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STATE OF MONTANA,
Plaintiff and Respondent,
v.
TERRY DALE LeMASTER,
Defendant and Appellant.
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APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and for the County of Stillwater, Cause No. DC 04-04,
The Honorable Blair Jones, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
George T. Radovich, Attorney at Law, Billings, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant
Attorney General, Helena, Montana
John Petak, III, Stillwater County Attorney, Columbus, Montana
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Submitted on Briefs: February 28, 2007
Decided: March 13, 2007
Filed:
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Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Terry Dale LeMaster (LeMaster) appeals from the District Court’s order for the
Twenty-Second Judicial District, Stillwater County, denying his motion to dismiss his
DUI charge. We affirm.
¶3 The State charged LeMaster with misdemeanor driving under the influence of
alcohol. The State arrested LeMaster following his involvement in an accident while
driving a four-wheeler near the intersection of Stadel Lane and East Shane Creek Road,
west of Columbus, in Stillwater County. LeMaster filed a motion to dismiss the charges
on the grounds that he was not traveling on a way of the State open to the public at the
time of the DUI. The District Court conducted a hearing on LeMaster’s motion.
¶4 Witnesses testified at the hearing on LeMaster’s motion that cement trucks, water
trucks, delivery trucks, including FedEx and UPS trucks, lost motorists, people looking to
buy real estate, people visiting homes of residents along the road, and people pulling
horse trailers, all traveled along the road at issue. As a result, the court found that these
users constitute members of the general public who traveled along the road. One
homeowner, Ivan McCrorie, testified that he put up a no trespassing sign along the road
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to keep people from trespassing on his adjacent property. McCrorie wanted road
travelers to realize that the road was used for access to private residences and to slow
down while driving along the road. The District Court found McCrorie’s explanation to
be a reasonable construction of the purpose for the sign. The court further found that the
sign’s existence alone did not preclude a designation of the road as a way of the State
open to the public.
¶5 LeMaster argues on appeal that the District Court erred in finding that a road
accessing a private subdivision that was not in general use by the public, that was posted
“no trespassing,” that provided no public services or parking, and that was a dead end,
was a way of the State open to the public. The State counters that the District Court
correctly determined that the road was a way of the State open to the public in light of the
testimony at the hearing with the District Court regarding its use by various members of
the public.
¶6 We review the District Court's conclusion that Stadel Lane is a "way of this state
open to the public" as one of law, involving the interpretation of the statutes at issue. In
this respect our review is plenary. State v. Weis,
(1997).
¶7 We have determined to decide this case pursuant to Section 1, Paragraph 3, of the
Internal Operating Rules, as amended in 2003, that provided for memorandum opinions.
It is manifest on the face of the briefs and record before us that LeMaster’s appeal lacks
merit. Settled Montana law clearly controls the legal issues presented and the District
Court correctly interpreted these legal issues.
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¶8 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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