Date Rape Drugs and DUI in Montana

In general, criminal acts require two separate elements: 1) intention; and 2) action. Commiting an action against your will, or involuntarily, is usually not criminal. In Montana, this is codified at Section 45-2-202, MCA, which provides:

A material element of every offense is a voluntary act, which includes an omission to perform a duty that the law imposes on the offender and that the offender is physically capable of performing, except for deliberate homicide under 45–5–102(1)(b) for which there must be a voluntary act only as to the underlying felony. Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of the offender’s control of the thing for a sufficient time to have been able to terminate control.

For most criminal offenses, it is a defense that the act was done involuntarily, such as during a seizure. However, there is a class of offenses where this doesn’t apply. Absolute liability offenses require no showing of intent. In Montana, DUI is an absolute liability offense. Section 61-8-401(7) (“Absolute liability … will be imposed for a violation of this section.”). This means that it is no defense to a charge of DUI that you didn’t intend to drive drunk.

At least mostly.

In City of Missoula v. Paffhausen, the Montana Supreme Court examined the defense of automatism for the first time. Paffhausen argued that she had been given a date rape drug that caused her impairment.
Date Rape Drug and DUIPaffhuasen acknowledged that DUI is an absolute liability offense, and that she met two of the three elements of DUI: on a public street and impaired. However, she maintained, the date rape drug prevented her from voluntarily driving or being in actual physical control.The City filed a motion to prevent her from using the defense, arguing that it can only be asserted when a defendant’s mental state constitutes an element of the charged offense. Since DUI is absolute liability, the defense should not be available. The city court agreed and Paffhausen appealed all the way to the Montana Supreme Court.

After evaluating past Montana DUI caselaw in State v. Leprowse, the Montana Supreme Court held that absolute liability does not necessarily mean absolute liability. It found that allowing the automatism defense would meet certain other policies embodied in the Montana Code. The majority concluded that Paffhausen was entitled to raise automatism as an affirmative defense based on her claim of being subjected to a date rape drug. In order to prove her automatism defense, the Court went on, she will need to prove by admissible evidence that she did not act voluntarily when she drove her vehicle. Once she offers admissible evidence to this effect, it will be the State’s burden to prove (beyond a reasonable doubt) that she did act voluntarily.

City of Missoula v. Paffhausen, 2012 MT 265

Montana DUI and Actual Physical Control

Both Montana DUI statutes apply to a person who is operating a motor vehicle, or in actual physical control of a vehicle upon the ways of this state open to the public. Troublingly, the legislature failed to define what it meant by actual physical control. Obviously a person driving is in actual physical control. What about a person sitting behind the driver’s seat, in a running car? What if the car was not running? What about a person sleeping across the driver’s and passenger’s seat with the car off? What about a person in the back seat? Unfortunately, the statutes provide very little guidance so it has been left to the Montana Supreme Court to fashion a solution. And the current law on this matter would likely surprise most people.

In 1958, the Montana Supreme Court decided State v. Rouna. In that case, the Court defined several of the terms. “Actual” was defined as “existing in act or reality.” “Physical” was defined as “bodily.” And “control” was defined as “to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb subject…” The Court found that “actual physical control” meant “existing or present bodily restraint, directing influence, domination or regulation.” Using this definition it upheld a jury instruction which said:

You are instructed that if you believe beyond a reasonable doubt that at the time charged in this coplaint, the defendant, Dr. M.A. Ruona, was seated in his car, with motor running, with the intent then and there in him, the said defendant, to drive such vehicle on a public highway or street within the State of Montana, then the defendant had actual physical control of his vehicle as provided by statute. That it need not be shown that the vehicle had actually moved or was traveling on such highway or street within said state.

In State v. Robison (1997) the Court addressed the issue again. In that case, Robison was found in a parking lot sitting in the driver’s seat of an automobile with his body, from the waist up, slumped into the passenger seat and with his feet near the pedals. He was asleep or passed out and had to be woken up by the investigators. The car was locked, but the motor was running and the lights were on. In that case, the Montana Supreme Court found that Robison’s jury instructions were in error because they “impermissibly broadened the judicial definition of actual physical control to include, as a practical matter, every intoxicated occupant of a vehicle whether or not he or she was or ever had been operating the vehicle.”

In 2005, the Court confronted a situation involving a driver who was found asleep parked the wrong way in a ditch in State v. Hudson. When he was approached by paramedics, he attempted to put the vehicle in drive. He was in the driver’s seat, the motor was running, the window was rolled down part way, the radio was playing, and the lights were on. The Supreme Court upheld jury instructions which stated that “a person is in actual physical control of a motor vehicle if the person is not a passenger, and is in a position to, and had the ability to, operate the vehicle in question.”

In this line of cases, and others, Montana has drawn a relatively test for determining whether a drunk person in a vehicle can be charged with DUI. The problem is that there are legitimate reasons to be in a vehicle while intoxicated. For a person leaving a bar alone after closing time in the winter, a running car can mean the difference between life and death. Admittedly, this makes it more difficult for law enforcement officers to determine when a driver intends to drive and when they’re simply seeking shelter, but that is not an insurmountable task. In fact, it’s one that other states have already embraced.

Maryland, for example, acknowledges this in its case law. In Akinson v. State, the Maryland Court stated: We believe that, by using the term “actual physical control,” the legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters until they are sober enough to drive and those people who represent an imminent threat to the public by reason of their control of a vehicle. When the occupant is totally passive, has not in any way attempted to actively control the vehicle, and there is no reason to believe that the inebriated person is imminently going to control the vehicle in his or her condition, we do not believe that the legislature intended for criminal sanctions to apply.

Likewise, Arizona has established a number of factors for a court to consider when determining whether a person is in actual physical control of a vehicle. They include (but aren’t limited to): 1) Whether the vehicle was running; 2) Whether the ignition was on; 3) Where the ignition key was located; 4) Where and in what position the driver was found in the vehicle; 5) Whether the person was awake or asleep; 6) Whether the vehicle’s headlights were on; 7) Where the vehicle was stopped; 8) Whether the driver had voluntarily pulled off the road; 9) Time of day; 10) Weather conditions; 11) Whether the heater or air conditioner was on; 12) Whether the windows were up or down; and 13) Any explanation of the circumstances shown by the evidence.

At this point, Montana has not adopted the Arizona factors or taken the more inclusive view of vehicle occupancy of Maryland.