No. 13001 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1975

THE STATE OF MONTANA, Plaintiff and Respondent,
-vs

## - MARTHA ELLEN LONGACRE, Defendant and Appellant.
Appeal from: District Court of the Fourth JudicialDistrict, Honorable Jack LoGreen, Judge presiding. Counsel of Record: For Appellant: GilleV.Wooten argued, Missoula, Montana For Respondent: Hon. Robert LoWoodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, Assistant Attorney General,

argued, Helena, Montana Robert L. Deschamps, County Attorney, Missoula,

Montana

Submitted: November 12, 1975 Decided :

### NOV

## 19

## 1975 Filed:h?n~ 

### I ,.y.,.- -412Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This 

### is an appeal by defendant from a conviction of two misdemeanors (1) drivingwhile under the influence of intoxicating liquor, and (2) drivingwithout a valid driver's license. Defendant Martha Cooper Longacre was charged and convicted of those offenses in thejustice court of Hellgate Township before J. G. Lamoreaux, justice of the peace. She appealed and a trial de novo was had in the district court of Missoula County before the Hon. Jack L. Green, sittingwithout 

### a jury. Defendant was again convicted. She appeals from the district court conviction. The issue on appeal 

### is the sufficiency of the evidence to support the conviction. This issue focuses on whether defendant
orher 14year old daughter was driving. During the evening of September 12, 1973, defendant and her daughter were involved ina one car collision with an abutment
on thebridge across the Blackfoot River on Interstate 

### 90 about two miles east of Plissoula, Montana. When Highway Patrolman Dallas Atkins arrived at the accident scene, defendant was seated behind thewheel inthe driver's seatwith her daughter in thepassenger seat alongside. Both were injured. Terry Peterson, an ambulance 

## attendant testified that itwas hard to get defendant out of the vehicle as shewas wedged in. He testified defendant made some reference that thiswould do something toher driver's license. Defendant and her daughter were transported by ambulance tothe emergency room in St. Patrick's hospital inMissoula. According toHighway Patrolman Atkins, defendant told him atthe hospital that shewas the driver. He also testified, and the daughter admits, that the daughter also tollhim defendant was the driver. Later defendant and her daughter changed their statements and claimed the daughter was driving; that defendant was inno condition to drive;that they switched seats following the accident to protect the daughter from the expected wrath of her stepfather; and, to enable the daughter to get a driver's license on completion of her driver's training. Blood alcohol testswere taken of defendant which showed .37 alcohol by weight volume inher blood. Defendant admitted she
was highly intoxicated by reason of drinking liquor and taking 

### a prescription drug classified asa depressant and tranquilizer. Defendant also admitted she had no driver's license. The testimony of defendant and her daughter atthe trial that the daughter was driving simply created a conflict in the evidence that the trialcourt resolved against the defendant. It is the function of the trier of the facts, in this case the trialjudge, to determine the credibilityof thewitnesses and theweight tobe given their testimony and he may pick and choose which of the witnesses are tobe believed from a consideration of allthe evidence. Statev. Medicine Bull, 

### Jr., 152 Mont. 34, 445 P.2d 916. On appeal
we simply determine ifthere issubstantial evidence to support the defendant's guiltbeyond a reasonable doubt. Statev. Stoddard, 147 Mont. 402, 412, P.2d 827; State v. White, 146 Mont. 226, 405 P.2d 761.Here the physical facts atthe accident scene, the testimony of the highway patrolman and the ambulance attendant, the admissions of defendant and her daughter, and theblood alcohol test constitute substantial and sufficient evidence to support the conviction of defendant on both charges. The judgment of the district court is affirmed.

# ............................ Justices.