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State v. Hudson6/7/2005
's proposed instructions on "actual physical control" and Hudson's refusal to submit to field sobriety tests.
The jury returned a guilty verdict on one count of driving while under the influence of alcohol. The District Court sentenced Hudson to thirteen months in a community-based program for alcohol treatment, with eligibility for parole upon successful completion of the program. The court further sentenced Hudson to prison for a term of three years, all suspended, with conditions to run consecutively to the conditions of his treatment program. This appeal follows.
STANDARD OF REVIEW
We review a district court's jury instructions to determine whether the instructions, as a whole, fully and fairly instruct the jury on the applicable law. State v. Baker, 2000 MT 307, 26, 302 Mont. 408, 26, 15 P.3d 379, 26. The district court maintains broad discretion when instructing the jury. State v. Nelson, 2001 MT 236, 10, 307 Mont. 34, 10, 36 P.3d 405, 10. The instructions must prejudicially affect the defendant's substantial rights to constitute reversible error. State v. Goulet (1997), 283 Mont. 38, 41, 938 P.2d 1330, 1332.
DISCUSSION
Whether the District Court's instruction to the jury regarding Hudson's actual physical control of the vehicle violated his due process rights.
Hudson argues that the District Court erred when it instructed the jury that actual physical control of a vehicle only requires that the person remains in a position to and has the ability to operate the vehicle. Hudson maintains that the "actual physical control" instruction proposed by the State does not properly set out the law in Montana. Hudson invites the Court to modify the "actual physical control" instruction to address whether the trier of fact believed the person under the influence drove the vehicle to the location and whether the person intended to operate the vehicle. We decline the invitation.
To convict a person of driving under the influence , the State must prove that the defendant was: (1) driving or in actual physical control of a vehicle; (2) upon the ways of the state open to the public; and (3) while under the influence of alcohol. State v. Hagen (1997), 283 Mont. 156, 939 P.2d 994 (citing § 61-8-401, MCA). A person has "actual physical control" of a vehicle when he or she "has existing or present bodily restraint, directing influence, domination or regulation" of a vehicle. State v. Robison (1997), 281 Mont. 64, 66, 931 P.2d 706, 707 (citations omitted). We impose absolute liability for felony DUI convictions. State v. Ellenburg (1997), 283 Mont. 136, 938 P.2d 1376.
In Robison we rejected a court's jury instruction that expanded the definition of "actual physical control" to encompass any intoxicated passenger in the vehicle. Robison, 281 Mont. at 68, 931 P.2d at 708. We reasoned that the court's instruction misstated the law by including intoxicated passengers who were "physically inside an operational motor vehicle with the potential to operate or drive that motor vehicle" but who actually had never driven while intoxicated. Robison, 281 Mont. at 68, 931 P.2d at 708.
The District Court correctly instructed the jury regarding Hudson's "actual physical control" of the vehicle. The court's instruction proves identical to the Model Criminal Jury Instruction produced by the Criminal Jury Instruction Commission and accurately reflects the law as developed by judicial interpretation. See State v. Ruona (1958), 133 Mont. 243, 321 P.2d 615; State v. Taylor (1983), 203 Mont. 284, 661 P.2d 33; State v. Ryan (1987), 229 Mont. 7, 744 P.2d 1242; Turner v. State (1990), 244 Mont. 151, 795 P.2d 982. T
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