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State v. Schwein12/28/2000
APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Susan P. Watters, Judge presiding.
Submitted on Briefs: November 9, 2000
Michael Schwein (Schwein) appeals from a jury verdict in the Thirteenth Judicial District Court, Yellowstone County, finding him guilty of driving under the influence of alcohol. We affirm the judgment of the District Court.
The following issues are raised on appeal:
. Did the District Court err in denying Schwein's motion to dismiss the DUI charge on the grounds that the State failed to prove that Schwein's vehicle was upon a way open to the public?
. Did the District Court err in denying Schwein's motion for a mistrial on the grounds that the District Court had informed the jury that Schwein was being prosecuted for felony DUI?
. Did the District Court err in admitting into evidence results of Schwein's breath test?
Factual Background
The facts in this case are not subject to dispute. Around 11 p.m. on March 13, 1999, Yellowstone County Deputy Sheriff Troy Kane (Kane) was driving down State Avenue in Billings when he noticed a black 1995 Chevrolet Corvette parked in the parking lot between the Moose Breath Saloon and Magic City Welding. Kane noticed that, although the car appeared to be unoccupied, its headlights were on. Kane stopped to investigate and found Schwein asleep in the driver's seat, sitting upright with his head tilted toward his chest. Although Schwein had given his keys to the bar owner earlier in the evening, he testified at trial that he had retrieved an extra set from the underside of his car. Kane arrived to find the headlights and dashlights on and the keys in the ignition.
Kane knocked on the car window and Schwein woke up, startled, grabbed for the ignition keys and attempted, but was unable, to start the car. Kane told Schwein to take the keys out of the ignition and hand them to him, which Schwein did. Kane asked Schwein for his license and registration and, in doing so Kane detected the odor of alcohol on Schwein's breath. When asked by Kane, Schwein got out of the car. He refused, however, to perform the field sobriety maneuvers requested and refused to take the preliminary breath test. Kane then arrested Schwein for driving under the influence of alcohol. When Schwein agreed to take the breath test at the Yellowstone County Detention Facility it indicated that his blood alcohol concentration was .229.
Discussion
. Did the District Court err in denying Schwein's motion to dismiss the DUI charge on the grounds that the State failed to prove that Schwein's vehicle was upon a way open to the public?
We review the District Court's conclusion that the parking space is a "way of the state open to the public" as one of law. Our review of a conclusion of law is plenary. State v. Brander (1996), 280 Mont. 148, 150, 930 P.2d 31, 33.
In order to establish the offense of driving under the influence of alcohol, the State must prove that the defendant, while under the influence of alcohol, drove or was in actual physical control of a vehicle "upon the ways of this state open to the public." Section 61-8-401(1)(a), MCA.
In the present case, Schwein moved for a directed verdict of acquittal arguing that there was no evidence that the parking space in question was a "way of the state open to the public."
Schwein contends that he owns Magic City Welding and that he was parked in front of his own business in a parking space which he leases; that he was asleep and had no intention of driving.
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