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State v. Iverson

Supreme Court of Montana

February 20, 2018

STATE OF MONTANA, Plaintiff and Appellee,
DARA STARR IVERSON, Defendant and Appellant.

          Submitted on Briefs: January 31, 2018

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 16-020D Honorable David M. Ortley, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender; Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General; Helena, Montana Edward J. Corrigan, Flathead County Attorney, Alison E. Howard, Deputy County Attorney; Kalispell, Montana

          Ingrid Gustafson Justice.

         ¶1 Dara Starr Iverson (Iverson) appeals a jury verdict in the Eleventh Judicial District Court, Flathead County, convicting her of operating a noncommercial vehicle with alcohol concentration of 0.08 or more (DUI per se), a felony. We affirm in part and reverse in part.

         ¶2 We restate the issues on appeal as follows:

1. Whether Iverson's right to due process was violated by a jury instruction that instructed the jurors, when choosing between two competing interpretations of circumstantial evidence-one that supports guilt and one that supports innocence-to choose whichever interpretation was the "most reasonable?"
2. Did the District Court err in imposing cost of legal counsel on Iverson?
3. Did the District Court err in incorporating additional costs in the written judgment that were stricken in the oral pronouncement?


         ¶3 On January 12, 2016, Iverson was charged with felony driving under the influence, in violation of § 61-8-401, MCA. On March 18, 2016, the Information was amended to add an alternative offense of felony DUI per se in violation of § 61-8-406, MCA. Following a jury trial, Iverson was acquitted of felony DUI and convicted of felony DUI per se. Over Iverson's objection, the District Court instructed the jury, "When circumstantial evidence is susceptible to two interpretations, one that supports guilt and the other that supports innocence, the jury determines which is most reasonable" and denied Iverson's proposed circumstantial evidence instruction.

         ¶4 On January 9, 2016, Iverson was stopped for speeding. Upon interaction with Iverson, Officer Wardensky noted her speech to be slightly slurred and he observed her eyes to be red and glassy. He also noted she smelled of alcohol. Iverson admitted to drinking alcohol and smoking medical marijuana. Iverson admitted going to the Silver Bullet Bar for dinner and consuming a couple alcoholic drinks. After leaving that bar, Iverson also admitted to stopping at the Eagles for an additional alcoholic drink. She was on her way home from the Eagles when she was stopped. Officer Wardensky arrested Iverson for the offense of DUI. At the detention center, Iverson exhibited indications of impairment on standard field sobriety tests including raising her arms and losing her balance on the walk-and-turn test. Iverson refused to provide a breath sample. As such, Officer Wardensky obtained a search warrant for a blood draw. Approximately two hours after being stopped, Iverson's blood alcohol content (BAC) registered 0.107 plus or minus 0.008 grams of ethanol per 100 milliliters of whole blood.

         ¶5 Montana State Crime Lab forensic toxicologist Douglas Lancon testified regarding his testing of Iverson's blood sample explaining his finding of 0.107 reflected Iverson's BAC at the time of the blood draw. He explained initial effects of alcohol include impairment of judgment and euphoria and later effects include slurred speech and disruption of fine and gross motor skills which impair the ability to successfully complete field sobriety tests such as the walk-and-turn and one-leg stand. He explained an individual can begin to exhibit the effects of alcohol within 20 minutes or less of consumption. Further, depending on how much a person has already consumed, consumption of new alcohol can affect a person within minutes. Lancon described the uncertainty in attempting to calculate a person's BAC at a time prior to her blood draw, noting a variety of impacting factors such as the person's weight, whether she had eaten, when she consumed alcohol, what alcohol she consumed and how long had she consumed alcohol. Lancon ...

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