Opinion
Court of Appeals No. A-10461.
September 15, 2010.
Appeal from the District Court, Third Judicial District, Dillingham, Monte L. Brice, Magistrate, Trial Court No. 3DI-08-484 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Emma E. Haddix, Assistant District Attorney, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Nicholai Larson appeals his conviction for driving a motor vehicle under the influence.
AS 28.35.030(a).
According to the State's evidence at Larson's trial, the Dillingham police were dispatched shortly after midnight on November 1, 2008 to the scene of a one-vehicle accident. Sergeant Dan Pasquariello arrived at the scene and found a white van sitting off the road, stuck in the snow. No one was in the van, but there was vomit on the driver's side door and footprints leading up the road.
Pasquariello followed the footprints to the priest's house at the nearby Russian Orthodox Church. Pasquariello knocked on the door, and a woman answered. She told Pasquariello that her husband, Father Nicholai Larson, had driven the van off the road, and that he was now sleeping.
Pasquariello asked her to go upstairs to wake her husband. She left, apparently to comply with this request; but when she still had not returned thirty minutes later, Pasquariello went upstairs and found Larson in his bedroom. Pasquariello noticed that Larson smelled of alcoholic beverages, that he had bloodshot eyes, and that his voice was slurred.
Larson told Pasquariello that he had drunk a cup of rum at the house of his friend, Tom Weedman, and that he then drove his van to the gym to pick up some people. Larson stated that, while he was driving home from the gym, a car approached in the opposite lane with its high beams on, and this caused Larson to go off the road. Larson told Pasquariello that no one was hurt in the accident. Larson's passengers walked to his house, while Larson stayed with the van and tried to call Weedman. Eventually, Larson also walked home.
Larson admitted that the vomit in the van was his: he explained that he did not usually drink rum. Larson also told Pasquariello that he did not consume any further alcoholic beverages after he left Weedman's house.
Larson agreed to take field sobriety tests, which he performed poorly. Pasquariello then arrested Larson for driving under the influence. A breath test at the police station showed that Larson's blood alcohol level was .140 percent. Larson asked for a second breath test; this test showed that his blood alcohol level was .132 percent.
At trial, Larson took the stand and testified to a different version of events. Larson said that he drank very little — only a few sips of liquor — at his friend Tom Weedman's house, and that he poured some liquor into a Coca-Cola bottle to drink later. Larson testified that he then went home and left the liquor-filled bottle there.
Later, Larson left his house to pick up some people. On his way back home, a car drove toward him in the middle of the road, and he was forced to swerve to avoid it. According to Larson, this is how his van became stuck in the snow. After he tried unsuccessfully to reach Weedman by phone, Larson decided to walk home. This took him five or ten minutes.
When Larson arrived home, he realized that he had left his keys in the van, so he turned around and walked back to the van — taking the liquor-filled bottle with him. Larson said that, while he was walking, he drank the liquor from the bottle.
According to Larson, when he reached the van, he sat himself in the driver's seat and retrieved his keys from the ignition — but then he dropped them. As he reached for the keys, he felt sick, so he opened the window of the van and vomited. Larson stated that he then started back home, and that he drank the remainder of the liquor from the bottle along the way. When Larson got home, he "either passed out or blacked out."
In its rebuttal case, the State re-called Sergeant Pasquariello and played the audio recording of his contact with Larson. Pasquariello testified that this audio recording was accurate, and he reiterated that, during his contact with Larson, Larson told him that he had had nothing to drink after he left Weedman's house.
Larson's trial was a bench trial in front of Magistrate Monte L. Brice. At the conclusion of the evidence, Magistrate Brice found Larson guilty of driving under the influence. The magistrate stated that he did not need to decide whether Larson was intoxicated at the time Larson's van went into the ditch, because he was convinced that Larson was "certainly [intoxicated] at the time . . . he retrieved his keys [from the van]."
In this appeal, Larson argues that, as a matter of law, he was not "operating" his van (within the meaning of the driving under the influence statute) when he entered the van, sat in the driver's seat, and retrieved the keys from the ignition. Larson points out that the van was immobilized ( i.e., stuck in the snow), and Larson also points out that the State presented no evidence that he tried to start the van when he retrieved his keys.
Under the pertinent Alaska case law, the concept of "operating" a motor vehicle includes being in "actual physical control" of the vehicle, regardless of whether the vehicle is moving. See also AS 28.90.990(a)(8), which defines "driver" as "a person who drives or is in actual physical control of a vehicle". This rule is based on the policy of deterring intoxicated people from assuming physical control of a vehicle, even if they never actually drive.
See Majaev v. State, 223 P.3d 629, 633 (Alaska 2010); Department of Public Safety v. Conley, 754 P.2d 232, 233-34 (Alaska 1988); Jacobson v. State, 551 P.2d 935, 937 (Alaska 1976).
Conley, 754 P.2d at 234; Jacobson, 551 P.2d at 938; Williams v. State, 884 P.2d 167, 170-71 (Alaska App. 1994).
Thus, both the Alaska Supreme Court and this Court have held that a person can be in "actual physical control" of a motor vehicle even if the motor is not running. For example, in Department of Public Safety v. Conley, the supreme court held that the defendant was in "actual physical control" of her vehicle, for purposes of the DUI statute, when the evidence showed that she was sitting in the driver's seat, trying to insert the key into the ignition.
754 P.2d 232, 236 (Alaska 1988).
Moreover, a person can be in "actual physical control" of a motor vehicle even though the vehicle is temporarily disabled and incapable of movement.
See Lathan v. State, 707 P.2d 941, 943 (Alaska App. 1985) (holding that "actual physical control" does not include a "movability" requirement); Kingsley v. State, 11 P.3d 1001, 1003-04 (Alaska App. 2000) (finding "actual physical control" even though the vehicle was stuck in the snow). See also Blanche v. Anchorage, Alaska App. Memorandum Opinion No. 3770 (March 11, 1998), 1998 WL 106156 at *1 (finding "actual physical control" when it appeared, from the evidence, that the vehicle needed only a battery jump and perhaps more gasoline); Axford v. State, Alaska App. Memorandum Opinion No. 2429 (May 13, 1992), 1992 W L 12153171 at *3 (finding "actual physical control" even though the vehicle's battery was dead, because the vehicle could have been rendered operable with a jump-start).
In Kingsley v. State, 11 P.3d 1001, 1003 (Alaska App. 2000), this Court held that a defendant was properly convicted of DUI (under the theory that the defendant was in "actual physical control" of a vehicle) even though the defendant's vehicle was stuck in the snow and the defendant had given up his efforts to free the vehicle. The defendant in Kingsley was found sitting in the driver's seat, with the ignition key in his pocket. He testified that he did all of his drinking after he gave up his attempts to get his vehicle out of the snow.
We pointed out that the State was required to prove only that Kingsley was in actual physical control of the vehicle — and that, if Kingsley had actively engaged the engine of his vehicle and allowed it to run, he would have been "operating" the vehicle, not merely exercising physical control over it. Id. at 1003. We also pointed out that, in Conley, the supreme court held that a person can exercise "physical control" over a motor vehicle (and thus be convicted of driving under the influence) even though the vehicle's engine is not running. Ibid.
We acknowledged that Conley involved a defendant who announced an intention to drive, and who tried to insert the ignition key into the ignition. However, we held that the State was not required to prove that a DUI defendant did something to try to set their vehicle in motion:
Kingsley, 11 P.3d at 1003, citing Conley, 754 P.2d at 236.
[W]e do not believe that such actions are necessary to prove that a defendant is in "actual physical control" of a vehicle. A person's attempt to operate a vehicle may furnish convincing proof that the person is in actual physical control of the vehicle, but a person may exercise actual physical control over a vehicle without making active attempts to operate it.
In this case, Kingsley was the sole occupant of his vehicle. He was sitting behind the steering wheel, and he had the keys to the vehicle in his pocket. Under these facts, Kingsley was in "actual physical control" of the vehicle even though the engine was not running and even though Kingsley made no active attempt to start the engine.
Kingsley, 11 P.3d at 1003.
Based on these authorities, we conclude that Larson could properly be convicted of driving under the influence in this case if, as Magistrate Brice found, Larson was intoxicated when he returned to his van, sat in the driver's seat, and retrieved his keys from the ignition. At that point, Larson was in actual physical control of the vehicle, even if he had no intention of putting the vehicle into motion.
The judgement of the district court is AFFIRMED.