State v. James

416 Mont. 412

STATE OF MONTANA, Plaintiff and Appellee,

v.JOHNATHAN JAMES, Defendant and Appellant.

No DA 22-0131

Submitted on Briefs October 11, 2023

Decided May 28, 2024

2024 MT 109

416 Mont 412

___ P 3d ___

Appeal from the District Court of Lincoln County. Nineteenth Judicial District Court, Cause No. DC-21-53. Honorable Matthew J. Cuffe, Judge.

On appeal from a jury conviction of felony Driving Under the Influence and Driving While Suspended, it was not an abuse of discretion to allow the deputy sheriff to testify that defendant was in actual physical control of his vehicle and therefore subject to arrest as the State was not required to qualify the deputy sheriff as an expert, and the deputy sheriff offered lay opinion testimony, under Mont. R. Evid. 701, in response to a line of questioning directed at his perceptions as a deputy sheriff, and those perceptions formed the basis for his belief that probable caused existed to make the arrest. The deputy sheriff's testimony was rationally based on his perception of defendant at the time of the arrest, in addition to his knowledge of the factors that satisfy actual physical control.

Affirmed.

JUSTICE SHEA dissented, joined by JUSTICES GUSTAFSON and McKINNON.

For Appellant: Chad Wright, Appellate Defender, Joshua James Thornton, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena; Marcia Boris, Lincoln County Attorney, Libby.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court.

¶1 Johnathan James appeals a jury conviction of felony Driving Under the Influence (DUI), § 61-8-401(1)(a), MCA (recodified at § 61-8-1002(1)(a), MCA), and Driving While Suspended, § 61-5-212(1)(a)(i), MCA, from the Nineteenth Judicial District Court, Lincoln County. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court abuse its discretion by allowing the arresting officer to provide lay opinion testimony that James was in "actual physical control" of his vehicle?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 James was charged by information with felony DUI, fourth offense, and Driving While Suspended on June 1, 2021, following a May 23, 2021 arrest by Lincoln County Deputy Sheriff Derek Breiland. After a November 16-17 trial, the jury returned a unanimous verdict on both charges. Subsequently, James filed a sentencing memorandum, based on a presentence investigation report (PSI), claiming the charge should have been misdemeanor DUI, third offense. The District Court sentenced James according to the misdemeanor DUI provisions and Driving While Suspended.

¶4 On direct examination, during the State’s case-in-chief, Breiland testified that on May 23, 2021, he responded to a report from employees at a Town Pump in Libby, Montana, of a man sleeping in a vehicle parked at the gas pump. Breiland stated that when he arrived, he noticed the car was running and James was slumped over the center console. James was apparently asleep, with several empty containers of alcohol around him. After Breiland tapped on the window, and James rolled the window down, Breiland observed that James had bloodshot eyes, smelled of alcohol, and was slurring his speech. James did not have a driver’s license, and he reported to Breiland that it had been suspended for about five years.

¶5 Breiland further testified that James was unable to keep his balance during a field sobriety test, and that he ultimately refused to complete the test. After transporting James to the Lincoln County Detention Center, Breiland requested a breathalyzer test, which James also refused. Breiland then obtained a warrant for a blood draw and transported James to Cabinet Peaks Medical Center, where the blood draw was performed. James’ blood alcohol concentration was 0.322 percent.

¶6 On cross examination, defense counsel asked Breiland a series of questions generally intended to undermine Breiland’s observations. Counsel questioned whether Breiland could have been sure James was asleep, for example. He questioned whether James’ perception of how long he had been parked at the pump was relevant to an inquiry about his inebriation. Further, counsel implied James plausibly could have begun consuming alcohol after he was safely parked at the Town Pump, where he had pulled over because he was overcome by tiredness. Counsel additionally asked whether Breiland could have been certain the vehicle was running while James was parked at the pump.

¶7 During redirect examination, the following exchange occurred between the prosecutor and Breiland:

State: Deputy Breiland, [defense counsel] asked you a number of questions about the length of time [James] was there, whether he left his car, those types of questions, do you recall those?

Breiland: Yes.

State: And with regard to your investigation of somebody … being in actual physical control of a vehicle while under the influence, are those questions … relevant to your inquiry as to the actual physical control issue?

Breiland: No.

State: And at the time that you approached that vehicle and made contact with the Defendant, was the Defendant in actual physical control of that motor vehicle?

Breiland: Yes, he was.

Defense counsel objected, arguing the question called for a legal conclusion, invading the province of the jury. The District Court overruled the objection, and the jury ultimately convicted James of DUI and Driving While Suspended.

STANDARD OF REVIEW

¶8 [1] A district court has broad discretion in making determinations about the admissibility of evidence, which we review for an abuse of discretion. State v. Strizich, 2021 MT 306, ¶ 17, 406 Mont. 391, 499 P.3d 575 (citation omitted).

DISCUSSION

¶9 Section 61-8-401(1)(a), MCA (recodified at § 61-8-1002(1)(a), MCA), provided¹ that "[i]t is unlawful and punishable … for a person who is under the influence of [ ] alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public." (Emphasis added.) James argues the District Court abused its discretion by allowing Breiland to provide expert testimony as to whether James was in "actual physical control" of his vehicle, contending that it amounts to a legal conclusion. The State argues that Breiland was appropriately not qualified as an expert, and an officer may offer his lay opinion on an element of a crime when an appropriate foundation has been laid for his experience in such matters.

¶10 Did the District Court abuse its discretion by allowing the arresting officer to provide lay opinion testimony that James was in "actual physical control" of his vehicle?

¶11 [2] Lay opinion testimony is admissible if the testimony is given in the form of opinions or inferences and is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue." M. R. Evid. 701. "In applying Rule 701 we have held that police officers may testify to ‘matters as to which they have extensive experience and are properly qualified through training and experience.’ " State v. Frasure, 2004 MT 305, ¶ 17, 323 Mont. 479, 100 P.3d 1013 (quoting Onstad v. Payless Shoesource, 2000 MT 230, ¶ 40, 301 Mont. 259, 9 P.3d 38).

¶12 [3] We have previously recognized that whether an individual is intoxicated is common knowledge and permissible lay testimony. State v. Bradley, 262 Mont. 194, 198, 864 P.2d 787, 789 (1993); State v. Hardy, 185 Mont. 130, 134, 604 P.2d 792, 795 (1980); State v. Trueman, 34 Mont. 249, 85 P. 1024 (1906); see also Commission Comments, M. R. Evid. 701 ("Montana case law provided [an] additional exception to the traditional rule … intoxication.").

¶13 The factors that an officer weighs to determine whether probable cause exists to make a DUI arrest may likewise be satisfied based on common knowledge and observation. We have enumerated a non-exhaustive list of those factors:

(1) where in the vehicle the defendant was located;

(2) whether the ignition key was in the vehicle, and where the key was located;

(3) whether the engine was running;

(4) where the vehicle was parked and how it got there;

(5) whether the vehicle was disabled (broken down, mechanically inoperable, stuck, or otherwise immovable); and

(6) how easily the defendant could have cured the vehicle’s disability.

State v. Sommers, 2014 MT 315, ¶ 35, 377 Mont. 203, 339 P.3d 65. Breiland testified that officers are trained to look for these factors. It is well within the scope of an officer’s training and experience to make these observations when evaluating whether an intoxicated individual is in "actual physical control" of their vehicle and probable cause has formed for an arrest.

¶14 Our caselaw supports the admission of these observations as lay opinion testimony under M. R. Evid. 701. In Frasure, for example, we upheld a district court decision allowing an officer to provide his lay opinion that a defendant had the "intent to sell," even though it was a central element of her charge. Frasure, ¶ 18. We reasoned the State laid a "sufficient foundation for them to provide lay opinion testimony as to whether it was likely that [the defendant] possessed the drugs with intent to sell." Frasure, ¶ 18. Like Breiland here, the officer in Frasure did not testify as to the defendant’s guilt, but rather to observations informed by experience and training designed to ensure that officers make lawful arrests. Frasure, ¶ 18.²

¶15 The Dissent, ¶ 32, argues that our holdings in Frasure and Onstad³ stem from a misreading of Hislop v. Cady, where we affirmed that an officer with extensive experience in accident investigations may testify to the cause of a motor vehicle accident. 261 Mont. 243, 249-50, 862 P.2d 388, 392 (1993); see also Hart-Anderson v. Hauck, 239 Mont. 444, 448-49, 781 P.2d 1116, 1118-19 (1989) (holding the same). While the Dissent is correct that we characterized the officers’ testimony as expert testimony in Hisl...