No. 88-515 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsELWYM LAWRENCE PETERSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

The Honorable Russell Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary L. Spaeth and John H. Bohlman, Red Lodge, Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

Michael Alterowitz, County Attorney; Kent E. Young, 

Deputy County Attorney, Red Lodge, Montana 

Submitted on Briefs: Jan. 19, 1989 

Decided: February 23, 1989 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Appellant Elwyn Lawrence Peterson appeals the judgment 

of the Thirteenth Judicial District, Carbon County, finding 

him guilty of driving or being in actual physical control of 

a vehicle upon the ways of this state open to the public, in 

violation of S 61-8-401 (1) (a), MCA. 

Peterson was arrested on September 5, 1986, near 

Silesia, Montana. Shortly after 7:00 a.m. that morning, a 

motorist stopped at the weigh station located on 1-90 between 

Billings and the exit to Silesia. The motorist notified GVW 

Officer Rudy Gerke that there was "a drunk in an old brown 

Dodge right behind him." Officer Gerke then went to the side 

of the highway to look for the car. Approximately one minute 

later the motorist yelled "Here he comes" and the officer saw 

what he identified as a brown Dodge coming at him. While the 

officer did not get a good look at the driver, he noticed the 

driver appeared to be slumped over the steering wheel. 

Officer Gerke managed to see that the first four numbers of 

the license plate were 10-14, before he was forced to jump 

into the ditch, out of the way of the oncoming car. The 

officer observed the vehicle then veered and nearly went into 

the median before passing from the field of view. Officer 

Gerke then relayed the information he had to the Montana 

Highway Patrol. 

Shortly before 9:00 a.m. that morning, Mike Schmang, an 

adult probation officer, noticed a brown car in the ditch 

near Silesia. Officer Schmang notified the Carbon County 

Sheriff's Office of the accident and then went to examine the 

vehicle. Shortly thereafter, Montana Highway Patrol Officer 

Lance Bourquin responding to Officer Gerke's report of a 

drunk driver arrived at the scene. Officer Rourquin noted 

the license plate number on the vehicle was 10-14696. Rased 
upon Peterson's admission that he had been driving the 

vehicle and his failure to pass field sobriety tests, Officer 

Bourquin placed Peterson under arrest. 

Peterson was subsequently convicted in Justice Court. 

He appealed to the District Court which also found him 

guilty. He now appeals the judgment of the District Court on 

the ground that sufficient evidence did not exist to sustain 

his conviction for driving or being in actual physical 

control of a vehicle upon the ways of this state open to the 

public. 

Initially, we note our function on such an appeal is 

whether there is substantial credible evidence "to support 

the defendant's guilt beyond a reasonable doubt." State v. 

Lonqacre (1975), 168 Mont. 311, 313, 542 P.2d 1221, 1222. We 

find substantial credible evidence exists in this case to 

sustain the conviction. 

Peterson presents two arguments as to why we should 

find he was unable to exercise sufficient control over the 

vehicle to sustain his conviction. First, he was not the 

driver of the vehicle on the trip from Billings to Silesia, 

nor at the time it ran into the ditch. At trial Peterson 

testified that one Robert "Fuzzy" Routon was giving him a 

ride home from a party in Billings when a deer in the roadway 

forced them into the ditch. After the accident Peterson 

remained in the vehicle while Routon hitchhiked back to 

Billings to get help to pull the vehicle out of the ditch. 

Peterson then crawled from the back seat, where he had been 

sleeping, to the front seat to wait for Routon and went back 

to sleep. Peterson testified he was unable to obtain Routon 

to testify at trial, because Routon was out of the state 

looking for work. 

Peterson's second argument is that he was not 

physically in a position to actually control the vehicle when 
the officers arrived and arrested him. He contends the 

evidence shows the vehicle was off the highway, was turned 

off, and he was not behind the steering wheel or in a 

position to exert "actual physical control" over the vehicle. 

Our examination of the record discloses several. 

conflicts with these arguments. First, Peterson admitted on 

two separate occasions that he was the driver of the vehicle. 

Both Officers Schmang and Rourquin testified that Peterson 

admitted at the scene of the accident that he was the driver 

of the vehicle when it left the highway. Further, when 

Peterson was processed at the Sheriff's Office he again 

acknowledged he had been driving the vehicle. Both officers 

also testified they did not see any evidence at the scene 

that there had been anyone else there, prior to their 

arrival. 

The fact Peterson was able to obtain an affidavit from 

Routon after the completion of the trial, stating he was the 

driver of the vehicle at the time it left the highway, is not 

convincing. This assertion directly conflicted with 

Peterson's admission on two separate occasions before law 

enforcement officers that he was the driver. In denying the 

appel-lant's motion for a new trial, the District Court 

examined the effect of the affidavit on the case. It found 

that Peterson was not diligent in obtaining Routon's presence 

for trial or in seeking a continuance when it was apparent he 

would not be available for trial. Further, this evidence was 

merely cumulative support of Peterson's contention at trial 

that he was not the driver of the vehicle. When the evidence 

presented at trial is conflicting, 

[Ilt is the function of the trier of the 

facts, in this case the trial judge, to 

determine the credibility of the 

witnesses and the weight to be given 

their testimony and he may pick and 

choose which of the witnesses are to be 
believed from a consideration of all the 

evidence. 

Longacre, 542 P.2d at 1222. 

Here the trial court had the testimony of three law 

enforcement officers regarding a description of the manner in 

which the vehicle was driven and where it came to rest. The 

officers testified that Peterson made separate admissions 

that he was driving the vehicle and that the vehicle belonged 

to Peterson. The evidence showed that Peterson was unable to 

pass field sobriety tests and had ingested both alcohol and 

prescription drugs which react to alcohol. We find such 

evidence constitutes substantial credible evidence sufficient 

to support the judgment of the court. 

Regarding Peterson's claim in his brief that he was not 

in a position to exert "actual physical control" over the 

vehicle, we find the evidence was to the contrary. Upon 

approaching the vehicle, Officer Schmang testified he 

observed the appellant in the driver's seat, slumped over to 

the right, with his feet in the area of the pedals. The 

vehicle was not running, but Peterson himself testified he 

had the keys in his pocket. 

Peterson contends this Court should follow the 

decisions of other courts finding control over the vehicle is 

lacking where the defendant pulls off the travelled portion 

of the road and either turns off the vehicle or takes the 

keys out of the ignition. State v. Zavala (Ariz. 1983), 666 

P.2d 456; State v. Smelter (Wash.App. 1984), 674 P.2d 690; 

State 7. Bugger (Utah 1971), 483 P.2d 442. We decline to 

accept such precedent as controlling, particularly under the 

facts of this case. Rather, we look to Montana precedent for 

when a person may be found to have actual physical control of 

a vehicle. See, State v. Ruona (1958), 133 Mont. 243, 331 

P.2d 615; State v. Taylor (1983), 203 Mont. 284, 661 P.2d 33. 
In Taylor, the defendant was found stuck in a barrow pit off 

a Billings street with the vehicle running and the lights on. 

There the Court stated: 

Just as a motorist remains in a position 

to regulate a vehicle while asleep behind 

its steering wheel, so does he remain in 

a position to regulate a vehicle while 

asleep behind the steering wheel of a 

vehicle stuck in a borrow [sicl pit. He 

has not relinquished regulation of or 

control over the vehicle. It does not 

matter that the vehicle is incapable of 

moving. Movement of a vehicle is not 

required for "actual phvsical control." 

State v. Ruona, supra. 

Taylor, 661 P.2d at 34. 

Here Peterson was found in the driver's seat of a 

vehicle which had run off the road, with the keys to the 

vehicle in his pocket. In such a position he could regulate 

the movements of the vehicle. Appellant attempts to counter 

these findings by claiming he was lying down in the front 

seat and was not in a position to exercise "actual physical 

control." We find the evidence introduced at trial supports 

a finding that the appellant was in the driver's seat, but 

instead of slumping forward onto the steering wheel, he 

slumped to his right onto the middle of the seat. It would 

be ludicrous to rest the question of whether a person is in a 

position to exercise control over a vehicle upon the luck of 

a person as to the direction one falls when they "pass out." 

Appellant further asserts this Court should endorse a 

policy decision found in the Zavala case encouraging a 

person, who believing his driving impaired pulls completely 

off the highway, turns off the key and sleeps until sober 

before proceeding. Such a responsible action should not 

subject a person to the possibility of being arrested for 

being in control, according to the appellant. Zavala, 666 
We disagree. The better policy is that a person should 

ascertain his ability to drive before climbing behind the 

wheel and terrorizing the roadways of this state. Further, 

the evidence does not support a finding that this was the 

situation in the present case. Peterson acknowledged he had 

left a party in Billings around 7:00 a.m. to go home to 

Silesia, twenty-four miles away. Along the way, eyewitness 

testimony established whoever was driving the car was 

seriously impaired and a hazard to anyone on or near the 

roadway. After driving over twenty miles in an impaired 

state, the driver of the vehicle finally ended up stuck in 

the ditch after running over a delineator post and off the 

highway. There was no turnout or intersecting road at the 

point where the vehicle left the roadway. Fortunately, no 

one was injured. We agree with the State's brief that no 

public policy exists which rewards that kind of luck. 

The judgment of the District Court is 

\ 

Justice 

We concur: