                                                                                        January 21 2014


                                          DA 12-0756

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 19N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JASON RAND,

               Defendant and Appellant.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. DDC 12-235
                       Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wendy Holton, Attorney at Law; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                       Attorney General; Helena, Montana

                       Leo Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy
                       County Attorney; Helena, Montana



                                                   Submitted on Briefs: December 18, 2013
                                                              Decided: January 21, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Jason Rand (Rand) appeals his conviction at trial on one count of Driving under the

Influence Per Se (DUI Per Se). We affirm.

¶3     Lewis and Clark County Deputies (Deputies) discovered Rand sleeping in the driver’s

seat of his vehicle with the motor running and checked to see whether he needed assistance.

Upon waking Rand, Deputies found that he smelled strongly of alcohol, conducted field

sobriety tests, and eventually detained him for DUI. At all times during his arrest and trial,

Rand maintained that he did not intend to drive, but rather, to sleep in his running vehicle.

¶4     Before trial on one count of DUI Per Se, the State moved in limine to prohibit Rand

from arguing that he did not intend to drive the vehicle. Rand opposed that motion, citing to

Arizona v. Zaragoza, 209 P.3d 629 (Ariz. 2009) for the proposition that his intent to drive

was relevant to whether he was in “actual physical control” of his vehicle. Rand further

proposed a jury instruction that “actual physical control” of a motor vehicle must be

evaluated by considering a totality of the circumstances and whether the person’s current or

imminent control of the vehicle presented a real danger to himself or others. The District

Court rejected Rand’s instruction and granted the State’s motion in limine on the grounds

that Montana’s DUI statute is an absolute liability offense, and therefore, intent is irrelevant

to the commission of the crime. The jury later returned a verdict of guilty to the DUI Per Se

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charge. On appeal to this Court, Rand argues that the District Court should have instructed

the jury to consider the totality of the circumstances, including his intent, to determine

whether he was in “actual physical control” of his vehicle.

¶5     A trial court’s grant or denial of a motion in limine is an evidentiary ruling reviewed

for abuse of discretion. State v. Hicks, 2013 MT 50, ¶ 14, 369 Mont. 165, 296 P.3d 1149.

We review jury instructions for abuse of discretion. Christofferson v. City Great Falls, 2003

MT 189, ¶ 9, 316 Mont. 469, 74 P.3d 1021.

¶6     A person may be guilty of an offense without having a mental state of knowingly,

negligently or purposely when the statute defining the offense clearly indicates a legislative

purpose to impose absolute liability for the conduct described. Section 45-2-104, MCA.

“An absolute liability offense is one in which the actor’s intent is irrelevant since it is the act

itself which constitutes the offense.” State v. Huebner, 252 Mont. 184, 188, 827 P.2d 1260,

1263 (1992) (citing State v. McDole, 226 Mont. 169, 174, 734 P.2d 683, 686 (1987)). The

offense of driving under the influence is a strict liability offense and does not require an

intent element. State v. Hudson, 2005 MT 142, ¶ 15, 327 Mont. 286, 114 P.3d 210 (citing

State v. Ellenburg, 283 Mont. 136, 137, 938 P.2d 1376, 1377).

¶7     In light of this well-settled Montana law, the District Court properly found that

evidence of Rand’s intent was irrelevant to the trial, and properly refused Rand’s instruction

that his mental state should be considered in determining “actual physical control.” A driver

remains in actual physical control of a vehicle while asleep behind its steering wheel;

movement or intended movement is not required. Hudson, ¶ 16 (citing State v. Taylor, 203

Mont. 284, 287, 661 P.2d 33, 34 (1983)). That is exactly the case here. Rand exerted actual

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physical control over his car when he slept behind the wheel. Therefore, the District Court

properly exercised its discretion in refusing evidence of Rand’s intent and refusing his jury

instruction on “actual physical control.”

¶8     The District Court’s decision correctly applied well-settled Montana law. We have

determined to decide this case pursuant to Section I, Paragraph 3(d), of our Internal

Operating Rules, which provides for noncitable memorandum opinions. Affirmed.


                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BETH BAKER
/S/ LAURIE McKINNON




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