DUI and the Legal Definition of "Driving" in Montana: Part 1 of 2
By: Jewel Christensen
On September 19, 1989, Ronald Turner drove his Suzuki motorcycle to the Sportsman’s Bar in Lewiston, Montana. After consuming a few beers, he decided to leave the bar. Due to his clutch being broken, he began pushing his motorcycle down the road towards his home. At no point did he straddle or start his motorcycle, however he did turn on the headlamps. Turner proceeded about one mile and eventually slipped on some gravel, tipping the bike over in the street. A passing motorist stopped to assist him, and once the bike was upright officers arrived on the scene. Turner was arrested for driving or actual physical control of a motor vehicle. The Supreme Court held that Turner was in actual physical control of his motorcycle and upheld his conviction of DUI, despite the motorcycle never being turned on and Turner never physically “driving” the bike. See Turner v. State, 244 Mont. 151, 795 P.2d 982 (1990).
When most Montanans think of the charge “driving under the influence”, they immediately have that magic number pop into their head; .08. It is common knowledge that if you are found to be driving under the influence of alcohol with a blood alcohol concentration (BAC) of .08 or greater, you can be charged with driving under the influence. §61-8-401, MCA. What many Montanans are unlikely to be aware of is that they could receive the same charge without actually driving their vehicle. There are three main elements of the driving under the influence statute in Montana that the prosecution must prove beyond a reasonable doubt: (1) that the defendant was driving or in actual physical control of a vehicle, (2) upon the ways of this state open to the public, and (3) while under the influence of alcohol and drugs. Id. All of these elements seem fairly basic and easy to digest, except for the term “actual physical control”. What does it mean to have actual physical control of a vehicle, and how is that different from driving?
The Montana Supreme Court traditionally defined actual physical control as a person having “existing or present bodily restraint, directing influence, domination or regulation of a vehicle.” State v. Hudson, 327 Mont. 286, 290, 114 P.3d 210, 212 (2005) (citing State v. Robinson, 281 Mont. 64, 66, 321 P.2d 706, 707). Within recent years, the Supreme Court has adopted a more simple definition of actual physical control. The Court has held that a person is in actual physical control of a vehicle when he or she “is not a passenger and is in a position to cause the vehicle to move or control the vehicle’s movement in some manner or direction” One does not need to be awake in order to be in actual physical control. City of Great Falls v. Kiser, 2017 MT 41N, ¶ 8, 387 Mont. 536, 390 P.3d 162 (citing State v. Sommers, 2014 MT 315, 377 Mont. 203, 339 P.3d 65).
When you revisit the story from the beginning, it becomes more understandable how a court could convict Mr. Turner of being in actual physical control of a vehicle while under the influence of alcohol. Although he was not physically riding the motorcycle, rather he was pushing it along the road, he was in a position to cause the vehicle to move. He was controlling the vehicle’s movement. In Montana, this is treated the same as driving under the influence of alcohol and all occupants of Montana should be mindful of this when driving in the State of Montana.
Emma Buescher is a skilled Montana DUI lawyer, with a criminal justice background and an office located in Downtown Bozeman. Emma offers free consultations on a limited basis and by appointment only. To schedule an appointment, call (406) 414-6581.