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State v. Hudson6/7/2005
ant more properly should be left for counsel to argue to the jury rather than for the court to instruct the jury. Hall, 46. We conclude, however, that Hall proves inapposite here as a statute specifically provides that evidence of refusal remains admissible. Section 61-8-404(2), MCA. Moreover, the court instructed the jury that evidence of refusal simply constitutes another factor to be considered along with all other relevant, competent evidence in determining whether a person remains guilty. The District Court's jury instruction mirrored the language of the statute and thus correctly set forth the law applicable to the case.
It remains the function of the trier of fact to determine the credibility of the witnesses and the weight to be given their testimony. State v. Brady, 2000 MT 282, 28, 302 Mont. 174, 28, 13 P.3d 941, 28. Once again, no error occurs where the district court adequately instructed the jury. Kirkaldie, 179 Mont. at 293, 587 P.2d at 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. We determine that the District Court properly instructed the jury on the admissibility of Hudson's refusal to submit to field sobriety tests.
Affirmed.
BRIAN MORRIS
We Concur:
KARLA M. GRAY
JOHN WARNER
W. WILLIAM LEAPHART
JIM RICE
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