges the admissibility of 

the blood test in evidence because of a break in the chain 

of custody. 

Following the accident in the early morning hours of 

Saturday, November 6, defendant was taken to Community 

Hospital in Anaconda where a blood sample was taken for 

purposes of a blood alcohol test. This sample, placed in a 

container with the seal number noted as "1629", was given to 

the investigating sheriff's deputy who returned with it to 

the Deer Lodge County sheriff's department where he left it 

"on the desk in the office" to be mailed by the day shift 

the next morning. The specimen reached Helena on Tuesday, 

November 9, where the Department of Health analyst, in 

examining the seal prior to opening it, made a notation that 

the actual seal number was "1628" not "1629". The analysis, 

showing .24 percent blood alcohol, was returned under this 

number. 

Defendant argues this evidence is inadmissible for two 

reasons: (1) The originally noted seal number at the time 

of the drawing of the sample and the subsequently noted seal 
number under which the analysis was returned were not the 

same; and (2) the three day delay between the taking of the 

sample and its arrival in Helena, especially the lack of 

testimony as to the period while the sample was left on the 

desk in the sheriff's office, was an impermissible break in 

the chain of evidence. We feel both contentions were adequately answered at trial. 

First, as noted, upon receipt of the sample in the 

mail, the analyst employed by the State Department of Health 

examined the seal number and determined that it was erroneously noted as "1629" instead of "1628". He made a notation 

to this effect on the Specimen Collection-Laboratory Analysis 

form sent with the blood sample. During his testimony at 

trial, it was brought out that the lower left vertical line 

of the "8" on the stamped metal seal was very light so that 

to a cursory glance the last digit on the seal appeared to 

be a "9". The jury heard this testimony. Their conclusion 

that the discrepancy was adequately explained is entitled to 

great weight. We will not disturb it on the showing here. 

As to defendant's second contention, we find the evidently casual handling of the blood sample by the sheriff's 

deputies troubling, but in view of the other identification 

methods for the sample available, not cause enough for 

reversal. 

Defendant conjectures that between the time the sample 

was drawn early Saturday morning in Anaconda and its arrival 

Tuesday in the mail in Helena, it could have been tampered 

with. Nevertheless, the sample did arrive in Helena with 

its seal intact. The delay of three days is explained in 

part by the fact that the postal service does not operate on 

Sunday. 

Defendant correctly states: 
"It is rudimentary that a specimen taken from 

a human body for the purpose of analysis must 

be identified before such specimen or any analysis made for it attains standing as evidence of 

the condition of the person whose conduct is 

questioned. Without identification, there is 

no connection between the two ... ." McGowan v. 

City of Los Angeles (1950), 100 Cal.App.2d 386, 

223 P.2d 862, 21 ALR2d 1206, 1212. 

The State equally accurately replies: 

"It was not incumbent upon the state to prove 

that it could not have been tampered with. It 

was not necessary that all possibility of its 

having been tampered with should be excluded by 

affirmative testimony. [Citation omitted.] It was 

only necessary to identify the package and to make 

a prima facie showing that there has been no 

substantial change in it to warrant its introduction into evidence." State v. Wong Fong (1925) , 75 Mont. 81, 87, 241 P. 1072, 1074. 

In State v. Frates (1972), 160 Mont. 431, 434-35, 503 

P.2d 47, 49, the defendant challenged an almost identical 

procedure as was used here for collecting and transmitting 

evidence to a laboratory for analysis. After describing the 

chain of possession, we rejected the challenge: 

"The evidence establishes a chain of possession 

of the LSD tablets from defendant to the arresting 

officers; from there to tagging, marking and 

storing in the evidence vault at the Billings 

police department; the packaging and addressing 

of four of the tablets to the Bureau of Narcotics 

and Dangerous Drugs in San Francisco; the receipt 

of the four pills by this agency; their examination testing, and identification by chemist Chan 

of that agency; and, the return of the plastic 

container, the mailing box, and the mailing wrapper, bearing the handwriting of one of the Billings 

officers, to the Billings police department. Under 

such circumstances, the absence -- of the direct 

testimony -- of the person who actually mailed them 

-- to San Francisco is immaterial --- and in no sense 

breaks the chain of possession, precluding their 

admissibility - inevidence." (Emphasis added.) 

This decision controls here but with a caveat: the 

leaving of the sample "on the desk in the office" is far 

less acceptable than the "storing in the evidence vault" in 

Frates and increases the possibility of tampering. When 

combined with errors in evidence identification such as the 
misread seal number here, the possibility of a successful 

challenge to its admission likewise increases. Here, only 

the existence of an alternative means of identification, the 

seal number, saves the evidence from exclusion. 

Having examined each of the arguments of defendant, we 

find no basis for reversal. The judgment of the District 

Court is affirmed. 

Bd Justice 

We Concur: 

Chief Justice 

Justices