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State v. Nelson11/30/2001
APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Nels Swandal, Judge presiding.
Submitted on Briefs: August 16, 2001
On September 28, 2000, a jury found Michael Nelson guilty of Driving or Being in Actual Physical Custody of a Motor Vehicle while under the influence of alcohol. Nelson appeals.
The following issue is dispositive:
Whether the District Court erred by failing to instruct the jury as to the defense of necessity?
BACKGROUND
Early in the morning of March 7, 2000, Michael Nelson was drinking at the Beaumont Club in Belgrade, Montana. The bartender, Mayrien French, testified that she served Nelson approximately four shots in about an hour and a half. Nelson's own testimony indicated that he had three or four drinks and may have been drunk. He stated that, "I was very tired and I had been drinking . . . I suppose the alcohol had some effect and being tired had some effect so I don't know which was more."
Shortly before closing time, around 1:45 a.m., French asked Nelson to leave the bar. A little while later, another bartender suggested to French that "if I were you, I'd call the cops. Somebody's sitting out in the parking lot." French called the police and asked them to drive by the Beaumont Club.
Belgrade Police Officers Chuck Sprague and Mark Stoico responded to French's call. When they arrived at the Beaumont Club, the officers found Nelson in the parking lot, slumped behind the wheel of his pickup truck. The vehicle's door was slightly ajar, its engine was running and music was blaring from its stereo. There was no evidence that Nelson had driven the truck before Officers Sprague and Stoico's arrival. The officers rapped on the door of his vehicle, but were unable to stir Nelson. Officer Sprague then opened the vehicle's door and aimed the beam of his flashlight in Nelson's face but was still unable to wake him. Officer Sprague testified that, as he opened the door, the strong odor of alcoholic beverages struck him. Only after turning down the music and repeatedly tapping Nelson on the arm was Officer Sprague able to rouse Nelson.
Upon waking, Nelson's eyes were bloodshot and glassy, his speech was slurred, and he was confused and difficult to understand. When the officers explained to him that the bartender was afraid to leave the bar while he was in the parking lot, Nelson responded, "What bartender?" He told the officers that he had not had anything to drink.
The officers asked Nelson to exit the vehicle so that they could perform a field sobriety test. Nelson got out of the truck but refused to undergo the test. He also declined to give blood or breath samples. The officers then arrested Nelson for driving under the influence of alcohol in violation of § 61-8-401, MCA.
On June 20, 2000, the Honorable Thomas Olson presided over Nelson's initial trial. Judge Olson instructed the jury that "actual physical control . . . does not include the use of a vehicle solely for a place of shelter or habitation." The jury in that trial was unable to reach a verdict. The matter was then retried before the Honorable Nels Swandal on September 28, 2000. Judge Swandal refused to include an instruction similar to Judge Olson's, "especially under the facts here." This time, the jury found Nelson guilty of Driving or Being in Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol. Nelson appeals.
STANDARD OF REVIEW
We review a district court's jury instructions in a criminal case to see whether the instructions, as a whole, fully and fairly in
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