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State v. Robison1/9/1997
54 St.Rep. 61
Submitted on Briefs January 2, 1997.
Lyle D. Robison (Robison) appeals from a February 26, 1996, Yellowstone County jury verdict finding him guilty of driving under the influence of alcohol (DUI), a felony, in violation of § 61-8-401, MCA. We reverse and remand for a new trial.
The dispositive issue we address on appeal is whether the trial court properly instructed the jury as to the element of "actual physical control." We hold that it did not.
Background
On November 24, 1995, Robison was charged in the Thirteenth Judicial District Court with felony DUI arising out of an incident occurring in the early morning hours of November 21, 1995. Because we are remanding for a new trial, we will not address the facts in any detail, except to note that they were disputed and that, depending upon which witnesses the jury believed, it could have legitimately found Robison either guilty or not guilty.
Basically, it was the State's evidence that Robison was found in a Billings parking lot sitting in the driver's seat of an automobile with his body from the waist up slumped over into the passenger's seat and with his feet near the pedals. The automobile appeared to be locked, the motor was running and the lights were on. Robison was asleep or passed out and had to be aroused by the investigating officer. There was little doubt, as Robison readily concedes, that he was heavily intoxicated — "pig drunk," in his words.
Robison's defense, however, was that he had become intoxicated in a local bar; that he had become acquainted with Jim Rutledge (Rutledge) who offered to and was in the process of driving Robison to his hotel ; that Robison passed out in the car; and that he was awakened by the investigating officer. Robison maintained he was occupying the passenger's seat with his legs sprawled on the driver's side. Robison did not recall if the doors were locked but testified that the driver's door had a mechanical problem that, from the outside, made it difficult to open and caused it to appear that the door was locked.
Rutledge testified that he, too, was drunk, but he confirmed Robison's story, maintaining that he (Rutledge) was driving the automobile with Robison as the passenger. Rutledge stated that he had pulled into the parking lot to relieve himself. He saw the police car approaching, panicked, and ran off, leaving Robison asleep in the passenger's seat with the motor running, the lights on, the parking brake engaged and the driver's door unlocked.
Discussion
To convict Robison of DUI, the State must prove that he was (1) driving or in actual physical control of a vehicle; (2) upon the ways of this State open to the public; and(3) while under the influence of alcohol. Section 61-8-401, MCA. In this case, the only element in dispute is (1). Robison admits he was intoxicated in his automobile, but he denies that he was in actual physical control of his vehicle.
In State v. Ruona (1958), 133 Mont. 243, 321 P.2d 615, we explained that a person has actual physical control of a vehicle when:
has existing or present bodily restraint, directing influence, domination or regulation, of an automobile. . . .
Ruona, 321 P.2d at 618.
At Robison's trial the State offered a proposed instruction regarding the element of actual physical control as follows:
"Actual physical control" means that a person has existing or present bodily restraint, directing influence, dominion or regulation of an automobile. Movement of the vehicle is unnecessary.
The trial court, however, refused to give t
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