Opinion
Court of Appeals No. A-9385.
May 2, 2007.
Appeal from the Superior Court, First Judicial District, Petersburg, Michael A. Thompson, Judge, Trial Court No. 1PE-04-138 Cr.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION
In the early morning hours of September 24, 2004, Frederick W. Damer III radioed the Petersburg harbor master to announce that he was going to tie his boat to the city dock. Damer sounded intoxicated, so the harbor master contacted the Petersburg police. The harbor master, accompanied by a Petersburg police officer, went out to the dock to wait for the boat. They could see a single boat in the distance, and this boat appeared to be operating erratically.
The harbor master radioed the boat, and when the operator (Damer) spoke again to the harbor master, his voice was slurred and his speech was rambling and occasionally incoherent. The harbor master, now accompanied by two police officers, took the harbor skiff and made contact with the boat — the fishing vessel Artemus.
When the two officers boarded the Artemus, they found Damer at the controls of the vessel. He was obviously intoxicated, and the officers arrested him for operating the vessel under the influence. Later, when the officers asked Damer to submit to a breath test, he refused.
Because Damer had prior convictions for DUI, he was indicted for felony DUI and felony breath-test refusal.
AS 28.35.030(n) and AS 28.35.032(p), respectively.
Following his indictment, Damer filed a motion asking the superior court to suppress most of the evidence against him. Damer claimed that his boat had been outside the territorial boundaries of Petersburg, and that the police officers who arrested him had therefore exceeded their authority. Damer argued that all evidence stemming from this arrest should be suppressed.
At the evidentiary hearing on Damer's motion, the parties presented conflicting evidence as to the location of Damer's boat at the time of the arrest. If Damer's testimony was credited, his boat lay outside the boundaries of Petersburg; but if the officers' testimony was credited, Damer's boat was within the city boundaries. After hearing this evidence, Superior Court Judge Michael A. Thompson found that Damer's boat had been within the city boundaries. On this basis, he upheld the legality of the arrest.
Following Judge Thompson's ruling, Damer pleaded no contest to the felony breath-test refusal charge, reserving his right to pursue his illegal arrest argument on appeal. The State dismissed the felony DUI charge.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
The position of Damer's fishing vessel at the time of his arrest is a question of historical fact. As an appellate court, we are obliged to uphold Judge Thompson's finding on this issue unless we are convinced that it is clearly erroneous. However, to decide the legality of the arrest in this case, it is not necessary to determine whether Damer's boat was inside or outside the geographic boundaries of Petersburg.
Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981); Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978).
AS 28.35.225 declares that all law enforcement officers in this state are authorized to enforce the provisions of Title 28. In State v. Burke, 714 P.2d 374 (Alaska App. 1986), this Court held that any member of the police force of an incorporated city or borough is a "law enforcement officer" for purposes of this statute. Id. at 376. We then interpreted AS 28.35.225 to mean that a city or borough police officer may lawfully perform an investigative stop or an arrest for the offense of driving under the influence (AS 28.35.030) "regardless . . . of whether the offense was committed within the territorial limits of the [government] which employed the officer, [and regardless] of whether the vehicle is [within those] territorial limits at the time [of] the stop." Id.
Our decision in Burke resolves the issue that Damer preserved for appeal. Regardless of the exact location of Damer's boat, the Petersburg police officers were authorized to arrest Damer for operating a watercraft under the influence once they had probable cause to believe that he was committing, or had just committed, that offense.
(Under AS 12.25.030(a)(1), the normal rule is that a police officer may arrest for a person for a misdemeanor only if the misdemeanor has occurred in the officer's presence. However, AS 12.25.033 eliminates this requirement if the arrest is for operating a motor vehicle, an aircraft, or a watercraft under the influence within the preceding eight hours.)
Accordingly, we affirm Damer's conviction for felony breath-test refusal.
Damer also raises an issue involving his sentencing. Felony breath-test refusal is a class C felony. Because Damer was a third felony offender, he faced a presumptive term of 3 years' imprisonment for this offense.
AS 28.35.032(p).
Former AS 12.55.125(e)(2) (pre-March 2005 version).
Damer proposed one mitigating factor: that his conduct was among the least serious within the definition of his offense. Judge Thompson found that Damer had failed to prove his proposed mitigator, and Damer challenges that ruling on appeal.
See AS 12.55.155(d)(9), which has since been renumbered (d)(8).
However, Damer's arguments on this point — both the arguments he addressed to Judge Thompson at the sentencing hearing, and the arguments that he addresses to this Court on appeal — are all directed toward showing that his conduct of operating a watercraft under the influence was among the least serious. Damer points to the fact that his boat was alone on the water, and thus he was apparently not endangering anyone except himself and the one man who accompanied him on the boat. Damer also points to the fact that his boat had two sets of controls, thus theoretically allowing his companion to take control of the vessel if an emergency had arisen on account of Damer's intoxication. And, finally, Damer points out that he did not resist or try to flee the police; his boat was boarded, and he was arrested, without incident.
But, as explained above, Damer was not convicted of operating a w atercraft under the influence. Rather, under the terms of Damer's plea agreement with the State, the felony DUI charge was dismissed and Damer pleaded no contest to felony breath-test refusal. Thus, even if all of Damer's assertions were true, these assertions have no bearing on whether Damer's act of breath-test refusal was among the least serious within the definition of that offense. Damer has never offered an argument pertinent to the offense for which he was convicted and sentenced — felony breath-test refusal.
In Parrish v. State, 132 P.3d 1172 (Alaska App. 2006), this Court confronted the same factual situation. The defendant in Parrish was initially charged both with felony operating a watercraft while intoxicated and felony breath-test refusal, but the State dismissed the DUI charge and allowed the defendant to plead guilty to breath-test refusal. Id. at 1173. At his sentencing, the defendant proposed the "conduct among the least serious" mitigator, but all of the defendant's arguments were aimed at showing that his intoxicated operation of the watercraft was among the least serious. The defendant never addressed the issue of whether his act of refusing the breath test was among the least serious conduct within the definition of that offense, nor did he ask his sentencing judge to rule on this issue. Id. at 1174-75.
We held that, under these circumstances, the defendant "failed to preserve his claim that [the superior court] should have found mitigator (d)(9) with regard to [the] offense of breath test refusal." Id. at 1175. We reach the same conclusion in Damer's case.
The judgement of the superior court is AFFIRMED.