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State v. Hudson6/7/2005
he court's jury instruction, therefore, does not suffer from the same defects as Robison as the court correctly communicated the appropriate law requiring that a person remain "in a position to, and have the ability to, operate the vehicle in question." Further, the offense of driving while under the influence remains a strict liability offense that does not require an intent element and we will not add one here. Ellenburg, 283 Mont. at 137, 938 P.2d at 1377.
The evidence at trial demonstrated that Hudson remained in a position to exert actual physical control over the vehicle. Paramedics found Hudson behind the wheel of the vehicle, with the motor running, the window partially rolled down, and the headlights and radio on. Hudson attempted to put the vehicle in drive when paramedics awoke him and Hudson himself testified that he remained in the driver's seat with the keys in the ignition when the paramedics approached. We held in Taylor, that a motorist remains in a position to regulate a vehicle while asleep behind the steering wheel of a vehicle stuck in a borrow pit. Taylor, 203 Mont. at 287, 661 P.2d at 34. Hudson satisfies this standard.
An instruction must be supported either by direct evidence or some logical inference from the evidence presented. State v. Miner (1976), 169 Mont. 260, 267, 546 P.2d 252, 256. Under the given instructions, if the jury believed Hudson's theory of the incident, they could have found in his favor. It remained the jury's duty to determine, however, which account of the incident, the State's or Hudson's, they believed more credible and worthy of belief. State v. Lewis (1976), 169 Mont. 290, 294, 546 P.2d 518, 520 (holding it remains the function of the trier of fact to determine the credibility of the witnesses and the weight to be given their testimony). No error occurs where the district court adequately instructed the jury. State v. Kirkaldie (1978), 179 Mont. 283, 293, 587 P.2d 1298, 1304. We conclude that the District Court fully and accurately instructed the jury and Hudson had ample opportunity to argue the merits of his defense. Accordingly, we determine that the District Court properly instructed the jury on the definition of "actual physical control."
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.
Hudson next argues that the District Court abused its discretion when it instructed the jury that evidence he refused to submit to field sobriety test remained admissible. Hudson contends that the court's jury instruction amounted to an improper comment on the evidence and should have been refused.
Evidence of a refusal to submit to field sobriety tests, including the breathalyzer, remains admissible in any criminal action or proceeding. City of Helena v. Barrett (1990), 245 Mont. 35, 37, 798 P.2d 544, 545 (citing § 61-8-404(2), MCA). Any person who operates a motor vehicle within the State shall be deemed to have given his implied consent to a chemical test to determine the alcohol content of his blood if arrested by a police officer on suspicion of driving under the influence of alcohol. City of Missoula v. Forest (1989), 236 Mont. 129, 133, 769 P.2d 699, 701-02.
The District Court correctly instructed the jury regarding the admissibility of Hudson's refusal to submit to the field sobriety tests. Hudson argues that evidence of his refusal tends to be only marginally probative as to the ultimate issue of guilt. Hudson cites to our decision in State v. Hall, 1999 MT 297, 297 Mont. 111, 991 P.2d 929, in which we suggested that the evidence of flight by a defend
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