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Criminal Law Keyed to Gershowitz
State v. Schwein
Citation:
16 P.3d 373, 303 Mont. 450.Facts
Around 11 p.m. on March 13, 1999, Yellowstone County Deputy Sheriff Troy Kane was driving when he noticed a car in the parking lot between the Moose Breath Saloon and Magic City Welding. The defendant personally leased the shop building that the car was parked at. Kane noticed that, although the car appeared to be unoccupied, its headlights were on. Kane stopped to investigate and found the defendant asleep in the driver’s seat. The keys were in the ignition. However, the defendant had walked to his car from the bar he was drinking at.
Kane knocked on the car window and the defendant woke up, startled, grabbed for the ignition keys and attempted, but was unable, to start the car. Kane detected the odor of alcohol on the defendant’s breath. When asked by Kane, the defendant got out of the the car but refused to perform the field sobriety tests. Kane then arrested the defendant for driving under the influence of alcohol. When the defendant agreed to take the breath test at the Yellowstone County Detention Facility, his blood alcohol concentration was .229.
He was convicted of driving under the influence of alcohol. He appealed, arguing that his vehicle was not upon a way open to the public.
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Topic Resources
Topic Outline
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