No. 85-559 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsROGER HANDY, 

Defendant and Appellant. 

APPEAL FROM: The District Court of Thirteenth Judicial District, 

In and for the County Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry Seiffert, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

Harold F. Hanser, County Attorney, Billings, Montana 

Donna K. Heffington, Deputy County Attorney, Billings 

Filed: 

Submitted on Briefs: Feb. 13, 1986 

Decided: June 4, 1986 

*@ 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The Yellowstone County District Court, sitting without a 

jury, found Roger Handy guilty under 5 61-8-401 (1) (a) , PICA, 

of driving a motor vehicle while under the influence of 

alcohol. Handy appeals raising one issue; i.e., whether the 

District Court erred in allowing the State to amend the 

charge to correct an inaccurate statutory reference to which 

appellant had objected prior to his conviction in the Justice 

Court. We affirm the conviction. 

In November 1984, a Montana Highway Patrol officer 

arrested the appellant and issued two traffic citations to 

him. One citation, not at issue here, charged appellant with 

reckless driving. The instant case arises out of the second 

citation which charged appellant with violating S 61-8-406, 

MCA, ". . . in that said defendant did knowingly or purposely 

or negligently drive or be in actual physical control of 

motor vehicle while under the influence of alcohol." The 

reference to that statute was incorrect. The language of the 

citation closely tracks the language of $ 61-8-401(1), MCA, 

which makes it unlawful ". . . for any person who is under 

the influence of: (a) alcohol to drive or be in actual 

physical control of a vehicle upon the ways of this state 

open to the public; . . . " However, the citation refers to S 

61-8-406, MCA, which provides: 

It is unlawful . . . for any person to 

drive or be in actual physical control of 

a vehicle upon the ways of this state 

open to the public while the alcohol 

concentration in his blood, breath, or 

urine is 0.10 or more. 

It is worth noting that the appellant refused to submit to a 

blood-alcohol test. 
In January 1985, the Yellowstone County Justice Court 

held a trial on appellant's two traffic citations. We have 

no record whatsoever of the Justice Court trial itself. 

However, both parties agree that following the State's 

case-in-chief, appellant moved to dismiss the DUI charge and 

argued there was an inconsistency between the statutory 

reference on the charging document and the evidence 

presented. Both parties also agree that the State, in 

response to appellant's motion to dismiss, moved to amend the 

charge by correcting the statutory reference. There is some 

confusion as to the resolution of the State's motion to 

amend. Appellant asserts that the motion to amend was 

denied. The Yellowstone County deputy county attorney filed 

one brief stating that the State did not recall whether the 

Justice Court granted, denied or ignored the motion to amend. 

In any event, the Justice Court found appellant guilty of 

"Drive or Be In Control of Motor Vehicle While Under the 

Influence of Alcohol. " The Justice Court also found 

appellant guilty of reckless driving. Appellant moved for 

judgment notwithstanding the verdict and asserted that the 

court failed to determine whether appellant was properly 

charged. The Justice Court denied appellant's motion. He 

appealed only the DUI charge to the District Court. 

Prior to trial in the District Court, the State again 

moved to amend the citation by changing the statutory 

reference from S 61-8-406, MCA, to § 61-8-401, MCA. The 

District Court granted the State's motion to amend. The 

court found that the error (the wrong statutory reference) in 

the DUI citation was a ". . . typographical error, the 

correction of which will not prejudice the defendant.. . .I' 

In October 1985, the District Court, sitting without a jury, 
held a trial de novo on the DUI charge and found appellant 

guilty of driving a motor vehicle while under the influence 

of alcohol. This appeal followed. 

The only issue on appeal, as stated by appellant, is 

whether the District Court erred in permitting the State to 

amend the charge. Here, the appellant was charged under the 

language of $ 61-8-401, MCA, (driving under the influence of 

alcohol) although the citation listed S 61-8-406, MCA 

(driving with a blood alcohol concentration of 0.10 or more). 

Both the Justice Court and the District Court, in finding 

appellant guilty, used the language "driving under the 

influence. l1 A conviction under S 61-8-406, MCA, would have 

been virtually impossible to obtain as appellant refused to 

submit to a blood-alcohol test. 

Appellant argues that the Justice Court found him guilty 

of a crime that he was not charged with. We disagree. This 

Court has repeatedly stated: 

"The general rule is that when the facts, 

acts and circumstances are set forth with 

sufficient certainty to constitute an 

offense, it is not a fatal defect that 

the complaint gives the offense an 

erroneous name." 

State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436, 

438; quoting State v. Schnell (1939), 107 Mont. 579, 88 ~.2d 

The Schnell Court, citing numerous jurisdictions, 

also stated: 

The name of the crime is controlled by 

the specific acts charged, and an 

erroneous name of the charge does not 

vitiate the complaint. 

Schnell, 88 P.2d at 22. 

In this case, the complaint used the language of 

$ 61-8-401, MCA, in charging appellant with driving under the 

influence of alcohol. The judgment of conviction also used 
that statutory language. Under the rule of Longneck and 

Schnell, an erroneous statutory reference will not invalidate 

the charge. The test for the validity of a complaint is 

whether a person of common understanding would know what was 

intended to be charged. State v. Kirkland (1979) , 184 Mont. 

229, 602 P.2d 586; citing State v. Dunn (1970), 155 Mont. 

319, 327, 472 P.2d 288, 294. The general rule in Montana is 

that a complaint is sufficient if it properly charges an 

offense in the statutory language describing the offense. 

State v. Hankins (Mont. 1984), 680 P.2d 958, 41 St.Rep. 762; 

citing State ex rel. Glantz v. District Court (1969), 154 

Mont. 132, 461 P.2d 193. The disputed complaint charged 

appella.nt using the statutory language and we hold that the 

complaint adequately described, and gave notice to appellant 

of, the offense he was subsequently convicted of. 

Appellant also argues that the District Court could not 

amend the charge to conform to the Justice Court conviction. 

Again we disagree. Section 46-11-403, MCA, provides, in 

pertinent pa.rt : 

(2) The court may permit an information 

to be amended as to form at any time 

before verdict or finding if no 

additional or different offense is 

charged and if the substantial rights of 

the defendant are not prejudiced. 

(3) No charge may be dismissed because 

of a formal defect which does not tend to 

prejudice a substantial right of the 

defendant. 

The formal defect of this charge, the incorrect statutory 

reference, did not prejudice a substantial right of 

appellant. Appellant was clearly apprised of the charge. 

Moreover, appellant knew that a conviction under the 

incorrect statutory reference (for driving with a 

blood-alcohol level of 0.10 or greater) was virtually 
impossible because no blood-alcohol test was taken. 

Appellant knew the charge against him and we hold that the 

District Court did not err in allowing the State to amend the 

charge and correct the statutory reference. 

Affirmed. 

\ 

We concur: