State v. Peplow
| Decision Date | 10 December 2001 |
| Docket Number | No. 99-648.,99-648. |
| Citation | 36 P.3d 922,2001 MT 253,307 Mont. 172 |
| Parties | STATE of Montana, Plaintiff/Respondent, v. Perry James PEPLOW, Defendant/Appellant. |
| Court | Montana Supreme Court |
David E. Stenerson, Stenerson Law Office, Hamilton, MT, For Appellant.
Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Montana Attorney General, Helena, MT; George H. Corn, Ravalli County Attorney, Hamilton, MT, For Respondent.
¶ 1 On May 25, 1999, a jury convicted Perry Peplow (Peplow) of five criminal offenses: driving under the influence of alcohol; driving with a suspended or revoked license; operating a motor vehicle without liability insurance; failing to report an accident involving property damage; and tampering with or fabricating physical evidence. Prior to the jury trial, Peplow sought to tender pleas of guilty on two of the five counts. The District Court ruled it was not required to accept them and proceeded to trial on all five counts. At the close of the State's case, Peplow made a motion for a directed verdict on the tampering with evidence count, which the District Court denied. Peplow appeals these two District Court rulings. We reverse.
¶ 2 We address the following issues:
¶ 3 November 18, 1998, at around 5:30 p.m., Peplow went to the Rustic Hut bar in Florence, Montana. Witnesses were unsure what Peplow had to drink at the Rustic Hut. While at the bar, Peplow and two friends decided to have dinner. There was conflicting testimony as to what Peplow drank at dinner; one witness testified Peplow drank milk, while another indicated he had an alcoholic beverage. After dinner, Peplow drove to a friend's house on Upper Woodchuck Road. Peplow had at least one drink at his friend's house and around 8:30 p.m., proceeded to drive toward his home located behind the Rustic Hut.
¶ 4 As Peplow was driving home and approaching a curve in the road, his truck went off the road into a field. His truck hit several fences and an irrigation vent, causing over $600.00 worth of damage. According to Peplow, he went off the road when he reached for a cigarette lighter that he had dropped on the floorboard. Peplow testified he injured his neck and head in the accident.
¶ 5 Following the accident, Peplow left his truck and began walking toward Florence. Around 9:00 p.m., Pastor Michael Metzger (Michael) and his wife, Deborah saw Peplow who, according to Michael, was having difficulty walking. Michael passed Peplow, but once he saw the truck off the side of the road, with its radiator steaming, he backed his vehicle up to where Peplow was walking in order to check on his condition. Upon reaching Peplow, Michael rolled down his window and asked Peplow if he was alright. Michael observed Peplow stagger and then reach towards Michael's arm in an effort to balance himself. Peplow missed Michael's arm and then grabbed for it again. Peplow answered that he was fine, and Michael observed Peplow's speech was slurred, but that he did not appear to be injured. Deborah testified Peplow's speech was very slow, very deliberate and calculated. Both Michael and Deborah testified they thought Peplow was intoxicated. At 9:11 p.m., Michael called 911, to report the accident. He described the vehicle, its license plate and his encounter with Peplow.
¶ 6 As Peplow continued walking to his residence, he was picked up and given a ride to his home. According to Peplow, he was hurting from the accident so he drank three double shots of whiskey and then walked his dog. At approximately 9:30 p.m., Peplow went to the Rustic Hut. Peplow told the bartender, Deborah Ross (Ross), that he wrecked his truck and had left it up on the hill, and then he ordered a beer. Ross testified that Peplow did not look injured in any way.
¶ 7 Montana Highway Patrol Officer Tom Hamilton (Hamilton) was dispatched to the accident scene. According to Hamilton, there were no brake marks at the accident scene, and in his opinion, the curve was obvious and not difficult to maneuver. Hamilton photographed the truck and surrounding area and examined the truck. Hamilton testified the truck cab smelled of beer and contained empty beer cans and bottles. Once Hamilton learned Peplow was the owner of the truck, he ran a check on Peplow's driver's status, which came back as revoked. Hamilton also noted there was no proof of insurance in the truck. Hamilton then tried to locate Peplow.
¶ 8 The dispatcher had information indicating Peplow lived behind the Rustic Hut, so Hamilton asked dispatch to call the bar and ask where Peplow lived. The dispatcher called the bar and talked to the bartender, Ross, who told the dispatcher Peplow was at the bar. After the call, Ross told Peplow that a law enforcement officer was coming to talk to him and she took away his half-empty beer. The dispatcher informed Hamilton that Peplow was at the Rustic Hut. Hamilton testified it takes approximately eight minutes to drive from the accident scene to the Rustic Hut, a distance of 4.8 miles.
¶ 9 Hamilton arrived at the Rustic Hut at approximately 9:50 p.m., and asked Peplow to step outside. Hamilton testified that Peplow's eyes were bloodshot, his speech was slurred, he had alcohol on his breath, and he staggered when he walked. Hamilton concluded Peplow was intoxicated. Hamilton performed the horizontal gaze nystagmus (HGN) test on Peplow, which according to Hamilton, indicated a high level of impairment. Peplow refused to perform any other field sobriety exercises. When Hamilton asked Peplow to take a preliminary breath test (PBT), Peplow agreed, stating that he would "blow drunk." The result of the PBT indicated Peplow's blood alcohol level (BAC) was .202.
¶ 10 Following the PBT test, Hamilton told Peplow that the bartender indicated Peplow had only half a beer, and Peplow then told the officer he drank three shots at home after the accident. During Hamilton's conversations with Peplow, Peplow admitted he did not have insurance. Peplow did not complain of any injuries, nor did Hamilton observe any injuries on him. However, upon arriving at the jail, Peplow complained of a sciatic nerve problem. At the jail, Hamilton read Peplow the implied consent form, and Peplow agreed to take a breathalyzer test. The result of the breathalyzer test indicated Peplow's BAC was .202.
¶ 11 An Information was filed on December 2, 1998, charging Peplow with the following offenses: driving under the influence, fourth offense; driving while license is suspended or revoked, third offense; operating a motor vehicle without liability insurance, third offense; failure to report an accident involving property damage; and tampering with or fabricating physical evidence, based on his consumption of alcoholic beverages after the accident.
¶ 12 A jury trial was set for May 24, 1999. Prior to trial, Peplow asked the court to allow him to tender guilty pleas on two of the five charges: driving with a revoked license and driving without insurance. The State objected, and argued the two charges were part of the res gestae, and were relevant in showing that Peplow's judgment was impaired. Peplow contended it would be highly prejudicial for the jury in a DUI trial to hear evidence that his license was already revoked and that prejudice to him outweighed the probative value to the State. He maintained the State had other witness testimony and evidence indicative of impairment. Peplow also argued that the two charges were not part of the res gestae, asserting that one can be ticketed for driving without insurance or without a license when not driving drunk, and vice versa.
¶ 13 The District Court concluded the two offenses were highly probative on the issue of impairment, and asked the parties if they were aware of any case law on this issue. Both the State and Peplow responded they knew of none. The court ruled in favor of the State, noting the two offenses were part of the res gestae, and proceeded to trial.
¶ 14 After the State rested, Peplow made a motion for a directed verdict concerning the charge of tampering with and fabricating physical evidence, and the District Court heard oral argument from both parties. Peplow argued that a person's BAC level does not fit the definition of a "record, document, or thing," as one of the required elements under § 45-7-207, MCA. Peplow also contended the State failed to present evidence that Peplow knew or had reason to believe that an official proceeding or an investigation was pending or about to be instituted. The State asserted that given the facts, it was reasonable for the jury to infer Peplow believed there would be an investigation. Finally, the State asserted that consuming alcohol does change or alter a "thing," that being a person's blood.
¶ 15 The trial court concluded that whether Peplow believed or should have believed there would be an investigation was a factual question for the jury. The court further concluded that the word "thing," as used in § 45-7-207, MCA, was broad enough to include one's blood alcohol level.
¶ 16 The jury returned verdicts of guilty on all counts, and Peplow was sentenced on June 21, 1999. Peplow now appeals the District Court's refusal to accept his guilty pleas on the driving while revoked and driving without insurance charges, and the District Court's denial of his motion for a directed verdict on the charge of tampering with physical evidence.
¶ 17 When this Court reviews a district court's conclusions of law regarding the application of a statute, our standard of...
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