Submitted on Briefs: January 18, 2017
FROM: District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. ADC 15-322 Honorable
Greg Pinski, Presiding Judge
Appellant: Julie Brown, Montana Legal Justice, Missoula,
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana Neil
Arnie Anthon, Great Falls City Attorney, Great Falls, Montana
Pursuant to Section I, Paragraph 3(c), 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
The Great Falls Municipal Court granted the City's motion
in limine to preclude John Kiser from presenting evidence
that he did not plan to drive his vehicle while under the
influence. Kiser appeals the Eighth Judicial District
Court's order affirming the Municipal Court's
decision. We affirm.
Kiser was charged with driving under the influence (DUI) in
November 2014 after a Great Falls police officer found Kiser
intoxicated and asleep in his parked vehicle with the engine
running. Prior to trial, the City filed a motion in limine
seeking to prohibit Kiser from arguing that he was not guilty
of DUI because he did not operate, nor did he intend to
operate, the vehicle while intoxicated. The Municipal
Court's order granting the City's motion addressed
only the intent issue. The court reasoned that Kiser's
intent was irrelevant, and it emphasized that the inquiry was
whether Kiser was in actual physical control of the vehicle.
During trial, Kiser testified that he had parked the car
before he began drinking. The jury found Kiser guilty.
Kiser appealed to the District Court and argued that the
Municipal Court deprived him of his constitutional right to
present a defense to the jury when it granted the City's
motion. The District Court affirmed.
When reviewing the decision of a district court on an appeal
from a municipal court, we review the case as if the appeal
had originally been filed in this Court, applying the
appropriate standard of review. City of Helena v.
Broadwater, 2014 MT 185, ¶ 8, 375 Mont. 450, 329
P.3d 589. A trial court's ruling on a motion in limine is
an evidentiary ruling; the trial court has broad discretion
in determining whether evidence is relevant and admissible.
State v. Lozon, 2012 MT 303, ¶ 9, 367 Mont.
424, 291 P.3d 1135. We will not disturb a court's
determination on the admissibility of evidence absent an
abuse of discretion. Lozon, ¶ 9.
On appeal, Kiser does not dispute that he was allowed to
testify that he parked the car prior to drinking. He also
acknowledges that DUI is a strict liability offense that does
not require proof of intent. Kiser nonetheless asserts that
he was deprived of his right to present a full defense
because he was not permitted to offer evidence regarding
whether he had driven or intended to drive his vehicle while
under the influence. He argues that such evidence is relevant
under the totality-of-the-circumstances test we adopted in
State v. Sommers, 2014 MT 315, 377 Mont. 203, 339
P.3d 65, because it would provide "context."
We are unpersuaded by Kiser's contentions. First, as
Kiser seems to acknowledge, DUI is "a strict liability
offense that does not require an intent element."
State v. Hudson, 2005 MT 142, ¶ 15, 327 Mont.
286, 114 P.3d 210 (citing State v. Ellenberg, 283
Mont. 136, 138-39, 938 P.2d 1376, 1377-78 (1997)). The
Municipal Court correctly concluded that evidence of
Kiser's intent could not be considered and was irrelevant
to whether he violated the statute.
Additionally, the statute under which Kiser was convicted
provides in pertinent part that it is illegal for an
intoxicated person "to drive or be in actual
physical control of a vehicle." Section 61-8-401(1)(a),
MCA (emphasis added). The statute's prohibition on actual
physical control "is based on a policy of deterring
intoxicated people from assuming physical control of a
vehicle, even if they never actually drive."
Sommers, ¶ 20 (citation and internal quotations
omitted) (emphasis added). In determining whether an
individual had actual physical control of a vehicle, the
factfinder may consider various "relevant factors"
under a totality-of-the-circumstances test. Sommers,
¶ 35. An individual is in actual physical control of a
vehicle when 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."
Sommers, ¶ 35. "An individual need not be
conscious to be in actual physical control."
Sommers, ¶ 35.
Here, the officer found Kiser asleep in the driver's seat
of his vehicle with the engine running. Contrary to his
arguments, whether Kiser drove or planned to drive while
intoxicated is not relevant to whether he was "in a
position to cause the vehicle to move" and was thus in
actual physical control of the vehicle. See Sommers,
¶ 35. Evidence that Kiser did not drive or that he did
not intend to drive was not a relevant consideration for the
factfinder. The Municipal Court thus did not abuse its