State v. Schwein

Michael Schwein (defendant) leased a space in a private parking lot that was open to the general public and commonly used by patrons of nearby businesses during daytime business hours, though restricted to leaseholders after dark; at the lot owner's request, unauthorized cars were normally removed from Schwein's space. One night, a police officer found Schwein asleep in his car, parked in his own leased space with the headlights on and the ignition switched on though the engine was off; Schwein showed signs of intoxication, refused sobriety and breath tests, and a hospital blood test later showed a blood-alcohol concentration of 0.229 percent. Montana's DUI statute required proof the defendant drove or had actual physical control of a vehicle "upon the ways of the state open to the public," and the jury convicted Schwein, who appealed.