State v. Johnson, 85-268
Citation | 43 St.Rep. 1010,221 Mont. 503,719 P.2d 1248 |
Decision Date | 06 June 1986 |
Docket Number | No. 85-268,85-268 |
Parties | , 55 USLW 2051 STATE of Montana, Plaintiff and Respondent, v. Richard Duane JOHNSON, Defendant and Appellant. |
Court | United States State Supreme Court of Montana |
Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, Betty Wing, Deputy Co. Atty., for plaintiff and respondent.
Richard Duane Johnson (defendant) appeals the jury verdict and April 30, 1985, judgment of the Fourth Judicial District Court, County of Missoula, finding defendant guilty of driving or being in actual physical control of a motor vehicle upon the public ways of Montana while under the influence of alcohol. Johnson also appeals the sentence imposed. We affirm.
Defendant was found by a Missoula County Deputy Sheriff, Officer Peterson, at approximately 1:40 a.m., December 8, 1983, in a disabled car on Interstate 90 near East Missoula. Officer Peterson while discussing the predicament with defendant, noted that defendant appeared to be intoxicated. Officer Peterson requested that defendant perform several field sobriety tests. Defendant either refused or was unable to perform each test. Defendant was then arrested.
Thereafter, Officer Peterson took defendant to the patrol car and told defendant that he would be tape recording defendant's statements. After obtaining defendant's name, Officer Peterson advised defendant of his Miranda rights. Defendant acknowledged that he understood those rights, then asked if he had the right to "address somebody." The following conversation ensued:
A videotape of defendant attempting to perform several physical maneuvers at the request of Officer Peterson was taken upon arrival at the police station. Between maneuvers, defendant asked if he could call his attorney. After the maneuvers were completed and an implied consent form was read to defendant, defendant agreed to submit to a breathalyzer test. The result showed a blood-alcohol concentration of .197.
Next, Officer Peterson again turned on the videotape, advised defendant of his rights and asked if defendant wanted to answer some questions. Defendant replied, "I'd be obliged to, yes." This portion of the videotape was suppressed by the trial judge because of defendant's earlier request for an attorney.
Defendant was incarcerated overnight. On December 19, 1983, an information was filed in Missoula County District Court charging a third offense DUI (Count I) and failure to have current registration (Count II). Count II was subsequently dismissed. After several delays and waivers by defendant At trial, defendant provided a detailed account of his actions on the night of December 7 and the early morning hours of December 8, 1983. Defendant testified that he and his wife ate dinner at the Heidelhaus in Missoula, Montana. After dinner, defendant took his wife home and proceeded to The Edgewater for a night cap. Defendant claimed that he drank two, maybe three, drinks at The Edgewater with a friend. Then, realizing he was nearly out of gas and had no money, defendant contends he drove to a bar in East Missoula called "The Cabin" to cash a check. Apparently defendant had attempted to cash checks at The Edgewater before, to no avail. Defendant further testified that he purchased a double shot drink in a "go cup" at "The Cabin" to drink with his wife upon returning home.
of his right to a speedy trial, a jury trial was held February 25, 1985.
According to defendant's testimony, as he was entering the west-bound lane of I-90 from the on-ramp, the steering in his car locked. It was snowing heavily and the roads were icy. The car headed for the ditch, became high-centered on a snowbank and was thereby rendered immobile. After a short time, a passing motorist allegedly stopped to assist. Because of the motorist's intoxicated condition, defendant refused his offer of a ride but asked the man to phone defendant's wife and a towing service. Thereafter, defendant claims he decided to drink the double shot. Then, remembering some blackberry brandy left in the car from the previous hunting season, defendant alleges he drank approximately three-quarters of a pint bottle to try to keep warm. Defendant further claims not to have started or attempted to move the car after drinking the double shot.
Approximately an hour and a half after the car left the road, Officer Peterson appeared. A tow truck arrived shortly thereafter. Defendant's wife allegedly arrived at the scene, but after her husband had been transported to the police station.
The essence of defendant's story at trial was that he may have been intoxicated at the time Officer Peterson discovered him, but that he had not been "under the influence" at the time the car became stuck on the side of the road. Rather, his intoxication allegedly resulted from the alcohol consumed after the car left the road.
Officer Peterson also testified at trial. He stated that upon first approaching defendant's vehicle, the left front tire was in contact with the pavement; steam or smoke and a smell of burned rubber were emitting from that area. A search of defendant's car and the surrounding area uncovered no discarded beverage containers or brandy bottles. In addition, the inventory sheet signed and prepared by Sergeant Al Kimery, now deceased, failed to indicate the discovery of any alcohol container.
During a break in the trial, Officer Peterson returned to the location where defendant's vehicle was discovered, placed two sheriff's vehicles in the positions previously occupied by defendant's and Peterson's vehicles and took five photographs of the vehicles. The pictures were entered into evidence through Officer Peterson to show the location and angle of defendant's car.
Finally, during rebuttal, Officer Peterson was questioned, based on his experience and training in automobile mechanics, as to what, in his opinion, happens when the power steering on a vehicle fails. This testimony was elicited in response to testimony of defendant with respect to the alleged failure of his power steering mechanism and the performance of his car at that moment. Defendant had been qualified as an expert in the area because of his experience with power-steering failure in front and rear-wheel drive vehicles.
Following presentation of the evidence, the jury convicted defendant of driving or being in control of a motor vehicle on the public ways of Montana while under the influence of alcohol in violation of Sec. 61-8-401(1), MCA. He was sentenced to one year in the Missoula County Jail with all but fifteen days suspended, ordered to contribute $1,000 to the Missoula City/County Health Department's Drinking and Driving Prevention program and had his driver's On appeal, defendant raises the following issues:
license suspended "until he receives a probationary driver's license and then only for driving to and from work and on the job."
1. Whether the trial judge erred in refusing to grant defendant's motion to suppress his tape-recorded statement, the videotape of his actions and the results of his breathalyzer test?
2. Whether the trial judge erred in admitting into evidence the five photographs of the scene of the incident taken by Officer Peterson at the time of...
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