STATE v SHARP

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No. 84-452 I N THE SUPREME COURT O THE STATE O PO T P A F F l NAJ 1985 STATE O M Z T N , F OJA A P l a i n t i f f and R e s p o n d e n t , -vsWESLEY SHARP, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f L i n c o l n , The H o n o r a b l e Douglas H a r k i n , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For A p p e l l a n t : R e l l e r & German; Ann C. German, L i b b y , Montana F o r Respondent: Eon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , Montana S u s a n Loehn, Deputy County A t t y . , L i b b y , Montana S u b m i t t e d on B r i e f s : Decided: Clerk - Play 3 , July 8, 1985 1985 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. from a Defendant appeals violating section 61-8-406, MCA. judgment of conviction of We affirm. The defendant initially appeared before the justice of the peace in Lincoln County, Montana, on a charge of driving under the influence of alcohol. At that time, he moved the justice court to suppress the results of a breathalyzer test on the grounds that such test was the result of an illegal arrest and therefore inadmissible. The motion was denied, and the justice court, in a bench trial, found the defendant guilty. Defendant appealed this conviction to the District Court and renewed his motion to suppress. The parties agreed that the trial court would rule upon the motion based upon a set of stipulated facts. Ruling thereon, the District Court denied defendant's motion. Defendant's motion to dismiss for lack of speedy trial was also denied, and a jury trial in District Court commenced October 1, 1984. renewed. At trial the motion to suppress was again The six-person jury found the defendant not guilty of driving while under the influence of alcohol, an offense defined by section 61-8-401, MCA, but found the defendant guilty of the offense of operation of a motor vehicle with a blood alcohol concentration section 61-8-406, MCA. judgment on pre-sentence the license revocation. .10 or more, defined in The District Court entered an oral jury's report, and maximum penalty: of verdict. Defendant the District Court 10 days in jail and a waived imposed a the $500 fine, plus The same day oral judgment was entered, the defendant appealed to this Court. The judgment and execution of sentence was stayed pending the determination of this appeal. S e v e r a l d a y s a f t e r f i l i n g h i s n o t i c e o f a p p e a l from t h e judgment, t h e d e f e n d a n t f i l e d a s t a t e m e n t o f r e c o r d on a p p e a l wherein he s t a t e d , p u r s u a n t t o s e c t i o n 46-20-302, that MCA, b e c a u s e h e was o n l y a p p e a l i n g from t h e t r i a l c o u r t ' s d e n i a l of t h e p r e - t r i a l motion t o s u p p r e s s , which was s u b m i t t e d t o t h a t c o u r t on s t i p u l a t e d order a transcript f a c t s alone, f o r appeal. he d i d n o t i n t e n d t o H e contends t h a t s i n c e t h e D i s t r i c t C o u r t c o n s i d e r e d t h e m a t t e r on a s e t o f s t i p u l a t e d f a c t s a l o n e , t h a t t h e same f a c t s c o n t r o l o u r c o n s i d e r a t i o n o f t h e d e n i a l o f t h e motion. The State, in response, argues p r o p e r l y g r a n t e d on t h e s t i p u l a t e d alternative, t h a t o t h e r evidence the D i s t r i c t Court's order. a t trial, that the m o t i o n was f a c t s alone, hut i n the adduced a t t r i a l supports The d e f e n d a n t renewed h i s motion and t h u s a n y e v i d e n c e i n t h e r e c o r d s u p p o r t i n g t h e D i s t r i c t C o u r t ' s o r d e r should be considered. To t h a t e n d , t h e S t a t e a t t a c h e d a s an a p p e n d i x a p o r t i o n o f t h e t r a n s c r i p t o f t h e t r i a l where o t h e r r e l e v a n t e v i d e n c e p e r t a i n i n g t o t h e i s s u e o f t h e s t o p and a r r e s t o f t h e d e f e n d a n t was p r o d u c e d . will We consider the entire a p p e n d i x p r o v i d e d by t h e S t a t e , record, including f o r two r e a s o n s : (1) the the d e f e n d a n t h a s n o t moved u s t o s t r i k e t h i s e v i d e n c e from t h e record; and (2) b e c a u s e of t h e r u l e t h a t a r u l i n g d e n y i n g a m o t i o n t o s u p p r e s s i s n o t f i n a l and may b e r e v e r s e d a t any time, and thus subsequently (I11.App. reviewing received People v. 1246. Taylor court during 1 9 8 3 ) , 449 N.E.2d 1 9 8 1 ) , 424 N.E.2d c.f. a may trial. 547; consider People People v. Taylor evidence v. Jones (I11.App. This r u l e i s recognized i n I l l i n o i s , (Ill. P e o p l e v . Schlemm ( 1 l l . A p p . 1971), 277 N.E.2d 1 9 8 0 ) , 402 N.E.2d 878, 881; 810, from where much o f o u r c r i m i n a l p r o c e d u r e c o d e i s d e r i v e d . Discussing this People v. rule, the Appellate Schlemm, 4 0 2 N.E.2d Court of a t 816, o b s e r v e d : Illinois, in "Had t h e m o t i o n t o s u p p r e s s been d e n i e d a t t h e s u p p r e s s i o n h e a r i n g , and had t h i s Court determined that the evidence produced a t t h a t h e a r i n g d i d n o t j u s t i f y d e n i a l o f t h e suppression motion, t h i s Court could consider the evidence i n t r o d u c e d a t t r i a l t o uphold d e n i a l o f t h e suppression motion. ( P e o p l e v. Braden 1 9 6 6 , 34 I 1 1 . 2 d 5 1 6 , 216 N.E.2d 808) I n commenting upon t h e above d o c t r i n e , P r o f e s s o r LaFave h a s s t a t e d : ' t h e n o t i o n t h a t t h e t r i a l r e c o r d may b e u s e d by t h e a p p e l l a t e c o u r t t o u p h o l d a search o r seizure notwithstanding the f a c t t h a t t h e lower c o u r t e r r e d i n f a i l i n g t o s u p p r e s s on t h e lesser amount o f e v i d e n c e produced a t t h e p r e t r i a l h e a r i n g i s an a t t r a c t i v e one--after a l l , it now a p p e a r s t h a t t h e f o u r t h if amendment was n o t v i o l a t e d , t h e n why should t h e defendant be e n t i t l e d t o a windfall r e v e r s a l of h i s conviction? ' LaFave, S e a r c h and S e i z u r e ( 1 9 7 8 ) , Vol. 3 , S 1 1 . 7 ( c ) , p . 732." See also, People v. Hall (111.App. 4 1 4 N.E.2d 1980), 201, The r u l e s t a t e d above d o e s n o t a l t e r t h e r u l e s t a t e d i n S t a t e v. Rader (1978), where w e n o t e d t h a t motion case, 177 Mont. "the general i s granted o r denied, and the alleged ordinarily be where judge one policies supporting F.ader apply i n a s i t u a t i o n , of the the the on case" 437, i s t h a t when a law o f search a d e a l t with another "law of 581 P.2d ... rule illegality replaced the 255, s u c h becomes relitigated." had 252, the the cannot situation case. The d o c t r i n e do n o t such a s i n t h e c a s e a t b a r , where t h e same j u d g e i s on t h e c a s e f o r i t s d u r a t i o n , a c c o r d , P e o p l e v . Taylor ( I l l . 1 9 7 1 ) , 277 N.E.2d recognized exceptions to the 878. "law o f Further, the case" recognizing these exceptions t o t h a t r u l e , annotation at 20 A.L.R.Fed. them a s b e i n g where the court stated or I rule. In we cited t o the ( 1 9 7 4 ) , which l i s t s one o f new e v i d e n c e p r e v i o u s l y u n a v a i l a b l e i s made known. above, 13 i n Rader, we the Under Rader either rule, the we Illinois may in to rule these c i r c u m s t a n c e s p r o p e r l y c o n s i d e r t h e whole r e c o r d and a p p l y it t o appellant's allegation of error. t h e D i s t r i c t Court, i n c o n s i d e r i n g t h e motion t o Here, s u p p r e s s was r e s t r i c t e d by t h e p a r t i e s ' the stipulations ruling. minima 1 provide stipulations. support for the Alone, court 's though, new evidence n o t contained i n Subsequently, t h e s t i p u l a t i o n s was adduced a t t r i a l t h a t l e n d s s u p p o r t t o the D i s t r i c t Court's order. From a r e v i e w o f t h e r e c o r d , t h e f o l l o w i n g a p p e a r t o b e t h e relevant facts: Hudson, town the A t 4:10 clerk p.m., of December 2 2 , Eureka, 1983, Joyce Montana, received an anonymous t e l e p h o n e c a l l from a f e m a l e a t t h e F i r s t and L a s t Chance S a l o o n , who r e p o r t e d a p o s s i b l e D U I . the license number o f direction description involved, a traveled by thereof, and vehicle. O f f i c e r J i m W i l l i a m s of t h e Montana Highway P a t r o l was .in the the vehicle The c a l l e r gave being t h e o f f i c e when t h e c a l l came i n . the motor He got i n t o h i s p a t r o l c a r and headed n o r t h on Highway 9 3 . H e soon saw t h e d e s c r i b e d v e h i c l e parked halfway o f f t h e road p o i n t i n g i n a southerly direction. On p u l l i n g around t o a p p r o a c h t h e c a r from b e h i n d , O f f i c e r W i l l i a m s n o t e d s k i d marks l e a d i n g t o t h e vehicle, later determined Officer Williams pulled began to pull vehicle. away. up to be 57 behind Officer feet the Williams The d r i v e r was Ron Truman. in length. vehicle, it then As slowly stopped the W i l l i a m s gave Truman a f i e l d s o b r i e t y t e s t and d e t e r m i n e d t h a t Truman was n o t u n d e r the influence of Officer Williams alcohol. noted defendant, Wesley R . trial that " a Sharp. When h e was passenger in t a l k i n g t o Truman, the vehicle, the O f f i c e r Williams t e s t i f i e d a t [ S h a r p ] was slumped down and l o o k i n g l i k e h e was about halfway passed o u t . H e was o b v i o u s l y e i t h e r s i c k o r drunk." O f f i c e r W i l l i a m s t h e n a s k e d Ron Truman w h e t h e r h e had driving been s i n c e he had l e f t the bar. Truman t o l d Officer Williams that he t h e y w e r e parked t h e r e , dispatcher just taken o v e r d r i v i n g when and t h a t h e d i d s o " b e c a u s e W s was e t o o drunk t o d r i v e . " the had O f f i c e r Williams t h e n c a l l e d back t o and had h e r g e t ahold of F i r s t and L a s t Chance S a l o o n . the caller a t the The c a l l e r was i d e n t i f i e d a s P a t t y G a r r i s , t h e bartender a t t h e saloon. had been answered gave driving test. vehicle when it was Wesley S h a r p . that the the defendant Based on Miranda test, that warnings he it She was a s k e d who left the bar O f f i c e r Williams a and arrested field Sharp and then sobriety for driving w h i l e u n d e r t h e i n f l u e n c e and t o o k him t o t h e p o l i c e s t a t i o n , where t h e b r e a t h a l y z e r t e s t was c o n d u c t e d . approximately defendant an hour S h a r p had a after blood the The t e s t , g i v e n arrest, alcohol showed level of that .17 the percent. The d e f e n d a n t a l l e g e s t h a t O f f i c e r W i l l i a m s was w i t h o u t a u t h o r i t y t o s t o p t h e d e f e n d a n t ' s v e h i c l e because he lacked This contention i s erroneous. probable cause t o do so. that is required of stop is have that he an o f f i c e r a i n making an "particularized" All investigatory or "reasonable" s u s p i c i o n t h a t c r i m i n a l a c t i v i t y may b e a f o o t . This i s the a p p l i c a b l e s t a n d a r d f o r an i n v e s t i g a t i v e s t o p o f a vehicle; or court can arbitrary or in other determine words that harrassing." 38 295, Cortez the St.Rep. particularized Gopher 1078, ( 1 9 8 1 ) , 449 U.S. basis from detention S t a t e v. Officer Here, "some 1081, 411, Williams was (Mont. relying 101 S.Ct. had a which the not 1 9 8 1 ) , 631 P.2d on United 690, States 66 L.Ed.2d. sufficient suspicion of i l l e g a l a c t i v i t y . 293, basis for v. 621. his A c i t i z e n had just c a l l e d t h e p o l i c e t o r e p o r t a p o s s i b l e D U I o f f e n s e and had given the police number a n d d e s c r i p t i o n facts were dispatcher the car's and t h e d i r e c t i o n o f corroborated when Office license travel. Williams found plate These the d e s c r i b e d v e h i c l e g o i n g i n t h e d i r e c t i o n a n d on t h e highway r e p o r t e d by t h e t e l e p h o n e c a l l e r . it was s t o p p e d h a l f w a y o f f t h e automobile, began pull to When W i l l i a m s came upon away when he t h e roadway and approached. Officer n o t i c e d s k i d marks coming from t h e v e h i c l e . at time, that inference, based on reasonable Williams H e had a r i g h t suspicion and logical t o stop t h e defendant's vehicle t o investigate a p o s s i b l e crime. A p p e l l a n t e m p h a s i z e s t h e f a c t t h a t t h e i n i t i a l t i p was g i v e n by an anonymous i n f o r m a n t . A s i d e from t h e f a c t t h a t all by of the information given the informant was c o r r o b o r a t e d a t t h e s c e n e , w e a l s o n o t e t h a t when i n f o r m a t i o n is provided by a "citizen informant" considered presumptively r e l i a b l e . 1 9 8 3 ) , 668 P.2d 1 LaFave S e a r c h and Williams 434, 439, 578 P.2d appellant determined that Ron is 1 4 0 0 , 1 4 1 1 ; S t a t e v. S e i z u r e S e c t i o n s 3.3 Alternatively, information S e e S t a t e v . K e l l y (Mont. 1 0 3 2 , 1 0 4 3 , 40 St.Rep. L i e s t i k o ( 1 9 7 8 ) , 176 Mont. that argues Truman, 1161, 1164; and and the (1978). once that 3.4, Officer driver of the v e h i c l e a t t h e t i m e o f t h e s t o p , was n o t u n d e r t h e i n f l u e n c e , that the ended scope and that permissible anything that investigatory occurred s t o p was thereafter This contention is a l s o not persuasive. impermissible. founded the of suspicion to stop for investigative detention was A may ripen i n t o probable cause t o a r r e s t through t h e occurrence of facts or incidents Medina-Gasca S t a t e s v. Here, on after (9th C i r . Portillo-Reyes O f f i c e r Williams, Ron Truman, observed the stop. 1 9 8 4 ) , 739 F.2d (9th C i r . United 1451, 1453; 1 9 7 5 ) , 529 F.2d observation, v. United 8 4 4 , 850. a f t e r running a f i e l d s o b r i e t y test t h e p a s s e n g e r Wesley Sharp i n t h e v e h i c l e s l o u c h e d o v e r and a p p a r e n t l y i n t o x i c a t e d . that States Officer Williams inquired Based on further. In r e s p o n s e t o t h e o f f i c e r ' s q u e s t i o n s , Ron Truman s t a t e d t h a t t h e two had j u s t s w i t c h e d p l a c e s and t h a t t h e y d i d s o b e c a u s e Sharp was "too drunk to drive." To further corroborate this, Officer Williams went back to the squad car and had the dispatcher call the First and Last Chance Saloon. informant, then identified, stated that Wesley driving the car when it left the saloon. Officer Williams' investigation had The Sharp was At that time, produced facts that ripened into the probable cause to arrest Wesley Sharp. He did so, gave Sharp his Miranda warnings, and brought him to the stationhouse, administered. where the breathalyzer test was Clearly, in this case Officer Williams was simply investigating an alleged criminal activity and using all of his facilities to determine what had occurred. was his job, and his duty. argument persuasive. We do not find appellant's An investigation or investigatory stop is guided by principles of reasonableness. enforcement That requires some latitude to Effective law be given to investigating officers to react to and follow up on their observations. Drawing artificial distinctions or "time lines" in situations such as these does not comport with reality or common sense. above, is that the All that is required, as stated officer had some articulable, or particularized suspicion that criminal activity was afoot; in other words, that the particular investigation or stop was not solely arbitrary or for the purposes of harrassment. As long as the scope and duration of that investigation stays within these parameters, we have no difficulty with upholding such an investigation and any evidence of criminal activity adduced therefrom. Justice Sheehy, in his dissent, has raised various issues and has expressed his opinion of the handling of this case in the District Court and this Court. It is my opinion that defense counsel, both having excellent reputations, chose to present this appeal solely on the issue of the validity of the order refusing to suppress the breathalyzer test results. so it is not possible participation by the No transcript was submitted, to defense determine in the the extent settlement of of jury instructions, submission of the special verdict form, or in the examination of witnesses. Therefore the opinion has been restricted to the issue presented on appeal. Based on the foregoing reasons, the order of the District Court denying the defendant's motion to suppress the results of the breathalyzer test, and affirmed. We concur: Justices H the judgment, are Mr. Justice John C. Sheehy, dissenting: I dissent. sustain this imperfections. do not understand how the Court can I conviction in the face of its obvious Sharp has been deprived of due process, subjected to double jeopardy, and denied a speedy trial. Not one but three violations of the State's Constitutional rights have occurred. We should reverse the judgment of his conviction sua sponte. Due Process The defendant Sharp has been convicted of a crime for which no complaint, indictment or information was ever filed against him. This case arrived in the District Court by way of appeal from a criminal conviction in a justice court. This means that there is not in the District Court file any information filed by a county attorney, nor a true bill by a grand jury. The founding papers on which the charges against Sharp are based must rest then in the papers that were transferred to the District Court from the justice court in which his original conviction was obtained. In the justice court, the only charge against Sharp is that filed by highway patrolman James Williams on January 3, 1984, charging that Sharp, on December 22, 1983 committed the offense of "driving while under the influence of alcohol, second offense." No other charges were made a.gainst Sharp in the justice court. His sentence in the justice court on conviction was a fine of $500, his driver's license suspended for one year, and 173 days of jail sentence to be suspended on the condition that he take a chemical dependency program treatment. Under S 46-17-311, MCA, all criminal cases on appeal from justices courts must be tried anew in the District Court. In this type of case, the District Court acts under its appellate jurisdiction. Section 3-5-303, MCA. In the District Court, after trial, Sharp was found "not guilty of the offense of driving while under the influence of alcohol, a misdemeanor." His J.P. conviction was reversed. However, Sharp was operation of a motor "guilty of the offense of found vehicle by a person with alcohol concentration of 0.10 or more." Thus, Sharp was found guilty in the District Court of an. offense for which he was never charged by information, true bill, or complaint. Under Art. 11, S 20, 1972 Montana Constitution, criminal offenses within the jurisdiction of any court inferior to the District Court "shall-" he prosecuted by complaint. The iustice court file does not contain a complaint based on alcohol concentration of 0.10. The same state constitutional provision relating to criminal actions in the District Court require either information or indictment. Neither an information nor indictment is contained. in the District Court file. With respect to justice courts, 5 46-17-101, MCA, requires that all criminal prosecutions in the justice court be commenced by complaint under oath. Under 46-11-401, MCA, all charges against a defendant in a criminal prosecution must be in writing and charge the offense by stating the name of the offense, the statute invol-ved, and the facts constituting the offense ordinary concise language. in the No such charge in writing appears in the District Court file rel-ating to the "operation" of a motor vehicle. Sharp has been deprived of due process in that he has been convicted of a crime in a District Court for which he has never been charged. The first time that the charge of operating a motor vehicle while having a blood alcohol concentration of 0.10 appears is in the instru-ctions of the District Court to the jury. The test of the sufficiency of the information (and presumably of the justice court complaint) is whether the defendant is apprised of the charges brought against him and whether he will be surprised. 142 State v. Bogue (Mont. 1963), Mont. 459, 3 8 4 P.2d 749. Double Jeopardy It is necessary to understand the state's statutes respecting driving under the influence of alcohol and of operating a motor vehicle under that influence to see that the District Court got trapped in egregious error because it did not understand the statutes. There are two ways in which the State may prosecute a defendant for driving or operating motor vehicles under the influence of alcohol. Under S 61-8-401 (1)(a), MCA, it is unlawful for any person who is under the influence of alcohol "to drive or be in actual physical control of a motor vehicle upon the highways of this State open to the public." Note, please, that under S 61-8-401, MCA, the offense is committed if one is driving, or is in actual physical control of a motor vehicle upon a highway while under the influence of alcohol. With respect to the quantum of proof to establish a violation of S 61-8-401, MCA, relating to alcohol, the statutes establishes certain presumptions with respect to blood alcohol tests. If at the time of the alleged offense there is an alcohol concentration of 0.05 or less it is presumed al-cohol. that the person was not under the influence of Section 61-8-401 (3)(a), MCA. If there was at the time a blood alcohol concentration in excess of 0.05 but less than 0.10, there is no presumption, - - - may but the fact be competent evidence - determininq the in considered with other Section 61-8-401 (3)(b), guilt - innocence - - person. or or the MCA . If at the time there is an alcoholic concentration of 0.10 or more, it is presumed that the person was under the influence, but the presumption is rebuttable. Section 61-8-401 (3) (c), MCA. A different crime for operating a vehicle under the influence of alcohol is provided in S 61-8-406, MCA. There it is unlawful "for any person to drive or be in actual physical control of a motor vehicle upon the ways of this State open to the public while the alcohol concentration in his blood, brea.th, or urine is 0.10 or more." Note please under 61--8-406, the crime is defined by the status of the blood alcohol content. Nothing more than the blood alcohol concentration is required to be proved if the person is driving or in actual physical control of the motor vehicle at the time. In sum, then, under S 61-8-401, MCA, a person may be convicted of driving or being in actual physical control of a motor vehicle while under the influence of alcohol if his blood alcohol concentration is in excess of 0.05 (50 milligrams per 100 milliliters) but less than 0.10 (100 milligrams per 100 milliliters) and other competent evidence shows he was guilty; if his blood alcohol concentration is 0.10 (100 milligrams per 100 milliliters) or more, there is a rebuttable presumption that he was under the influence of alcohol. Under 5 61-8-406, MCA, proof of the blood alcohol concentration of 0.10 (100 milligrams per 100 milliliters) or more is sufficient proof of the alcohol influence. The District Court did not so instruct the jury. Instead the District Court instructed the jury erroneously as follows: "The crime charged against the defendant is driving while under the influence of alcohol, a misdemeanor and all six of your numbeFmust agree jn order to . return either a verdict of guilty or not guilty. "To do so, it is necessary that you consider the crime of driving while under the influence of alcohol first and that all six of you find the defendant either guilty or not guilty of that charge. "In the event you find the defendant guilty of driving while under the influence of alcohol, you need go no further as you will have reached a verdict in this case. And shall contact the bailiff to return you to open court. "In the event you find the defendant not guilty of driving while under the influence of alcohol-, you must then consider the lesser included offense of a operation of motor vehicle & - person with alcohol concentratzn - - -or more. You must then find of 0.10 the defendant guilty or not guilty of that charge. When you have done so, you have reached. a verdict and need not proceed further but shall contact the bailiff to return you to open court." The District Court erred in giving that instruction, first, because it divided the elements provided in both statutes "to drive or be in actual physical control of a motor vehicle" while und.er the influence of alcohol. The court dissected the statutes and erroneously determined that one statute concerned itself with actually driving the motor vehicle, and the other statute "operation" of a motor vehicle. concerned itself with It committed grievous error when it instructed the jury that the "operation" of a motor vehicle was a lesser included offense of "driving" a motor vehicle. Was the jury confused? It certainly was. During its deliberation, it sent out a question to the court, asking the following: "What is the definition of "driving" while under the influence of alcohol? And does this differ from "operation of a motor vehicle by a person with alcohol concentration of 0.10 or more?" The District Court answered the question to the effect that "the instructions that have been given contain the law that defines these offenses." Again the District Court committed an egregious error. Having been so erroneously instructed, and so erroneously answered, as might be expected, the fury returned a baffling verdict. It found Sharp "not guilty of the offense of driving while under the influence of alcohol a . misdemeanor," but "guilty of the offense of operation of a motor vehicle by a person with alcohol concentration of 0.10 or more. " The District Court, having first erred by charging the defendant with an information, or an offense not stated in indictment, compounded a the complaint, error by determining that "operation" of a motor vehicle is a lesser included offense of "driving" a motor vehicle. This in spite of the fact that in each of the two statutes that relate to driving under the influence of alcohol, there is also included the "actual physical operation" of a motor vehicle. Section 46-11-501, MCA, d-efines what is an "included offense" under our State statutes. The offense is included. when it is established by proof of the same or less than all the facts required to establish a commission of the offense charged, or a lesser kind of cul-pability suffices to establish its commission. As is demonstrated above, a crime of "operation" of a motor vehicle by driving or being in actual physical control of a vehicle with a blood alcohol concentration of 100 milligrams per 100 milliliters or more cannot be a lesser . included offense of the crime described in 5 46-11-401, MCA, driving or being in actual physical control of a motor vehicle under the influence of alcohol, because under the latter crime, a conviction may be had if the blood alcohol concentration is 50 milligrams per 100 milliliters. In other words, it takes a greater degree of proof or a greater degree of culpability to establish the "operation" crime than the "driving crime" as described by the ~istrictCourt. "A lesser included offense exists when all of the elements of the lesser offense are necessary elements of the greater offense. Put another way, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime." State v. Roybal (Wash. 1973), 512 P.2d. 718. It should be apparent that Sharp has been subjected to double jeopardy in this case. offenses under §§ 61-8-401 Section 46-11-503, MCA. (driving) and The 61-8-406, MCA, (operation) were known to the attorney prosecuting the case in the justice court, were consummated prior to the original charge and jurisdiction and venue of both offenses lay in the iustice court. A judgment of conviction for driving under the influence of alcohol second offense was obtained. in the justice court. That conviction was reversed by the jury in the District Court. Charging him in the District Court on the appeal with criminal operation constituted a new charge based upon the same transaction which could and should have been prosecuted in the justice court. Double jeopardy attaches to the conviction of "operation" in the District Court. Again, Sharp has been deprived of a State Constitutional . right, the right not to be "again put i n jeopardy for the same offense previously tried in any jurisdiction." Art. 11, 5 25, 1972 Montana Constitution. Speedy Trial Under State v. St.Rep. Knox (Mont. 19841, 675 P.2d 950, 41 126, a misdemeanor charge must be dismissed if the defendant's trial, following appeal from the conviction in the justice court, is not brought to trial speedily. Here the appeal was filed February 23, 1984 and trial commenced October 1, 1984, a lapse of 220 days. A motion was made to dismiss for lack of speedy trial and the trial court record does not show the disposition of that motion. The trial court record does reflect that there was a denial of the motion to suppress, based upon a purported stipulation, but the stipulation is not contained in the District Court file. I therefore would accord no respect to the order denying the motion to suppress and determine that the lapse of 220 days exceeded the permissible six months to bring this case to trial. This case is criminal justice. a disgrace to the administration of The defense attorney did not raise the objections I have stated here, the county prosecutor did not charge the defendant in the justice court with all of the offenses chargeable under the laws at the time, and the District Court compounded the errors either by disregarding the statutes or not reading them. The defendant's conviction should be reversed as a lesson to all concerned. this Court continues the disgrace. f / / Justice Otherwise Mr. J u s t i c e William E. I concur in Hunt, Sr. d i s s e n t i n g and c o n c u r r i n g : t h e dissenting opinion of of Mr. Justice Sheehy e x c e p t t h a t I d o n o t f i n d a n y t h i n g i n t h e r e c o r d t o i n d i c a t e t h a t t h e d e f e n d a n t was n o t w e l l r e p r e s e n t e d by h i s attorney.

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