State v. Schwein

16 P.3d 373 (2000)

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Nature of the Case

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Facts

Around 11 p.m. Deputy Kane noticed a black 1995 Chevrolet Corvette parked in a parking lot. Although the car appeared to be unoccupied, its headlights were on. Kane stopped to investigate and found D asleep in the driver's seat, sitting upright with his head tilted toward his chest. D had given his keys to the bar owner earlier in the evening, he testified at trial that he had retrieved an extra set from the underside of his car. Kane found the headlights and dashlights on and the keys in the ignition. Kane detected the odor of alcohol on D's breath. When asked by Kane, D got out of the car. D refused to perform the field sobriety maneuvers requested and refused to take the preliminary breath test. D was arrested for driving under the influence of alcohol. D agreed to take the breath test at the Detention Facility. D's blood alcohol concentration was .229. P must prove that the defendant, while under the influence of alcohol, drove or was in actual physical control of a vehicle 'upon the ways of this state open to the public.' Section 61-8-401(1)(a), MCA. D moved for a directed verdict of acquittal in that there was no evidence that the parking space in question was a 'way of the state open to the public.' D contends that he owns Magic City Welding and that he was parked in front of his own business in a parking space which he leases; that he was asleep and had no intention of driving. The District Court concluded that the parking area between the saloon and the welding shop was a way open to the public and denied D's motion for a directed verdict. D was convicted and appealed.