No. 88-515

INTHE SUPREME COURT OF THE STATE OFMONTANA
1989

STATE OFMONTANA,
Plaintiffand Respondent,-vsELWYM LAWRENCE PETERSON,
Defendantand Appellant.

APPEAL FROM: DistrictCourtof the ThirteenthJudicial District, Inand forthe Countyof Carbon, TheHonorable RussellFillner, Judgepresiding.
COUNSEL OF RECORD:
For Appellant: GaryL. Spaeth and John H. Bohlman, RedLodge, Montana
For Respondent:
Hon. MarcRacicot, AttorneyGeneral, Helena, Montana KathySeeley, Asst. Atty. General, Helena MichaelAlterowitz, CountyAttorney; Kent E. Young, DeputyCountyAttorney, Red Lodge, Montana

Submittedon Briefs: Jan. 19, 1989
Decided: February 23, 1989Mr. 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 actualphysical 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 theweigh station located on 1-90 between Billings and the exit to Silesia. Themotorist notified GVW Officer Rudy Gerke that there was "a drunk in an old brown Dodge right behind him." Officer Gerke thenwent to the side of the highway to look for the car. Approximately oneminute later themotorist yelled "Herehe comes"and the officer saw what he identified as abrown Dodge coming athim. While the officerdid 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 thevehicle then veered and nearlywent 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. thatmorning,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 thenwent 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 vehiclewas 10-14696. Rasedupon Peterson's admission that he had been driving the vehicle and his failuretopass field sobriety tests, Officer Bourquinplaced Petersonunder arrest. Peterson was subsequently convicted in Justice Court. He appealed to the District Court which also found him guilty. He now appeals the judgmentof the District Court on the ground that sufficientevidence 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), 168Mont. 311, 313, 542P.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 inBillingswhen 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 towait 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 forwork. Peterson's second argument is that he was not physically in a position to actually control thevehicle 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 "actualphysical control"over thevehicle. Our examination of the record discloses several. conflictswith these arguments. First,Peterson admitted on two separate occasions thathewas 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'smotion for a new trial, the District Court examined the effect of the affidavit on the case. It found that Petersonwas notdiligent in obtainingRouton's presence for trial or in seekinga continuancewhen it was apparenthe would notbe available for trial. Further,this evidence was merely cumulative support of Peterson's contention at trial thathe 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 bebelieved from a consideration of all the evidence. Longacre, 542P.2d at 1222. Here the trial court had the testimony of three law enforcement officers regardinga description of the manner in which the vehicle was driven and where it came to rest. The officers testified that Peterson made separate admissions thathewas driving the vehicle and that the vehicle belonged to Peterson. The evidence showed that Petersonwas unable to pass field sobriety tests and had ingested both alcohol and prescription drugs which react to alcohol. We find such evidence constitutes substantial credibleevidence sufficient to support the judgment of the court. Regarding Peterson's claim in his brief thathewas 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 thekeys inhis 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. Statev. 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 toMontana precedent for when a person may be found tohave actualphysical controlof
a vehicle. See, State v. Ruona (1958), 133 Mont. 243, 331 P.2d 615; State

### v. Taylor (1983), 203Mont. 284, 661 P.2d 33.

### In Taylor, the defendant was found stuck in a barrow pit off a Billings street with thevehicle running and the lightson. There theCourt stated: Just as a motorist remains in a position to regulate avehiclewhile asleepbehind its steeringwheel, 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." Statev. Ruona, supra. Taylor, 661P.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. Itwould be ludicrous to rest the questionofwhether aperson is ina position to exercise control over a vehicle upon the luck of
a person as to the direction one falls when they "passout." 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, 666We disagree. The better policy is that aperson 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: