                                                                                           May 19 2009


                                         DA 08-0207

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 168



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHAWN HOWARD WELLER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause No. CDC-2007-207
                      Honorable Thomas C. Honzel, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; Helena, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar,
                      Assistant Attorney General, Helena, Montana

                      Leo Gallagher, Lewis and Clark County Attorney; Helena, Montana



                                                  Submitted on Briefs: February 25, 2009

                                                             Decided: May 19, 2009


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     A jury in Montana’s First Judicial District, Lewis and Clark County, convicted

Shawn Howard Weller of driving under the influence on February 5, 2008. Weller raises

the following issue on appeal:

¶2     Did the District Court err by refusing to instruct the jury on the defense of

involuntary intoxication?

                                    BACKGROUND

¶3     At approximately 8 p.m., July 27, 2006, Montana Highway Patrol Trooper Gleich

initiated a traffic stop of Weller upon observing him drive his motorcycle twelve miles

per hour over the posted speed limit of 55 miles per hour. Weller smelled of alcohol and

admitted to consuming “a couple of beers.” Weller’s breath alcohol level was .115.

¶4     The State charged Weller with Driving under the Influence (DUI), a felony,

pursuant to § 61-8-401, MCA. At trial, Weller testified that on the day of his arrest he

had drunk two beers sometime after 5 p.m., and attended a party with friends that

evening. He told the jury that while at the party he chose to drink punch, which he

claimed to have been told was non-alcoholic. He testified:

       That the juice was spiked, and I didn’t know it. . . . It was when I drank the
       juice, that’s when . . . without me tasting it, the alcohol--the alcohol was
       there. I mean so that took me over the legal limit, by not by my choice but
       by my deception.

Weller requested the court to give an instruction to the jury which stated as follows:

       A person who is in an intoxicated condition is criminally responsible for his
       conduct and an intoxicated condition is not a defense to any offense and
       may not be taken into consideration in determining the existence of a
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          mental state which is an element of the offense unless the Defendant proves
          that he did not know it was an intoxicating substance when he consumed or
          otherwise ingesting [sic] the substance causing the condition.

The State objected and the court refused the proffered instruction because it did not apply

to an absolute liability offense such as DUI. Alternatively, the District Court ruled that,

in any event, Weller had not provided sufficient evidence to support such an instruction.

The jury convicted Weller and he appeals.

                                 STANDARD OF REVIEW

¶5        This Court reviews jury instructions to determine whether the district court fully

and fairly instructed the jury on the law applicable to the case. State v. Matz, 2006 MT

348, ¶ 13, 335 Mont. 201, 150 P.3d 367. A trial court has broad discretion to determine

the appropriate jury instructions. Matz, ¶ 13. Instructional errors which prejudice a

defendant’s substantial rights require reversal. Matz, ¶ 13.

                                        DISCUSSION

Did the District Court err by refusing to instruct the jury on the defense of involuntary
intoxication?

¶6        Weller argues the jury should have been instructed that involuntary or unknowing

intoxication is a defense to a DUI pursuant to § 45-2-203, MCA. The State responds that

involuntary intoxication can be a defense only to offenses that require proof of a mental

state, and DUI does not.

¶7        The instruction offered by Weller was premised upon § 45-2-203, MCA, which

states:



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       A person who is in an intoxicated condition is criminally responsible for his
       conduct and an intoxicated condition is not a defense to any offense and
       may not be taken into consideration in determining the existence of a
       mental state which is an element of the offense unless the defendant proves
       that he did not know that it was an intoxicating substance when he
       consumed, smoked, sniffed, injected, or otherwise ingested the substance
       causing the condition.

Section 45-2-203, MCA (emphasis added). This statute provides that involuntary

intoxication is “not a defense to any offense,” but that it may be taken into consideration

in determining the existence of a mental state in cases where a mental state is an element

of the offense. The Commission Comments explain that this provision “makes it clear

that intoxication is not a defense but is merely a fact which the jury can consider in

determining the existence of a particular mental state.” Section 45-2-203, MCA,

Criminal Law Commission Comments; see also State v. Stafford, 208 Mont. 324, 331-32,

678 P.2d 644, 648 (1984).

¶8     Section 61-8-401(7), MCA (2005), provides that “[a]bsolute liability as provided

in 45-2-1041 will be imposed for a violation of this section [governing DUI],” and we

have likewise previously explained that “driving under the influence is an absolute

liability offense not requiring the proof of a mental state.” State v. McDole, 226 Mont.

169, 175, 734 P.2d 683, 686 (1987). The State was not required to prove Weller’s mental

state and the jury was not required to determine his mental state in order to convict


1
 Section 45-2-104, MCA, provides: “Absolute liability. A person may be guilty of an offense
without having, as to each element of the offense, one of the mental states of knowingly,
negligently, or purposely only if the offense is punishable by a fine not exceeding $500 or the
statute defining the offense clearly indicates a legislative purpose to impose absolute liability for
the conduct described.”
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Weller of DUI. Consequently, consideration of involuntary intoxication under § 45-2-

203, MCA, was not necessary and the trial court did not abuse its discretion by refusing

to give Weller’s proposed instruction based upon this statute.

¶9     Affirmed.

                                                 /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON




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