STATE OF MONTANA v. RAYMOND VANDENBOS

Cutbank, MT - Criminal defense lawyer represented defendant Raymond Vandenbos charged with driving under the influence (DUI), 4th or subsequent offense.

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 Montana

Reports.

¶2 Defendant and Appellant Raymond Vandenbos (Vandenbos) was arrested and

charged with driving under the influence (DUI), 4th or subsequent offense. On July 31,

2017, Montana Highway Patrol Trooper Terrance Melton was advised by Blackfeet Tribal

Police of a possible drunk driver on the Starr School Road and was provided the make,

color, and license plate number of the vehicle. The license plate number returned to a red

1981 Chevrolet pickup registered to Vandenbos. As Trooper Melton entered the Starr

School area, he observed the vehicle parked on the right side of the westbound lane. As he

drove past the vehicle, the driver’s side door was open and Vandenbos (whom he later

identified) was sitting in the driver’s seat. Trooper Melton turned on his overhead lights

and turned around, before pulling in behind the vehicle. Vandenbos exited the driver’s

side and, as instructed by Trooper Melton, walked to the rear of the truck. Trooper Melton

observed Vandenbos had bloodshot, watery eyes, slurred speech, a strong odor of alcohol

emanating from him, and was unsteady on his feet. Trooper Melton asked Vandenbos

where the keys to the vehicle were and Vandenbos removed them from his right front

pocket and handed them to Trooper Melton. Vandenbos refused to participate in any field

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sobriety tests or a blood test, but did agree to take a preliminary breath test. Trooper Melton

then obtained a search warrant for a blood draw, which showed a BAC of .199.

¶3 At trial, Vandenbos moved for directed verdict following the State’s case-in-chief,

asserting the State failed to prove Vandenbos was in “actual physical control” of the

vehicle. The District Court denied the motion and the jury ultimately found Vandenbos

guilty of the DUI offense. On June 6, 2018, the District Court then sentenced Vandenbos

to five years with the Montana Department of Corrections (DOC). On appeal, Vandenbos

asserts the District Court did not have sufficient evidence to determine beyond a reasonable

doubt that Vandenbos was in actual physical control of his vehicle while under the

influence of alcohol. The basis for this assertion is that there were other individuals who

could have potentially driven the vehicle, the vehicle was not running when Trooper

Melton encountered it, and Trooper Melton did not actually see Vandenbos driving the

vehicle. Vandenbos also contends the District Court erred by not crediting him with 311

days of pretrial incarceration.

¶4 We review de novo a question on the sufficiency of the evidence to determine

whether, after reviewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. State v. Sommers, 2014 MT 315, ¶ 15, 377 Mont. 203, 339 P.3d 65

(citing State v. Redlich, 2014 MT 55, ¶ 18, 374 Mont. 135, 321 P.3d 82).

¶5 Section 61-8-401(1)(a), MCA, provides that it is unlawful for “a person who is

under the influence of . . . alcohol to drive or be in actual physical control of a vehicle upon

the ways of this state open to the public[.]”

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¶6 Vandenbos’s argument he was not in possession of the vehicle is unpersuasive and

the District Court did not err in paying no heed to this argument. Trooper Melton received

a report of a possible drunk driver on the Starr School Road and was provided the make,

color, and license plate number of the vehicle. Shortly thereafter he located the exact

vehicle on Starr School Road with its occupants still in the vehicle. He witnessed

Vandenbos in the driver’s seat and immediately upon exiting the vehicle, Vandenbos had

the keys to the vehicle in his pocket. This combined with the direct and circumstantial

evidence of intoxication at the time of the arrest is reasonable and sufficient evidence to

support a conviction for DUI.

¶7 Vandenbos also contests the District Court’s failure to credit him for 311 days of

pretrial incarceration. Vandenbos was arrested on July 31, 2017. On August 16, 2017,

Vandenbos was charged by information with the DUI offense and simultaneously the court

issued an arrest warrant and set bond on the DUI offense at $20,000. The DUI offense was

a bailable offense. Vandenbos never posted any bond on this offense and thus was arguably

being held on the DUI offense regardless of whether he was also being held on a different

offense. The record contains a February 21, 2018 letter to Vandenbos from Kevin Olson,

administrator of DOC’s Probation and Parole Division, which states, in pertinent part:

In October of 2017 you filed a disciplinary appeal with Bureau Chief Lahiff.

She responded by denying your appeal and correctly pointing out that your

current placement in the Glacier County Detention Facility is due to your

pending Driving While Under the Influence criminal charges filed by the

Glacier County Attorney’s Office.

The Location Report contained in the record shows Vandenbos was placed on “Conditional

Release Hold” on July 31, 2017, when he was arrested on the DUI offense and that hold

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ended on August 3, 2017, and he was not further placed on a conditional release prior to

June 6, 2018, when he was sentenced on the DUI in this cause. This documentation clearly

indicates Vandenbos was being held only on the DUI charge and was no longer on a

conditional release hold as of August 3, 2017. Each day of incarceration on a bailable

offense must be credited against a defendant’s sentence when directly related to the offense

for which the sentence was imposed. Section 46-18-403(1), MCA; State v. Hornstein,

2010 MT 75, ¶¶ 14, 16, 356 Mont. 14, 229 P.3d 1206. Here, Vandenbos is thus entitled to

credit for the time he served between his arrest and sentencing. The District Court’s

determination of the number of days Vandenbos is entitled to credit for pretrial

incarceration is reversed and this matter is remanded to the District Court to provide

Vandenbos credit for pretrial incarceration in conformance with this Opinion.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

Affirmed in part, reversed in part, and remanded for further action consistent with

this Opinion.