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State v. Schwein12/28/2000
g place in which Schwein's car was located was clearly not "open to the public."
Those decisions relied on by the majority are all clearly distinguishable from the facts in this case. See State v. Weis (1997), 285 Mont. 41, 945 P.2d 900; Santee v. State (1994), 267 Mont. 304, 883 P.2d 829; and City of Billings v. Peete (1986), 224 Mont. 158, 729 P.2d 1268.
In all of the cases relied on by the majority, the defendant was actually operating his vehicle at the time of his arrest. Furthermore, the defendant in each of the prior three cases was in an area that actually was "open to the public." Finally, in none of the three prior cases was the defendant on his own private property.
The purpose of our laws prohibiting operating a motor vehicle under the influence of alcohol or drugs is to preserve public safety. The result in this case accomplishes just the opposite. Had Schwein gotten into his vehicle and driven home, there is a chance that he would have arrived without detection. However, it would not have been safe for him to do so.
Schwein did the safest thing apparent to him in his intoxicated condition and he was a threat to no one. In spite of that fact, the majority opinion now extends the reach of the law beyond what was ever intended. I hope that our streets and highways are not a little more dangerous as a result.
For these reasons I dissent from the majority opinion. I conclude that there was insufficient evidence to convict Michael Schwein of operating or being in control of his vehicle while on a public way and under the influence of alcohol.
TERRY N. TRIEWEILER
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