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State v. West2/25/1992
y other reasonably available means."
In this case, defense counsel had other reasonable means to obtain comparable evidence. At the first District Court trial, Jenrich testified that she had a copy of the statement that she had given to authorities. Defense counsel had approximately nine months before the start of the second trial to either interview the witness or request the county attorney to provide him with a copy of the statement. Neither the sheriff's office nor the county attorney had an original or copy of the statement in their possession. Jenrich testified that she had thrown away her copy of the statement. In addition, defense counsel failed to allege the exculpatory value of the evidence, or how the introduction of the written statement could have changed the result of the trial. We hold that the District Court did not err in denying defendant's motion in limine.
II
Whether the District Court erred when it refused Defendant's jury instruction defining a voluntary act.
Defense counsel proposed the following jury instruction:
"In order to prove the charge of Driving a Motor Vehicle While Under the Influence of Alcohol, the State must prove beyond a reasonable doubt that the offense was committed knowingly by such Defendant as a voluntary act.
"The word `act' means a thing done or that which is done. It includes any bodily movement, any form of communication and, where relevant, a failure or omission to take action. [Emphasis added.]"
In State v. McDole (1987), 226 Mont. 169, 175, 734 P.2d 683, 686, we held that " riving under the influence is an absolute liability offense not requiring the proof of the mental state by the State." Section 61-8-401(7), MCA (1989), states that " bsolute liability as provided in 45-2-104 will be imposed for a violation of this section."
The basic reason for not requiring the state to prove mental intent in DUI cases is that:
" ituations could arise in which defendants could not be convicted under the statute because they were too intoxicated to form the requisite intent. The paradoxical and absurd result would be that the more intoxicated the driver became the better his chances of avoiding liability under the statute."
McDole, 734 P.2d at 686 (quoting Erwin, Defense of Drunk Driving Cases, § 1.05 (1986).
The proposed jury instruction required the State to prove the defendant knowingly committed the offense. Absolute liability statutes do not require proof of a mental state. We hold the District Court did not err in refusing the jury instruction defining a voluntary act.
III
Whether there was sufficient foundation to introduce into evidence the results of an alcohol breath test.
When a defendant is charged with driving under the influence of alcohol, he is "entitled to any procedural safeguards in the Administrative Rules of Montana." State v. O'Brian (1989), 236 Mont. 227, 229, 770 P.2d 507, 508. Section 23.4.209 ARM (1989) required:
"(1) All models of breath-testing instruments used to administer testing according to section 61-8-405 MCA, must be approved by the division. The models operated by certified operators and/or operator supervisors prior to and on the effective date of this rule are deemed approved by the division.
"(2) Each breath-testing instrument must be inspected by the division, and the accuracy verified by the division, prior to installation of the instrument."
Defendant contends that the State failed to lay proper foundation proving that the intoxilyzer was properly tested and certified
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