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State v. Hudson6/7/2005
Submitted on Briefs: May 11, 2005
A jury in the Thirteenth Judicial District Court, Yellowstone County, convicted the Appellant Cory Allyn Hudson (Hudson), on one count of driving while under the influence of alcohol, a felony. Hudson appeals his conviction. We affirm.
We address the following issues on appeal:
1. Whether the District Court's instruction to the jury regarding Hudson's actual physical control of the vehicle violated his due process rights.
2. Whether the District Court's instruction to the jury regarding the admissibility of Hudson's refusal to submit to field sobriety tests constitutes an improper comment on the evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Paramedics responded to a call in the early morning hours of August 17, 2003, regarding a person passed out in a vehicle that was parked the wrong way in a ditch along Highway 312 near Huntley, Montana. The paramedics arrived at the scene and found Hudson asleep in the driver's side of the vehicle, with the motor running, the window partially rolled down, and the headlights shining and the radio playing. Hudson, though asleep, remained upright in the driver's seat until paramedics reached through the window and contacted him. Hudson, once awakened, attempted to put the car in drive before the paramedics seized the keys and turned off the ignition.
The paramedics called for police assistance after observing that Hudson smelled of alcohol, slurred his speech, and swayed noticeably while standing. Officers arrived at the scene ten minutes later and questioned Hudson regarding his whereabouts over the course of the evening. Hudson admitted to drinking with a friend for most of the afternoon and evening, but denied driving the vehicle. He claimed instead that his friend had abandoned him alone with the car after an argument had arisen between the two. Hudson refused to perform field sobriety maneuvers upon the officers' requests and the officers arrested and later cited Hudson for being in actual physical control of a motor vehicle while under the influence of alcohol.
The State filed an Information on August 22, 2003, charging Hudson with driving while the under the influence of alcohol, a felony, in violation of § 61-8-401, MCA, that makes it unlawful for a person who is under the influence of alcohol to drive or be in "actual physical control of a vehicle" upon public roadways. Hudson admitted at trial that he remained intoxicated and asleep in the driver's seat with the keys in the ignition at the time police arrested him. Hudson testified, however, that he did not operate, and did not intend to operate, the vehicle at any time and stayed in the car merely to "sleep it off."
The parties submitted proposed jury instructions to the District Court at the conclusion of the trial. Hudson objected to the State's proposed instruction that defined "actual physical control" pursuant to § 61-8-401, MCA, as " person is in actual physical control of a motor vehicle if the person is not a passenger, and is in a position to, and had the ability to, operate the vehicle in question." Hudson objected to the instruction on the grounds that it misstated the law in Montana. Hudson argued instead for an instruction that permitted the jury to find whether the defendant drove to where the authorities found the vehicle and whether the defendant intended to drive. The court refused Hudson's proposed jury instruction. Hudson also objected to the State's proposed instruction regarding the admissibility of his refusal to submit to field sobriety tests on the grounds that it improperly commented on the evidence. The court adopted the State
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