State v. Campbell

Respondent, MONTANA, v. ARTHUR Plaintiff OF STATE Appellant. CAMPBELL, Defendant ELDON No. 79-04. April 1980. Submitted Aug. Decided 615 P.2d 190. Randono, Falls, T.

Ralph argued, Great for defendant and ap- pellant. Gen., Helena, Larson,

Mike Greely, Atty. Richard A. argued, Gen., Helena, Smith, Havre, Asst. Ronald Atty. for County Atty., plaintiff respondent.

MR. HARRISON delivered the of the Court. opinion JUSTICE The initiated this action an information State by filing charging Arthur with one count of under the in- appellant alcohol, offense, fluence of sixth and one count of operating motor vehicle while an habitual offender. The informa- adjudged Court, tion was filed in the Twelfth District Hill County, Judicial W. two Honorable B. Thomas presiding. Approximately months after the the initial against Campbell, filing charges an District Court the State’s motion to file amended infor- granted mation a third count to the The added count adding charges. homicide. charged Campbell negligent entered of not to all three counts pleas guilty charged in the amended information. He also filed a motion to suppress certain identification testimony regarding testimony of a on motion to results blood test. Subsequent hearing the trial court ruled that the evidence was identification suppress, but that the blood test should not be admitted. admissible results The State moved to reopen suppression hearing presen- tation of evidence. The District the motion further Court granted and conducted another into the matter of the admission of hearing a blood test. After the the court entered hearing, supplemental the blood test results. order motion denying Campbell’s suppress Prior to trial on the moved to sever Count II charges, Campbell of the information the habitual traffic offender relating charge. motion. District Court denied the informa- came trial in the amended charges on found him of all charges. tion 1979. The May jury guilty the moved for a new trial or a notwithstanding judgment denied, verdict. The motions were and this followed. appeal

Ill 6, 1978, by drinking the Campbell began day Appellant June beers, twelve ten and somewhere between drinking a beer. After Moreno, Vincent and Manuel his two companions, and Reservoir to drive Fresno borrowed a automobile Plymouth go swimming. on west from Havre heading the Plymouth

Gus Keller observed west on was also headed High- Fresno. Keller 2 toward Highway that the his Keller testified The truck. Plymouth passed way also ob- as it Keller passed. his truck twice Plymouth “tapped” the west with its car from patrol approaching served highway later, be a saw what Seconds Keller appeared lights flashing. the ahead. of dust road puff along was be- in the distance

The car Keller observed patrol highway Patrolman was Hage pro- driven Patrolman Gordon Hage. ing by an to the accident. He was driv- east on scene ceeding Highway and with his 90 miles hour approximately per lights flashing ing saw was caused the collision of siren on. The of dust Keller puff and car. patrol Plymouth Hage’s lane near the edge The collision occurred in patrolman’s in across the front had turned Plymouth highway highway. his brakes applied car. Patrolman Hage oncoming patrol but was unable to avoid collision. There veered the right his of the attempted stop no indication that driver Plymouth the collision. vehicle before other

There were no witnesses to the collision than the occupants Wit- vehicles. None of them remember collision itself. nesseswho arrived the scene after the collision found Of- shortly ficer still inside vehicle. him from the car Hage helped just his They as it burst into flames. Vincent and Manuel were discov- Moreno ered some distance from the lying ground Plymouth. Camp- bell discovered the front seat vehicle his right so foot under the car’s his wedged body brake pedal angled that his head was on the seat near door. resting passenger All involved in the accident were parties severely injured. They in- were taken in Havre and treated for hospital immediately was An made to juries. attempt question Campbell while he was being treated. Patrolman Patrol Seyfert Highway attempted to talk with but was told Campbell nurse that it would be best if he did not do so. Patrolman Walston and Sheriff Glover Deputy did talk to were unable to Campbell. They coherent get any answers from him. did to some Campbell respond questions about the location of his and once his name in the pain spelled absence however, the officers. showed confusion and Generally, Campbell incoherence. Patrolman re- question

After these attempts Campbell, Seyfert be taken from the of the occupants blood quested samples blood taken from Campbell. A Plymouth. sample subsequently found that was not under ar- Campbell placed The District Court that he was not advised rest prior taking sample, for the of the blood and that he did taking sample, purpose not consent to the taking sample. and Manuel Moreno recovered from their ultimately

Campbell as a result of Patrolman remains injuries. Hage paralyzed injuries he suffered in the accident. Vincent Moreno did not recover from died he suffered. He injuries July trial the introduced the results of the blood alcohol test

At State test administered to after the accident. The Campbell shortly showed blood alcohol content .20 percent. Campbell’s to show was driv- also introduced evidence tending Campbell State when the accident occurred. Patrolman Harold Plymouth ing Wood testified Wood was called as an witness. Patrolman expert scene led him that his examination of the evidence the accident been when the Plymouth to conclude that had Campbell driving a respiratory collided with the car. patrol Sandy Bryant, therapy his from recovery injuries technician who treated Campbell during accident, about a conversation she over- suffered in the testified stated and Manuel Moreno. Ms. Bryant heard between Campbell to which did do that?” Camp- Moreno asked Campbell, “Why you hit him.” Ms. told me to see if I couldn’t Bryant bell “You replied, about a week after the accident the conversation took place said about the accident. men were talking she thought was not that he at trial indicating introduced evidence Jacobson, physicist, collided. Dr. Mark when the cars driving to believe of the accident led him his analysis testified that on from the car have been thrown would driver Plymouth he was not since driving This testimony implied impact. Further, Camp- Moreno and the car. Manuel was not thrown from at the time Vincent Moreno driving both testified that bell However, after the acci- made shortly in statement the accident. died, said Camp- Manuel Moreno and before Vincent Moreno dent the accident occurred. had been bell raises the issues following appeal: Did the District err in the results of admitting Camp- 1. Court test the accident into evidence? bell’s blood taken after shortly have to hear the of charge 2. Did the District Court jurisdiction while under the influence of alcohol? in to sever of the 3. Did the District Court err Count II refusing amended information from the other two counts? Is the verdict sufficient

4. evidence? jury’s supported by

The first issue raises three Campbell questions presents consideration. The first is whether question Campbell presented was unconscious or otherwise in a condition him in rendering of to consent to the of the blood capable refusing sample. taking This arises because was not under arrest question Campbell placed of blood is a before the the test. An arrest taking prerequisite of a blood if a is conscious and of sample defendant taking capable (1975), to consent to the test. v. 166 Mont. refusing Mangels State 190, 193, arrested, was not the test 531 P.2d 1313. Since Campbell if was conscious and results would be inadmissible here Campbell of consent. capable refusing does not contend that was unconscious Campbell State therefore, is

when the blood test was administered. The question, a whether was in condition him rendering incapable Campbell to The standard for to consent the refusing taking sample. a the whether is in condition determining party rendering party said, consent is set out in where we Mangels incapable refusing “. we that . . on only require be determined the basis incapacity best evidence which available to the officer reasonably 194, .. at .” Mont. 531 P.2d at 1315. that standard Applying we found Mangels, deter highway patrolman improperly was mined Mangels consent to the test incapable refusing confused, where Mangels appeared was from abrasions suffering accident, after an and the patrolman where did not talk to Mangels time before the any 166 Mont. at taking sample. 194, 531 P.2d in this case test The District Court applied Mangels to of- available determined that the best evidence reasonably him in a condition rendering ficers here indicated Campbell consent a blood test. The refusing following incapable this support at the suppression hearing introduced testified the District Court. Patrolman Seyfert determination by he accident scene he found Campbell ly- that when arrived stated Campbell’s on the front seat ing Plymouth. Seyfert and that moaning was covered with blood face the questions said did not Seyfert respond groaning. at- stated that .he he him. further Seyfert asked Patrolman at the a short time after to question hospital tempted accident, to see Camp- that it was best to try told him nurse bell. Camp- that he attempted question Walston stated

Patrolman the taking before shortly room at X-ray hospital bell outside the his Campbell that he asked of Walston testified the blood sample. but no meaningful response. other questions got name and several a as to his answer question that at one did Campbell He said point Walston said Campbell Patrolmen but another name. name gave to attempted the time he asked for “Dot” during swore and mainly him. question for about five Campbell questions asked Sheriff Glover

Deputy to the hospital. been taken Glover minutes after had from Campbell during that he one coherent answer only stated got a in him name gave the said Campbell Glover questioning.

115 However, the name Camp- his to a about name. question response not his own. bell gave in indicates the District Court was correct

This evidence to to the of consent incapable refusing determining Campbell the only under officers Mangels blood test the standard. In Mangels defendant, in of of the minor part had evidence confusion Here, of to the defendant. and did not juries, attempt question and in seriously injured great ficers observed that Campbell to advised a nurse that it would be better not to try were pain, by him, and him to get respond coherently ques talk to could with him. this evidence available they tions did talk Given officers, it determined that they appears properly of was in a condition him to consent rendering incapable refusing test. to blood is

The second this issue whether Montana’s question presented by consent of a statute allows the implied only taking sample an a valid if the is un from individual after arrest even individual or of to consent to test. conscious otherwise incapable refusing also to this question. In Mangels spoke interpreting implied statute, consent we held that an arrest was not a pre specifically if the tested was un requisite sample party taking or incapable conscious to the test. Mont. at consenting Thus, here, 531 P.2d 1314. if effect the rule set Mangels given out in that case of this question. disposes should be insofar

Campbell argues Mangels overruled as it holds an arrest is not a a blood prerequisite administering when a test is unconscious party incapable consenting this be over aspect test. contends should Mangels turned because statute language consent plain implied and the intent the statute as evidenced legislature enacting the title of the act. are the same These original arguments made in See Mont. at 531 P.2d originally Mangels. did not us then no more arguments persuade are con now. It is from a reading implied persuasive apparent is not a administering sent statute an arrest prerequisite 116 in- who unconscious or otherwise

blood test to a is party alcohol therefore, We, Campbell’s to the reject test. consenting capable the decision in Mangels. and affirm made argument this issue is whether The third question presented by searches prohibits Fourth Amendment unlawful protection against test incap a blood from an unconscious otherwise taking an arrest. able without person (1971),

We addressed this issue in State v. Deshner previously 188, 158 sam Mont. 489 P.2d 1290. In Deshner had a blood police taken he in an from the defendant after was involved ple shortly automobile accident. The defendant was unconscious when the taken. The did not arrest defendant before sample police the blood The defendant asserted the results requesting sample. the blood be his trial test should not admitted at manslaughter. He contended that blood without him taking sample placing under arrest constituted an unconstitutional The Court search. 192, found no 158 489 merit defendant’s Mont. at argument. at P.2d 1292. The Court stated the the blood taking sample these under circumstances because constitutionally proper have he was with an officer believed confronted might reasonably which would if situation in the evidence be emergency destroyed warrant, a and the used in time taken to procedures procure 193, were 158 Mont. 489 P.2d reasonable. taking does so attacks the in Deshner inference. He holding other which a contra jurisdictions cases from reach result by citing There a split authority ques- in Deshner. holding can be required tion of an arrest is before blood sample whether Annot., 325, 4 72 person. taken from an unconscious A.L.R.2d § However, 5.4(b) (1976); & Seizure at 342-344. 2 LaFave Search § since and at Court case decided Deshner United States Supreme we should Camp- one commentator’s indicate analysis reject least contra line of cases to Deshner. adopt bell’s argument 2000, (1973), 93 36 U.S. S.Ct. In v. Cupp Murphy went to a station police voluntarily L.Ed.2d defendant wife of his estranged death strangulation discuss the the defendant’s a dark spot noticed police authorities. The the defendant if asked police him. questioning while finger the of from his scrapings fingernails, take a -sample could they consent, a the Without scraping. to consent to defendant refused arrest, took the scraping the fingernail warrant or an police which evidence incriminating samples revealed samples. held The Court the at the defendant’s homicide trial. introduced the Fourth Amendment A rights. not violate defendant’s search did sum- opinion Blackmun’s concurring from Mr. quote Justice of marizes the the Court: holding an for without

“The a search evidence ar- today permits Court arrest where cause for an ex- probable rest but under circumstances isted, that officers to believe the where the had reasonable cause that was on the and where evidence respondent’s person, evidence 2006, 300, destructible . . .” U.S. 93 S.Ct. 36 412 highly at 908. L.Ed.2d

In and the of on the issue discussing Cupp of split authority is an whether an arrest absolute of taking a prerequisite an in from unconscious a drunk sample party driving situa- tion, LaFave, supra, states: Indeed,

“. . . the case the for of the blood sam- permitting taking cause defendant ple that the is intoxicated without upon probable is, first him if arresting than the case the anything, stronger in searches conducted and Franklin. the blood sample In Cupp case, cases, to those no as there is room whatsoever for opposed that the lack a arrest argument formal decrease somewhat may the chances that the will be for the destroyed, ‘evanescent’ character evidence is inherent in its nature and does de- is, motive pend of the defendant it. That upon any destroy fact, need for the blood arises out as stated in sample Schmerber v. 16 L.Ed.2d U.S. S.Ct. [384 California 908], ‘that the of alcohol blood begins percentage after an which is in diminish no shortly drinking stops,’ emergency affected whether not the defendant has been way formally ar- formalism, least, rested. It is the height suggest say this in order to meet a warrantless search cause probable first if the declare police is reasonable emergency only ‘would be defendant under arrest. In it hospitalized particular, a some ritual ridiculous to officer formal require police perform critically injured person of arrest over the unconscious of a body The claim that who to fatal automobile accident.’ party that prob- some measure assurance contrary ‘provides position blood- independent able cause is based considerations upon untenable, as need for a court to deter- alcohol test results’ is is to the test under present mine cause existed prior probable 5.4(B) at either 343-344. rule.” § The above LaFave’s comments summary Cupp there no se for war- requirement indicate arrest question per and the rantless search. That is consistent Deshner analysis that hold an line from other unconscious authority jurisdictions driver not be before a can be taken. need arrested blood sample and comments thus a solid basis for contin- provide LaFave’s Cupp therefore, to the We uing holding. reject Camp- adhere Deshner that the of contra to should argument bell’s line Deschner authority be and reaffirm the Deshner decision. adopted the three raises

Having analyzed questions separate issue, under the it is now necessary analysis first summarize to resolve of the District erred question the ultimate whether Court in the results of the blood test into evidence. Initially, admitting evidence shows the found that Campbell District Court properly to con- was in a condition that him of refusing rendered incapable when the was taken. sample sent taking sample for conscious in- requirement This means the absolute arrest consent established by dividuals who are of capable refusing Thus, does come statute and in not into Mangels play. explained here the blood test results not inadmissible automatically are because no arrest occurred.

Further, we re- repeats previously only arguments that Montana’s implied in his contention jected support Mangels can be before a blood requires sample statute an arrest consent a condi- an individual is unconscious otherwise in taken even if tak- refusing tion of to consent rendering party incapable were not ing sample. arguments persuasive Therefore, reaf- and no more so now. we in are presented Mangels not decision Montana’s consent statute does implied firm our can an absolute arrest before a blood requirment sample contain be taken from an unconscious or otherwise incapable person test results Montana’s hold the blood here are admissible under consent statute. simplified merit. We lacks Fourth Amendment claim Campbell’s

Finally, the deci- in Deshner. supports argument Cupp rejected Campbell’s Thus, basis of test the blood results are inadmissible sion. constitutional argument. Campbell’s shows raised questions by Campbell none summary This test. for to admit the results to the blood a basis refusing constitute Therefore, the results did not err admitting the District Court into evidence.

The second issue raised the District Campbell involves Court’s while jurisdiction hear intoxicated charges him. over brought against District Court Jurisdiction matters maximum that can depends criminal sentence be the crime. When the committing maximum sentence imposed increases to the District give Court because jurisdiction repeated offenses, does not prior offenses become an element proof must be at trial can be sen time until proved proved any Therefore, failure to introduce convic tencing. prior at trial does not the District Court deprive jurisdiction. tions (1978), 437-338. 184 Mont. P.2d State v. Nelson that the have Campbell contends here District did not Court over the jurisdiction D.W.I. him because charge brought against introduced no con State trial D.W.I. proving prior victions. This contention lacks merit under and does not Nelson filed against to dismiss the D.W.I. charge

constitute grounds Campbell. the severance of Count raises concerns

The third issue Campbell Count him from Counts I III. filed against II information ad- while with of the information charged II I of the information an habitual traffic offender. Count judged homicide charge. III is the negligent the D.W.I. Count charge, been should have II of the information contends Count 46-11-404(4), MCA. the other counts based section severed from part: section reads in pertinent That aby or the state is prejudiced that a defendant “If it appears separate . . . the court order may of related prosecutions joinder require.” other relief as justice may any trials ... provide offender charge habitual that joining asserts should, he his case and that the other two here charges prejudiced 46-11-404(4), therefore, under section been severance have granted MCA. oc of may have set out three basic kinds prejudice

We (1976), 170 v. of similar offenses. State Orsborn cur joinder 489, results The first kind prejudice Mont. 555 P.2d 509. abe charges a person facing multiple when the considers jury it him until tends to accumulate evidence against bad man and of prejudice The second something. type him guilty finds an informa on the first count in manifests itself when proof guilt a second count even though the defendant of tion is used to convict second at a trial on the be inadmissible separate would proof when the defendant occurs The third kind prejudice count. but not on on one charge on his own behalf wishes to testify Orsborn, at 515. 555 P.2d 170 Mont. another. been joinder whether there has prejudicial Determining because defendant incurred by prejudice involves weighing a joint from resulting economy the judicial trial joint against the sound discretion is left to balancing process trial. This discretion, an ap- of abuse of a showing Absent trial judge.

121 for of the trial its should not substitute judgment court pellate (5th 1979), 903, 597 F.2d 919. v. Cuesta Cir. court. United States a to defend balance between prejudice In striking of exert ant and considerations judicial economy, judicial economy (5th in favor of trials. United States v. Dohm joint strong pressure 1979), 535, basis The factors that provide Cir. 597 F.2d 540. of the ad joint expedition for the trials include predisposition dockets, of in the of trial justice, congestion ministration reduction time, of who of reduction burden on citizens judicial conservation sacrificed, and in terms of time and juries money serve witnesses who would other avoidance of of necessity recalling (9th once. States v. Cir. testify Brady wise have to United only 1121, 1128, denied, 1074, 1978), cert. 439 U.S. 99 S.Ct. 579 F.2d 849, 59 L.Ed.2d 41.

Further, of rests the burden showing prejudice 489, In show Orsborn, at at 515. 170 Mont. 555 P.2d defendant. some prove is not sufficient that defendant it ing prejudice, trials a of existsif acquittal separate that better chance prejudice Rather, was so show the prejudice the defendant must are held. 539; Dohm, at a fair 597 F.2d United as to trial. great prevent 824, 1973), (1st this F.2d Given Cir. 479 States v. Martinez the discretion and the afforded deference proof standard high judicial on balancing prejudice against court’s judgment trial criminal charges sever reversal of decision economy, 1127; v. Barrett United States seldom 579 F.2d Brady, granted. denied, 1091, 1106, (7th 1974), cert. 421 U.S. 505 F.2d Cir. 1951, 44 L.Ed.2d 450. 95 S.Ct. review, we must now consider the dif

Under this standard merits ferent kinds of listed in Orsborn determine the prejudice — The first prejudice prej severance claim. Campbell’s type defendant to be a bad from the jury believing udice resulting — found suffi man has seldom been charges because multiple Orsborn, P.2d 170 Mont. at 555 cient to warrant severance. fact, has been held that specifically prejudice In it 514-515. out to the as an held jury defendant from being incurred “habitual offender” is not alone sufficient to entitle the defendant (8th 1961), to separate trials. Punmill v. United States Cir. 34, 36; F.2d see also Federal Practice and Wright, Procedure 222§ at 437.

We the mere inclusion of an agree habitual of fender count in an information is insufficient re automatically severance of that quire from other It would be con charge charges. trary considerations of set out above to judicial economy re trials quire whenever one count of an information separate charges an habitual offender. That would be party being especially true in this case where all the stemmed from the same charges inci dent the main fact in issue as to all the was whether or charges was Campbell To severance would essen driving. grant require the same evidence about the same occurrence to be intro tially We, therefore, duced at two different trials. do not find the District Court abused its discretion in motion holding Campbell’s for severance should not have been because the con granted jury sidered him bad man.

The second kind of from is joinder present prejudice uses on one count in an information to con jury proof guilt vict a on another in the information defendant count even though have at a trial on would been inadmissible proof separate second count. No of this nature will be found when the prejudice at a and distinct. evidence trial Com presented joint simple 187, 264, 271; (1973), 307 monwealth v. Peterson 453 Pa. A.2d (D.C.Cir. 1964), 85, v. This rule is Drew United States 331 F.2d 91. on that when the are few and charges based the rationale there is no reason to assume the was jury evidence straightforward, and could not the relevant evidence United keep separate. confused (4th 1977), 1103, 1107-1108; 561 F.2d v. Cir. Peter States Jamar (2nd 271, son, States v. citing 307 A.2d United Lotsch Cir. 35, 36, denied, 622, 793, 1939), cert. 59 102 F.2d 307 U.S. S.Ct. (1st 1978), 1500. also States v. Luna Cir. 585 83 L.Ed. See United denied, 160, 1, 5, 58 L.Ed.2d cert. 439 U.S. F.2d S.Ct. straightforward. are few and evidence charges Here the at the The were trial. against Campbell three charges brought Only in all three whether Campbell main fact issue concerning at the the accident occurred. Proof time driving was an element all the crimes informa charged by Thus, to that would have been ad fact pertaining tion. been even if the trials on the different counts had separated. mitted trial, as The other evidence introduced at such proof Camp content and the fact that had been bell’s alcohol occurred, an at the time the accident habitual offender adjudged facts, was neither nor these we cannot voluminous Under complex. did not assume was confused and consider the rele only jury reaching vant evidence in verdict each count the informa Therefore, tion. we find of this nature insufficient to any prejudice hold the District abused its discretion in denying Court Campbell’s motion severance. when the defendant wants third occurs type prejudice on the others. on his on one but not charge own behalf

testify as to the in this case that he wanted testify stated of- not the habitual but charges, D.W.I. homicide negligent charge. fender Orsborn, have

As we out the federal courts con pointed only this where the offenseswere total sidered type prejudice alleged time, as to and evidence. 170 Mont. 555 separate place ly at also that a claim P.2d 515. It has been held defendant cannot when does this the state not the fact prejudice exploit type defendant takes the the defendant as cross-examining stand by want which the defendant did not to charge testify. about (D.C.Cir.1969), 1113, 1123. v. United States 433 F.2d Bradley fails either Here to demonstrate under Campbell prejudice stemmed one incident charges of these criteria. The all from and at same time and the evidence introduced occurred place, Further, take was did Campbell to all the similar. charges prove not the car the ac and testified that was when driving the stand he limited its ques- cident occurred. The State on cross-examination accident. on the to activities Campbell’s day tions mainly his habitual offender not about question Campbell The did State circumstances, do not find the District these we status. Under motion for Campbell’s discretion in denying Court abused its on this severance based type prejudice. not any did demonstrate Campbell

Under the above analysis, to the District Court require necessary the kinds prejudice contained in the information. on the charges order trials separate Therefore, to grant Camp- did not err in failing the District Court to sever. bell’s motion the sufficiency raises concerns

The final issue is the verdict. It duty jury’s of the evidence support to decide if the evidence presented to hear evidence jury brought against conviction charges support sufficient as to the decision of the jury not disturb This Court will defendant. contains substantial if the record of the evidence the sufficiency Deshner, decision. 158 Mont. evidence support P.2d was whether Campbell question main evidentiary

Here the on this ques occurred. The evidence was when the accident driving introduced at trial was conflicting. tion introduced was not driving assertion that he his support following (1) was driv that he occurred: His testimony when the accident Vincent Moreno (2) at trial that testimony Manuel Moreno’s ing; occurred; (3) the expert testimony the accident was when driving would have that the driver of the car Dr. Mark physicist Jacobson that Campbell with the evidence the car coupled been thrown from (4) to refute the testimony car on impact; in the remained Wood to show Campbell tending advanced Patrolman by theory occurred. the accident when driving to show evidence to the following jury presented State (1) state- the accident A happened: driving but before Vincent after the accident ment Manuel Moreno oc- when the accident died that Campbell Moreno curred; (2) Patrolman Harold testimony Highway expert car on in the of the car would have remained that the driver Wood found in that testimony Campbell the coupled impact, accident; (3) ad- to refute the theory the testimony car after the driving was not Campbell show tending vanced Dr. by Jacobson occurred; (4) con- Bryant Sandra testimony by when the accident “Why which asked Campbell, accident Moreno the cerning during to see “You told me that?” which Campbell replied, did do you if hit him.” I couldn’t evidence, the concluded conflicting jury with the

Presented evidence occurred. While when accident driving record, the conclusion is present the contrary prove and does support introduced the State substantial occurred. accident conclusion driving Therefore, we will not disturb verdict. jury’s

Affirmed. DALY

MR. CHIEF HASWELL MR. JUSTICE JUSTICE concur.

MR. SHEEHY concurring specially: JUSTICE concur in result foregoing. I want to out that who motor vehicle person operates

I point any of this is deemed to have con- upon the state public highways given sent to a chemical test of his blood if arrested officer by peace while intoxicating under influence of Section driving liquor. 61-8-402(1), who or other- MCA. A is unconscious who is person refusal, wise in a condition him is deemed rendering incapable 61-8-402(2), have his MCA. withdrawn consent. Section is not with- consent blood test considered Campbell’s implied the narrow set drawn here because fits within exceptions that an arrest is not where per- forth in Mangels, supra, necessary son as an section person unconscious under qualifies incapable 61-8-402(2), MCA. issue, District want the second position

I my regarding the in- while under driving Court’s of the offense of jurisdiction alcohol, clear. fluence be 61-8-401, MCA,

In section it is under the provided influence is unlawful as in section punishable provided 61-8-714(1), MCA. 61-8-714(1),

Section that a MCA first conviction of provides while intoxicated shall be a of not less driving punished fine by conviction, $ $500. than 100 or more than aOn second the driver is $300 $500 a fine of not less than or more than punished by which be added in the discretion of may the court imprisonment conviction, for 30 a third or days. subsequent On the driver is punished not less than 30 or more than 1 by imprisonment days discretion, to which be added in the court’s of not year, may fine $1,000. $500 less than or more than The difference in the for the penalties successive convictions becomes when one considers important whether the jurisdiction the District or the court Court justice applies. MCA, 3-5-302(1),

Under section the District is given Court in all and “all cases of original jurisdiction criminal cases felony court, misdemeanor not otherwise for.” The provided justice hand, other criminal of all misdemeanors given jurisdiction $500 a fine not ex- punishable exceeding imprisonment 3-10-303(1), 6 months or both. Section ceeding MCA. therefore, statutes, have no jurisdiction District Courts From convic- a first conviction or second of misdemeanor involving hand, the District intoxicated. the other tion of while On driving while of driving would have exclusive criminal jurisdiction Court Camp- 3 or more convictions. Since involving intoxicated charges intoxicated, a sixth offense of while bell was charged of this count. had exclusive jurisdiction the District Court dissents. MR. SHEA JUSTICE

Case Details

Case Name: State v. Campbell

Court Name: Montana Supreme Court

Date Published: Aug 5, 1980

Citation: 615 P.2d 190

Docket Number: 79-004

Court Abbreviation: Mont.