Opinion
Court of Appeals No. A-13100 No. 6940
05-05-2021
JAMES STEPHEN WASHAM, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-16-02259 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Palmer, David L. Zwink, Judge. Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
James Stephen Washam was convicted, following a bench trial, of driving under the influence (DUI). Washam appeals his conviction, arguing that the trial court erred in denying his motion to suppress evidence obtained after a police officer opened Washam's car door during the DUI investigation. According to Washam, the officer lacked reasonable suspicion to open the car door, and the officer's conduct therefore constituted an unlawful search. Washam also argues that there was insufficient evidence to convict him of knowingly operating or being in actual physical control of his vehicle.
For the reasons discussed in this opinion, we reject Washam's claims of error and affirm his conviction.
Background facts and proceedings
In October 2016, a citizen called the police to report an intoxicated man "urinating out of his vehicle" in the parking lot of the Wasilla Fred Meyer. When officers arrived, they found a vehicle matching the caller's description with a puddle next to it consistent with the report. The sole occupant of the vehicle, later identified as Washam, also matched the caller's description. Washam, who was sitting in the driver's seat of his vehicle with his seatbelt buckled and the key in the ignition, lowered his window at the officers' approach. Through the open window, the officers observed that Washam had bloodshot and watery eyes, slurred speech, and a very strong odor of alcohol, and there was an empty or nearly empty vodka bottle on the floorboard.
Washam did not respond to one of the officer's questions about how much he had had to drink or whether he had identification. When the officers asked Washam to get out of his vehicle so they could investigate his level of impairment, Washam did not comply; instead, he simply stared at them. After repeated requests, the officers opened Washam's door and succeeded in convincing him to exit the vehicle. Once Washam finally stepped out of the vehicle, he had "a hard time standing up," and had to lean against the vehicle for support. A subsequent breath test revealed a breath alcohol content of 0.251 percent.
The State charged Washam with driving under the influence. Prior to trial, Washam sought to suppress the evidence against him, arguing inter alia that opening his car door constituted an unlawful search.
At an evidentiary hearing on Washam's motion to suppress, and later at trial, Washam testified that after completing his shopping at Fred Meyer, he was unable to start his vehicle. Although the heater and radio came on — and although he was later able to operate the power windows when the officers arrived — the engine would not turn over. Instead, he just heard a clicking sound. Convinced that his vehicle was inoperable, Washam started drinking. Washam also testified that he and his family went to pick up the vehicle from impound the day after his arrest, and the vehicle required a jumpstart with "heavy duty industrial strength jumper cables."
The court denied Washam's motion to suppress. The court concluded that the officers had reasonable suspicion to open Washam's car door based on the citizen's report and the officers' observations.
Following a bench trial, the court found Washam guilty of driving under the influence, under the theory that he was in actual physical control of his vehicle and, within four hours of operating the vehicle, a chemical test showed a breath alcohol content of .08 or more. The court found credible Washam's testimony that he drank in the vehicle after exiting Fred Meyer. But the court also found that Washam was in actual physical control of the vehicle at that time; he was seated in the driver's seat with his seatbelt buckled and the key in the ignition "someplace between on and start." The court also found that the vehicle was reasonably capable of being rendered operable "with fairly minimal effort."
AS 28.35.030(a)(2).
Washam now appeals his conviction.
The officers had reasonable suspicion to support opening Washam's car door
Washam argues that the trial court erred in concluding that the officers had reasonable suspicion to open his car door, and he asks us to revisit or distinguish our holding in Stewart v. State that reasonable suspicion, rather than probable cause, is sufficient to open a driver's door during a traffic stop.
See Stewart v. State, 763 P.2d 515, 516 (Alaska App. 1988); cf. Simmons v. State, 435 P.3d 975, 977 n.1 (Alaska App. 2018) (noting that under the United States Constitution, police officers have the authority to order a driver to exit the vehicle during a traffic stop, regardless of the specific circumstances, but that Alaska courts have not yet determined whether the Alaska Constitution permits the same broad authority (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977))).
In Stewart, we held that the limited intrusiveness of opening a vehicle door during a traffic stop warranted treating it as an investigative stop, for which an officer need only have reasonable suspicion rather than probable cause. Thus, when an officer came upon Stewart's vehicle pulled over on the side of the Parks Highway with its headlights on, its engine running, and the driver slumped over in the driver's seat, reasonable suspicion justified the officer's decision to open the driver's door to determine whether the driver was impaired or in need of aid.
Stewart, 763 P.2d at 516; see also Anchorage v. Cook, 598 P.2d 939, 942 (Alaska 1979) (holding that it was "entirely reasonable" for the officer to open the door to awaken the defendant and request that he exit the vehicle, when the defendant was asleep in the front seat of the car and the car had its front bumper "hung up" on a guardrail).
Stewart, 763 P.2d at 516-17.
Washam first attempts to distinguish the facts of his case from the rule we announced in Stewart. He notes that, unlike in Stewart, the officers here did not observe Washam's vehicle running and did not need to open the door to initiate contact with him. But while Washam's vehicle was not running when the officers contacted him, he was seated in the driver's seat with his seatbelt on and the key in the ignition. As the trial court found, these circumstances, coupled with the citizen's report and the officers' observations of impairment, established "a substantial possibility that conduct giving rise to a public danger ha[d] occurred, [was] occurring, or [was] about to occur." The fact that Washam's engine was not running does not undercut reasonable suspicion under these circumstances — especially since there was no outward sign that Washam's car was experiencing mechanical difficulties, and Washam never told the officers that the vehicle would not start. As in Stewart, the minimally intrusive action of directing Washam to get out of his vehicle, and opening the door to facilitate his exit when Washam did not comply with the officers' requests, was justified by reasonable suspicion that he had committed or was committing the offense of driving under the influence.
Beltz v. State, 221 P.3d 328, 337 (Alaska 2009) (emphasis omitted) (quoting Hartman v. State, Dep't of Admin., Div. of Motor Vehicles, 152 P.3d 1118, 1122 (Alaska 2007)).
Cf. State, Dep't of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232, 236 (Alaska 1988) (concluding that, in the context of an administrative license revocation proceeding, a hearing officer was entitled to infer that a vehicle was operable in the absence of evidence to the contrary).
See Stewart, 763 P.2d at 517 ("The interference with Stewart's right to privacy [by opening his car door] was minimal when weighed against such important societal interests" as ensuring that Stewart did not pose a public danger or need immediate medical attention.); see also Anchorage v. Murdoch, 2002 WL 1022074, at *2 (Alaska App. May 22, 2002) (unpublished) (concluding that an officer had the authority to direct a driver to exit his vehicle and move a short distance away to perform field sobriety tests because such actions were minimally intrusive when weighed against the reasonable suspicion that the driver may have been impaired).
Washam also asks us to reconsider our holding in Stewart and to require probable cause, rather than reasonable suspicion, before an officer may open a car door during a traffic stop. But the Alaska Supreme Court has subsequently relied on our holding in Stewart in deciding a case with "nearly identical" facts to Stewart. Because the supreme court has endorsed our holding, we decline to revisit it.
See Sather v. State, Div. of Motor Vehicles, Dep't of Pub. Safety, 776 P.2d 1055, 1056 (Alaska 1989).
Finally, Washam argues that Stewart is contrary to the United States Supreme Court's holding in United States v. Jones. In Jones, the Supreme Court held that a search occurs when the government "physically occupie[s] private property for the purpose of obtaining information" — there, by installing a GPS device on a vehicle to monitor the vehicle's movements. But Washam does not cite any case applying Jones to circumstances like those in this case — where the intrusion on the vehicle was brief and part of an ongoing investigative stop, rather than a warrantless covert information-gathering operation. Indeed, the existence of a valid exception to the warrant requirement in Washam's case — i.e., reasonable suspicion to support an investigative stop — appears to be a dispositive distinction from the circumstances in Jones.
United States v. Jones, 565 U.S. 400 (2012).
Id. at 404.
Id. at 413 (noting that the issue of whether the intrusion was reasonable and thus not subject to the warrant requirement was not before the Court); see also Terry v. Ohio, 392 U.S. 1, 20 (1968) ("But we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.").
Accordingly, we conclude that the district court did not err in finding that reasonable suspicion supported the officers' act of opening Washam's car door.
There was sufficient evidence to support the trial court's finding that Washam was in actual physical control of his vehicle
Washam also challenges the sufficiency of the evidence that he operated his vehicle. When we review a claim that the evidence was insufficient to support the defendant's conviction, we are required to view the evidence — and all reasonable inferences from the evidence — in the light most favorable to the verdict. The question is then whether the evidence would support a conclusion by a reasonable mind that Washam was guilty beyond a reasonable doubt.
Shayen v. State, 373 P.3d 532, 535 (Alaska App. 2015) (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)). Washam was convicted after a bench trial, and the Alaska Supreme Court has described the evidentiary sufficiency test in this context as a "substantial evidence" standard. See Helmer v. State, 608 P.2d 38, 39 (Alaska 1980). But this "substantial evidence" standard is the same test that appellate courts apply to evaluate the sufficiency of the evidence to support a jury verdict. Shayen, 373 P.3d at 535.
A person commits the offense of driving under the influence "if the person operates or drives a motor vehicle" while under the influence of one or more qualifying substances. As used in this statute, the terms "operate" and "drive" are defined "more broadly than the usual sense of those words." In particular, a person is "operating" when the person is in "actual physical control" of a vehicle.
AS 28.35.030(a).
Conkey v. State, Dep't of Admin., Div. of Motor Vehicles, 113 P.3d 1235, 1238 (Alaska 2005).
State, Dep't of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232, 234-36 (Alaska 1988); Jacobson v. State, 551 P.2d 935, 938-39 (Alaska 1976); see also AS 28.90.990(a)(9) (defining "driver" as "a person who drives or is in actual physical control of a vehicle").
The Alaska Supreme Court has upheld a finding that a driver was in "actual physical control" of a motor vehicle under circumstances similar to Washam's case. In State, Department of Public Safety, Division of Motor Vehicles v. Conley, the supreme court concluded that a driver was in actual physical control of her vehicle when she was seated in the driver's seat behind the steering wheel, had possession of the ignition key, and attempted to put the key in the ignition — even though the engine was not running and the vehicle did not move.
Conley, 754 P.2d at 236.
We have applied Conley in analogous circumstances. For instance, in Kingsley v. State, we concluded that a defendant was in actual physical control of a vehicle stuck in a snow berm, where the defendant was the sole occupant of the vehicle, he was sitting behind the steering wheel, and he had the keys to the vehicle in his pocket—even though the engine was not running, the defendant made no active attempt to start the engine after he began drinking, and the vehicle was apparently incapable of moving without assistance.
Kingsley v. State, 11 P.3d 1001, 1002-03 & n.2 (Alaska App. 2000); see also, e.g., Lathan v. State, 707 P.2d 941, 943 (Alaska App. 1985) (upholding a DUI conviction, even though the defendant began drinking only after his car became inextricably stuck in the mud and it was no longer capable of moving under its own power).
Like the defendants in Conley and Kingsley, here the trial court found that Washam was the sole occupant of the vehicle, and was sitting in the driver's seat with his seatbelt buckled and the key in the ignition when the officers contacted him. Washam does not challenge these factual findings. Rather, he argues that his case is distinguishable from our prior decisions because Washam "was not trying to start his vehicle, and had not even attempted to turn the key in the ignition since much earlier that day, before he began drinking."
But this is the same argument we rejected in Kingsley. Washam has not asked us to overturn Kingsley or any of our other prior decisions applying the supreme court's decision in Conley. Based on these prior decisions, we conclude that there was sufficient evidence that Washam was in actual physical control of his vehicle.
Kingsley, 11 P.3d at 1003.
See Wassillie v. State, 411 P.3d 595, 611 (Alaska 2018) (recognizing that a party seeking to overturn precedent "bears a heavy threshold burden of showing compelling reasons for reconsidering the prior ruling" (quoting Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004))).
Under Conley, when the State relies on a theory of actual physical control rather than more traditional modes of driving or operating under the influence, the State must additionally prove that the defendant's vehicle was either operable or "reasonably capable of being rendered operable." In this case, Washam does not appear to contest that his car was "reasonably capable of being rendered operable." Although Washam's briefing is unclear, Washam instead appears to argue that even if his vehicle was objectively reasonably capable of being rendered operable, he did not knowingly exercise actual physical control over the vehicle because he subjectively believed that it could not be started.
See Conley, 754 P.2d at 236. Although the supreme court announced this requirement in the context of an administrative license revocation proceeding, we assume, as we have in other cases implicating this issue, that Conley's requirement of operability applies in criminal cases as well as to license revocation actions. See, e.g., Kingsley, 11 P.3d at 1004.
See Wall v. State, 203 P.3d 1170, 1173 (Alaska App. 2009) (holding that a car was reasonably capable of being rendered operable despite suffering "a flooded engine, or a dead battery, or both"); see also Axford v. State, 1992 WL 12153171, at *3 (Alaska App. May 13, 1992) (unpublished) (holding that "a car with a dead battery is reasonably capable of being rendered operable, because it may be jump-started with relative ease at the scene and then sent on its way"); Blanche v. Anchorage, 1998 WL 106156, at *1 (Alaska App. Mar. 11, 1998) (unpublished) (concluding that a car was reasonably capable of being rendered operable, even though the battery was low and the car was out of gas, where the car "needed only a jump and perhaps some gas to start").
We rejected a similar argument that "reasonably capable of being rendered operable" includes a subjective knowledge component in an unpublished case, McLean v. State. In McLean, we observed:
McLean v. State, 1993 WL 13156695 (Alaska App. Apr. 21, 1993) (unpublished).
The Alaska Supreme Court has held that an intoxicated driving offense requires a car that is "reasonably capable of being rendered operable." The supreme court did not elaborate on its definition of this requirement. However, this language seems to involve an objective finding of the condition of the car and not a determination of the knowledge or skill of the particular defendant. Therefore, McLean was not entitled to an instruction requiring the jury to consider whether McLean knew how to [render the car operable].
Id. at *3 (footnote omitted) (quoting Conley, 754 P.2d at 236).
Washam provides no basis for reaching a different conclusion in this case. Although he argues that there was insufficient evidence to establish that he was "knowingly operating" his vehicle while under the influence, he does not further expound upon this point, or explain why a "knowingly" mental state extends beyond the actus reus of the crime — actual physical control of the vehicle — to encompass the circumstance that the vehicle be operable or "reasonably capable of being rendered operable." That is, Washam has not cited any authority for attaching a knowledge requirement to the objective reasonable operability requirement announced by the supreme court.
See State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002) (recognizing that the offense of driving while intoxicated requires proof, inter alia, that a person "knowingly operated or assumed physical control of a motor vehicle").
For all these reasons, we conclude that there was sufficient evidence to support Washam's conviction.
Washam also challenges the trial court's finding that Washam's failure to attempt to jumpstart his vehicle when it first failed to start was "a gross deviation from the standard of care a reasonable person would observe in the situation." We agree with Washam that the issue before the trial court was not whether Washam theoretically could have or should have taken additional actions as a car owner to return his vehicle to a driveable condition. Rather, the issue was whether the State had proven the elements of the offense of driving under the influence — i.e., whether Washam knowingly operated his vehicle while under the influence.
But the court's finding was also ultimately irrelevant to its conclusion that Washam was in actual physical control of the vehicle, and that the vehicle was reasonably capable of being rendered operable. Accordingly, since this extraneous finding did not affect the court's verdict, we conclude that any error was harmless. See Love v. State, 457 P.2d 622, 631 (Alaska 1969).
Conclusion
The judgment of the district court is AFFIRMED.