## Facts

- Michael Schwein leased a specific parking space in a privately owned lot located between two Billings businesses (including a saloon and a welding shop).
- During daytime business hours, the lot was open to the general public, and unleased spaces were commonly used by patrons of nearby businesses.
- After dark, the lot was intended for use only by leaseholders; however, there was no gate, fence, guard, or other physical barrier that prevented members of the public from driving into the lot, and the public in fact used it.
- At Schwein’s request, the lot’s owner would remove unauthorized vehicles from Schwein’s leased space.
- Around 11 p.m. on March 13, 1999, a Yellowstone County deputy noticed a black Corvette parked in Schwein’s space with its headlights on.
- The deputy approached and found Schwein asleep in the driver’s seat. The engine was not running, but the ignition switch was turned on and the vehicle’s lights were on.
- When awakened, Schwein appeared intoxicated and refused field sobriety tests and a preliminary breath test.
- The deputy arrested Schwein for DUI. Schwein later provided a breath test at the detention facility showing a blood-alcohol concentration of 0.229.
- The State charged Schwein with DUI, which required proof that he drove or was in actual physical control of a vehicle “upon the ways of this state open to the public.”
- A jury convicted Schwein, and he appealed.

## Issues

1. Did the District Court err in denying Schwein’s motion to dismiss the DUI charge on the ground that the State failed to prove Schwein’s vehicle was “upon a way open to the public”?
2. Did the District Court err in denying Schwein’s motion for a mistrial after the court informed the jury that Schwein was being prosecuted for felony DUI?
3. Did the District Court err in admitting the results of Schwein’s breath test?

## Decision

- The Montana Supreme Court affirmed the conviction.
- The evidence supported a finding that the private parking lot—though leased and intended for leaseholder use after hours—was a “way of this state open to the public” because it was accessible and used by the public and lacked physical barriers restricting entry.
- The District Court did not abuse its discretion in denying a mistrial based on the brief reference to “felony DUI,” where the reference did not introduce evidence of prior convictions and did not deprive Schwein of a fair trial.
- The District Court did not err in admitting the breath-test results because the State established the required foundation and showed sufficient compliance with governing procedures; objections went to weight rather than admissibility.

## Legal Principles

- A “way of this state open to the public” for Montana DUI purposes is not limited to publicly owned roads; it can include private property, such as a parking lot, when the public has practical access and actually uses the area for vehicular travel, even if the property is subject to leases or intended after-hours limits.
- A mistrial is an exceptional remedy. A trial court’s refusal to grant a mistrial will be reversed only for an abuse of discretion resulting in unfair prejudice that cannot be cured by instructions and the overall conduct of the trial.
- Breath-test results are admissible when the State lays the statutory and regulatory foundation (approved device, qualified operator, proper procedures, and adequate proof of testing conditions). Minor disputes about compliance generally affect the weight of the evidence unless the defendant shows a meaningful defect in the foundational requirements.

## Conclusion

The Montana Supreme Court upheld Schwein’s DUI conviction because the lot where he was found, including his leased stall, qualified as a way open to the public based on public access and use; the isolated “felony DUI” reference did not create unfair prejudice requiring a mistrial; and the State laid an adequate foundation for admitting the 0.229 breath-test result.


State v. Schwein, 16 P.3d 373, 303 Mont. 450 (2000)