Opinion
Court of Appeals No. A-11142 Trial Court No. 3KN-11-719 CR No. 5981
11-06-2013
STATE OF ALASKA, Appellant, v. TYLER S. ADAMS, Appellee.
Appearances: Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellant. Hannah E. King, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Kenai, Jennifer K. Wells, Magistrate.
Appearances: Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellant. Hannah E. King, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge ALLARD.
In this appeal, we are asked to construe former AS 28.35.161 and determine if the former statute prohibited text-messaging while driving.
On April 29, 2011, Tyler S. Adams was stopped by the Soldotna police after they received reports that he was driving erratically. Adams admitted that he was text-messaging on his cell phone while he was driving. He was subsequently charged with driving a motor vehicle with a screen device operating, in violation of former AS 28.35.161.
Adams moved to dismiss the case, asserting that text-messaging on a cell phone while driving was not a violation of former AS 28.35.161. After reviewing the legislative history, Magistrate Jennifer K. Wells concluded that the legislative intent was ambiguous and that she was therefore required to construe the former statute narrowly under the rule of lenity. She granted Adams's motion to dismiss and the State appealed.
For the reasons set out below, we agree with the district court that the legislative intent behind former AS 28.35.161 is ambiguous with regards to whether the former statute was intended to prohibit text-messaging while driving. We therefore affirm the judgment of the district court.
The former and current versions of Alaska Statute 28.35.161
Former Alaska Statute 28.35.161 was enacted by the legislature in 2008. The former statute provided, in pertinent part:
§ 28.35.161. Driving a motor vehicle with a screen device operating; unlawful installation of television, monitor, or similar device.Subsection (c) provided various exceptions to the prohibitions in (a) and (b). The statutory exceptions included a specific exception for "portable cellular telephones or personal data assistants being used for verbal communication or displaying caller identification information." The former statute also included exceptions for audio or vehicle control equipment, global positioning devices, emergency vehicles, passenger and package delivery dispatch vehicles, public utility vehicles, and other types of vehicles not at issue in this case.
(a) A person commits the crime of driving with a screen device operating if
(1) The person is driving a motor vehicle;
(2) The vehicle has a television, video monitor, portable computer, or any other similar means capable of providing a visual display that is in full view of a driver in a normal driving position while the vehicle is in motion; and
(3) The monitor or visual display is operating while the person is driving.(b) A person may not install or alter equipment described in (a)(2) of this section that allows the images to be viewed by the driver in a normal driving position while the vehicle is in motion.
Former AS 28.35.161(c) (2009).
Former AS 28.35.161(c)-(d) (2009).
In 2012, the legislature amended AS 28.35.161 to expressly prohibit text-messaging while driving. The current statute now provides, in pertinent part:
§ 28.35.161. Use of electronic devices while driving; unlawful installation of television, monitor, or similar device.The legislature also amended the statutory exception for cellular telephones in subsection (c), changing the term "verbal communication" to "voice communication." The rest of the statute remained the same.
(a) A person commits the crime of driving while texting, while communicating on a computer, or while a screen device is operating if the person is driving a motor vehicle, and
(1) the vehicle has a television, video monitor, portable computer, or any other similar means capable of providing a visual display that is in full view of a driver in a normal driving position while the vehicle is in motion, and the monitor or visual display is operating while the person is driving; or
(2) the person is reading or typing a text message or other non-voice message or communication on a cellular telephone, personal data assistant, computer, or any other similar means capable of providing a visual display that is in the view of the driver in a normal driving position while the vehicle is in motion and while the person is driving.
2012 Alaska Sess. Laws Ch. 14 (H.B. 255).
The 2012 amendments became effective on May 11, 2012. Our analysis in this case therefore only applies to persons, like Tyler Adams, who were charged with violating the former version of the statute, prior to the effective date of the current statute.
Did former AS 28.35.161 prohibit text-messaging while driving?
The interpretation of a statute is a question of law that we review de novo. When construing a statute, we look to three primary factors: the language of the statute, the legislative history, and the legislative purpose behind the statute. The guiding principle of statutory construction is "to give effect to the intent of the legislature, with due regard for the meaning that the statutory language conveys to others."
Oels v. Anchorage Police Dept. Employees Ass'n, 279 P.3d 589, 595 (Alaska 2012). See also Dandova v. State, 72 P.3d 325, 333 (Alaska App. 2003).
Oels, 279 P.3d at 595.
Tesoro Petroleum Corp. v. State, 42 P.3d 531, 537 (Alaska 2002) (internal quotations omitted).
The legislative history and background of former AS 28.35.161
On October 12, 2002, two Anchorage residents were killed in a head-on collision. An investigation revealed that the driver of the other vehicle had installed a DVD player and a monitor on the dashboard of his truck, and that he may have been watching a movie at the time of the accident. The State charged the driver with murder in the second-degree. The driver was acquitted because the State was unable to prove beyond a reasonable doubt that the driver was watching the television when the accident occurred.
See Minutes of House State Affairs Committee, House Bill 88, testimony of David Weiser, 9:47:44 a.m. (Feb. 13, 2007).
In response, State Representative Max Gruenberg introduced a new bill into the 2005-2006 legislative session. House Bill 12 (24th Legislature), An Act Relating to Televisions and Monitors in Motor Vehicles, sought to "increase [] the penalties for driving a motor vehicle while watching a television or a video monitor or any such screen that is in the vehicle and produces entertainment or has business applications."
See Minutes of House State Affairs Committee, House Bill 12, statement of Rep. Max Gruenberg, 10:29:12 a.m. (Mar. 5, 2005).
Representative Gruenberg noted that a 1969 regulation, 13 AAC 04.260, already made it a traffic infraction for a motor vehicle to have a television-type screen if it is visible from the driver's seat. He explained that the main purpose of H.B. 12 was to increase the criminal penalty to a class A misdemeanor if the screen was operating at the time of driving and to further increase the penalties to felony levels if another person was harmed or killed by the driver's actions. Representative Gruenberg also explained that because the State would likely have difficulty proving that the driver was actually watching the screen, the bill was worded so that the State would have to prove (1) that the entertainment system was operating at the time the vehicle was being driven; and (2) that the electronic screen was in full view of the driver.
Minutes of House State Affairs Committee, House Bill 12, statement of Rep. Max Gruenberg, 10:29:12 a.m. (Mar. 5, 2005). H.B. 12 provided, in relevant part:
A person who violates (a) of this section is guilty of a
(1) class A misdemeanor;H.B. 12, 24th Leg., 1st Sess. (2005). The bill that was finally adopted in 2008 used similar language. See 2008 Alaska Sess. Laws Ch. 99 (H.B. 88).
(2) class C felony if as a result of that violation another person suffers a physical injury;
(3) class B felony if as a result of that violation another person suffers serious physical injury;
(4) class A felony if as a result of that violation another person suffers death.
Minutes of House Judiciary Committee, House Bill 12, statement of Rep. Max Gruenberg 1:59:31 p.m. (Apr. 6, 2005).
House Bill 12 was not adopted during the legislative session, in part because of various debates about the intended scope of the legislation. Some legislators were concerned that the bill might be read as prohibiting common-place activities such as talking on a cell phone or using a touch-screen stereo system. Other legislators were in favor of extending the bill to prohibit all use of distracting electronic devices while driving, including all cell phone use.
See, e.g., Minutes of House Judiciary Committee, House Bill 12, statement of Rep. Tom Anderson, 1:59:31 p.m. (Apr. 6, 2005); Minutes of House Finance Committee, House Bill 12, statement of Rep. Bill Stolze, 4:24:16 p.m. (Apr. 22, 2005).
See, e.g., Minutes of Senate State Affairs Committee, House Bill 12, statement of Sen. Charlie Huggins, 3:42:28 p.m., statement of Sen. Thomas Wagoner, 4:13:42 p.m. (Apr. 6, 2006).
This legislation was re-introduced in the next legislative session as House Bill 88 (25th Legislature). Once again, debate over the intended scope of the legislation stalled passage of the bill. An early version of House Bill 88 expressly prohibited "reading from the visual display on a portable cellular telephone or personal data assistants." In the committee meetings, some legislators expressed concern that the bill, which had started out addressing the issue of drivers watching video devices, had now added the more controversial issue of cell phone usage, which would make the bill less likely to pass. In response, one of the co-sponsors, Representative Gatto, asked that the bill be narrowed to its original purpose.
See, e.g., Minutes of House State Affairs Committee, House Bill 88, statement of Rep. Bob Roses, 8:47:43 a.m., statement of Rep. John Coghill, 8:53:46 a.m., statement of Rep. Bob Roses, 8:56:28 a.m. (Feb. 20, 2007); Minutes of House Judiciary Committee, House Bill 88, testimony of Anne Carpeneti, Assistant Attorney General, Department of Law, 1:20:38 p.m. (Feb. 28, 2007); Minutes of House Finance Committee, discussion of Reps. Neal Foster, Carl Gatto, and Les Gara, 9:43:37 a.m. (Mar. 5, 2007); Minutes of Senate State Affairs Committee, discussion of Sens. Hollis French and Gary Stevens and Rep. Max Gruenberg, 10:25:53 a.m. (Mar. 19, 2008).
Minutes of House State Affairs Committee, House Bill 88, statement of Rep. Max Gruenberg, 9:55:32 a.m. (Feb. 13, 2007).
Minutes of House State Affairs Committee, House Bill 88, statements of Reps. Bob Roses and Bob Lynn, 8:47:43 a.m. (Feb. 20, 2007).
Minutes of House State Affairs Committee, House Bill 88, statements of Rep. Carl Gatto, 8:49:24, 8:55:21 (Feb. 20, 2007).
Consequently, the version of the bill that expressly prohibited reading from the visual display of a cell phone, C.S.H.B. 88 (STA), was replaced by a new version, C.S.H.B. 88 (JUD), and the express prohibition against reading from a cell phone's visual display was deleted.
C.S.H.B. 88, 25th Leg., 1st Sess. (as offered Feb 21, 2007); C.S.H.B. 88, 25th Leg., 1st Sess. (as offered Mar. 1, 2007); 2007 House Journal 360.
In the same committee meetings, the legislature discussed the fact that cell phones and similar hand-held devices are sometimes capable of playing movies. The legislators wanted to ensure that this use — as opposed to using the devices for communication — would be prohibited. That is, people would be prohibited from watching movies on a cell phone while driving, but would not be prohibited from using a cell phone to communicate while driving. The exemption for "portable cellular telephones or personal data assistants being used for verbal communication or displaying caller identification information" was therefore added to the bill.
See, e.g., Minutes of Senate Judiciary Committee, House Bill 88, discussion of Rep. Max Gruenberg and Sen. Hollis French, 2:15:10-2:17:17 p.m. (Apr. 3, 2008).
Former AS 28.35.161(c)(1) (2009); see also Minutes of Senate Judiciary Committee, House Bill 88, discussion of Rep. Max Gruenberg and Sen. Hollis French, 2:15:10-2:17:17 p.m. (Apr. 3, 2008).
In 2008, the legislature passed the bill, which then became former AS 28.35.161.
Why we find former AS 28.35.161 ambiguous with regards to whether it was intended to directly prohibit text-messaging while driving
As the above legislative history indicates, the Alaska legislature was divided over the scope of the former statute as well as which aspects of cell phone usage should be prohibited. Although the committee members never mentioned text-messaging by name (perhaps because it was less common at the time), they did discuss practices such as talking on a cell phone, reading the cell phone's caller ID display, and reading emails on a Blackberry. While most of the legislature appeared to agree that the latter should be prohibited, the decision to remove the express prohibition against "reading from the visual display on a portable cellular telephone or personal data assistant" from the final bill suggests that the legislature ultimately decided to leave resolution of these issues for a later time.
See, e.g., Minutes of House Judiciary Committee, House Bill 12, statement of Rep. Tom Anderson, 1:59:31 p.m. (Apr. 6, 2005); Minutes of House Finance Committee, House Bill 12, statement of Rep. Bill Stolze, 4:24:16 p.m. (Apr. 22, 2005); Minutes of House State Affairs Committee, House Bill 88, statement of Rep. John Coghill, 8:53:46 a.m. (Feb. 20, 2007); Minutes of Senate State Affairs Committee, discussion of Sen. Hollis French and Rep. Max Gruenberg, 10:28:12-10:29:41 a.m. (Mar. 19, 2008).
C.S.H.B. 88, 25th Leg., 1st Sess. (as offered Feb 21, 2007); C.S.H.B. 88, 25th Leg., 1st Sess. (as offered Mar. 1, 2007); 2007 House Journal 360.
In support of its argument that former AS 28.35.161 was intended to prohibit text-messaging while driving, despite the deletion of the express prohibition, the State points to the statutory exemption for "portable cellular telephones or personal data assistants being used for verbal communication." The State argues that the term "verbal communication" indicates that the legislature intended for all oral communication on these devices to be covered by the exemption, but that any written communication on these devices (such as text-messaging) would otherwise be included as part of the general prohibition against "driving a vehicle with a screen device operating."
Former AS 28.35.161(c)(1) (2009).
But, as the magistrate in Adams's case found, the term "verbal communication" in this context is ambiguous and can refer to both spoken and written forms of communication. Moreover, as Adams pointed out in oral argument, most "personal data assistants" used at the time did not have voice-telephone-call capabilities (the smart phone was only just coming into existence). Therefore, the inclusion of "personal data assistants" in the list of devices used for "verbal communication" suggests that the legislature intended "verbal communication" to include written forms of communication.
See Webster's New World College Dictionary, p. 1587 (4th ed. 2002); see also Bryan A. Garner, The Redbook, A Manual on Legal Style, p. 277 (2d ed. 2006).
Additionally, even if we agreed with the State that the legislature intended the term "verbal communication" to refer only to oral spoken communication, it does not necessarily follow that text-messaging was therefore included in the general prohibition against driving while electronic screen operating. As detailed above, the legislative history does not support such a broad reading of the former statute.
The statutory language likewise does not support the State's reading of the former statute. Notably, the former statute did not proscribe any particular conduct by the driver; instead, it proscribed a specific circumstance — having a screen device operating within the view of the driver while the driver was driving:
(a) A person commits the crime of driving with a screen device operating ifAs was repeatedly explained in the committee meetings, one of the primary purposes of the former statute was specifically to relieve the State from the burden of proving that the driver was watching the distracting visual display in order to prove criminal liability.
(1) The person is driving a motor vehicle;
(2) The vehicle has a television, video monitor, portable computer, or any other similar means capable of providing a visual display that is in full view of a driver in a normal driving position while the vehicle is in motion; and
(3) The monitor or visual display is operating while the person is driving.
Former AS 28.35.161 (2009) (emphasis added).
Minutes of House Judiciary Committee, House Bill 88, testimony of Anne Carpeneti, Assistant Attorney General, Department of Law, 1:20:38 p.m., statement of Rep. Max Gruenberg, 1:31:31 p.m., statement of Rep. Ralph Samuels,1:37:28 p.m. (Feb. 28, 2007); see also Minutes of House Judiciary Committee, House Bill 12, statement of Rep. Max Gruenberg 2:10:27 p.m. (Apr. 6, 2005).
But a prohibition against text-messaging would seemingly require more than simply proving that a device was operating in view of the driver while the driver was driving. Presumably, the legislature did not intend for drivers to be criminally prosecuted for leaving their cell phones on the dashboard (where they would be in plain view and capable of receiving text-messages) unless the drivers were actually involved in reading or responding to the text-messages the cell phone received. Under the current statute, for example, a person is guilty of the crime of driving while texting when the person is driving a motor vehicle and "the person is reading or typing a text message or other nonvoice message or communication. ..."
AS 28.35.161(a)(2).
Our primary task in construing a criminal statute is to ascertain and implement the intent of the legislature. But if, after employing the usual methods of statutory construction, the scope of a criminal statute remains unclear — that is, the legislature's intent cannot be ascertained or is ambiguous — then we are required to follow the rule of lenity and construe the statute narrowly and against the imposition of criminal liability.
Dandova, 72 P.3d at 333.
Haywood v. State, 193 P.3d 1203, 1206 (Alaska App. 2008); State v. ABC Towing, 954 P.2d 575, 579 (Alaska App. 1998).
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Here, having thoroughly reviewed the language and legislative history of former AS 28.35.161, we conclude that the legislative intent with regards to text-messaging and the former statute is, at best, ambiguous. We therefore agree with the district court that the rule of lenity applies to the former statute and that former AS 28.35.161 cannot be construed to prohibit text-messaging while driving.
Conclusion
The judgment of the district court is AFFIRMED.