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State v. West2/25/1992
evel."
In closing, The State made the following argument:
"He was at 2.7, 2.7 times .1. So you know, you have powerful evidence of intoxication which is based on scientific results of tests of the air that the defendant breathed. It's incontrovertible evidence.
"MR. CARSTENSEN: I object. I don't believe that's the law in Montana.
"THE COURT: Sustained. The jury will disregard the last statement of Mr. Forsythe that this is incontrovertible. You do have the instructions and. . . .
"Obviously, when your ability to operate a motor vehicle is diminished or less than what it would be if you were totally sober, the State and the citizens of this state have an interest that you do not operate the vehicle out in public ways in that condition.
"MR. CARSTENSEN: I object, Your Honor. I don't believe that's the state of the law in Montana.
"THE COURT: Well, the state of the law in Montana is stated in the instructions. And the jury is cautioned not to accept what either counsel says the law is, but to take the law from the instructions."
In addition, defendant alleges that a statement made by Officer Moe in the video tape contained a reference that defendant's alcohol breath test was over the legal limit.
We have previously stated that when counsel opposes the admission of evidence and the District Court sustains counsel's objection, strikes the evidence from the record, and instructs the jury to disregard the evidence, the error that is committed is presumed cured. State v. Staat (Mont. 1991), [248 Mont. 291, ] 822 P.2d 643, 648, 48 St.Rep 1041, 1044 (Staat II). The District Court sustained defendant's objections relating to any possible references to presumptions of intoxication and admonished the jury. The District Court also gave the following jury instruction which read, in part:
"If the defendant has an alcohol concentration in his blood of 0.10 or more at the time of the alleged offense, you are permitted, but not required to infer that he was under the influence of alcohol. It is your exclusive provence to determine whether the facts and circumstances shown by the evidence warrant the inference to be drawn by you." In Leverette, 799 P.2d at 125, we held that:
"The solution to the due process problems of using presumptions in jury charges is not, as was attempted in this case, to make them burden-of-production shifting presumptions. The solution is to make the presumptions unambiguously permissive."
The above instruction is consistent with our holding in Leverette that presumptions or inferences must be "unambiguously permissive." We hold that any error made by the State's references relating to the presumption of alcohol was cured by the District Court's admonishment of the jury and the reading of the above instruction.
With regard to the statement Officer Moe made in the video tape referring to defendant's breath exceeding the legal limit, there was no objection made to the playing of the video in front of the jury. "Failure to make a timely objection during trial constitutes a waiver of the objection. . . ." Section 46-20-104, MCA (1989). We hold that there was no error in admitting the video tape.
V
Whether the Justice Court had original jurisdiction because the penalty imposed for a DUI conviction exceeds the definition of a misdemeanor.
Defendant argues that because he was fined $300, assessed costs, given a six month suspended sentence, and was required to attend an alcohol treatment program which has no particular time limit, his potential sentence could exceed one year.
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