Opinion
Court of Appeals No. A-10062, No. 5422.
January 7, 2009.
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-06-549 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Stephen R. West, District Attorney, Ketchikan, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Tristan Moran Jr. appeals his conviction for misdemeanor driving under the influence. He styles his claim as one of insufficient evidence — i.e., that the evidence presented at his trial did not support the jury's verdict. But the issue Moran raises is not one of fact, but rather one of law. Moran's claim really rests on the assertion that, even if one views the evidence in the light most favorable to the jury's verdict, Moran's conduct fell outside the definition of driving under the influence — more particularly, outside the definition of the concept of "actual physical control of a motor vehicle".
AS 28.35.030(a).
Viewed in the light most favorable to the verdict, the pertinent testimony at Moran's trial established the following:
On June 17, 2006, Moran was intoxicated, and he and his wife got into an argument. Moran's wife called her mother, Betty Hurliman, and Hurliman drove to the Morans' apartment. While Hurliman was en route, Moran left the apartment and went outside. He was sitting alone in his wife's Toyota 4Runner when Hurliman arrived in her car.
The Toyota was parked on a slight uphill grade. Hurliman parked her car behind the Toyota, leaving about twelve inches between the two vehicles. She could see Moran sitting in the driver's seat of the Toyota, behind the steering wheel. Soon after Hurliman parked her car, the Toyota rolled backwards and struck her car. As the collision occurred, Hurliman saw the Toyota's brake lights or tail lights come on.
Hurliman got out of her car and approached Moran in the Toyota. Moran was perched in the driver's seat, still behind the steering wheel, but with the driver's door open and his left leg hanging outside the truck, his foot on the ground.
Moran was holding some keys in his hands. Hurliman took those keys and ordered Moran out of the truck. Moran complied. Hurliman and Moran then walked back to Moran's apartment, arguing as they went. Hurliman then called police and reported that Moran was trying to drive, and that he was intoxicated.
The Toyota had a manual transmission, and its parking brake was ineffective. This meant that, because the Toyota was parked facing slightly uphill, it was likely to roll backwards if Moran took the car out of gear — either by stepping on the clutch pedal or by shifting the transmission into neutral.
When the Ketchikan police arrived, Moran admitted that he had backed the Toyota into Hurliman's car. More specifically, Moran told the police that he had gotten into an argument with his wife, that he had tried to leave, and that he had backed into another car.
The police asked Moran to perform field sobriety tests, which he failed. Moran was then arrested for DUI. Later, Moran took a breath test which showed that his blood alcohol content was .246 percent (three times the legal limit).
For purposes of the offense of driving under the influence, a person "drives" a motor vehicle if they are in actual physical control of the vehicle. See Jacobson v. State, 551 P.2d 935, 937 (Alaska 1976): "Alaska's statute falls in that class of statutes where mere exclusive control of a stationary vehicle while intoxicated is a crime."
Because the forbidden conduct is defined as "actual physical control", both this Court and the Alaska Supreme Court have held that the offense is committed when an intoxicated person has the ability to assert control over a vehicle's movement, even though they may not be "driving" or "operating" the vehicle in the usual sense of those words. As the supreme court noted in Conkey v. Division of Motor Vehicles, 113 P.3d 1235, 1238 (Alaska 2005), "Alaska courts have held drivers to be in actual physical control where they were behind the steering column and were either controlling a vehicle while it was in motion or could have put the vehicle in motion."
Conkey v. Division of Motor Vehicles, 113 P.3d 1235, 1238 (Alaska 2005); Kingsley v. State, 11 P.3d 1001, 1002 (Alaska App. 2000); Williams v. State, 884 P.2d 167, 171-72 (Alaska App. 1994); Mezak v. State, 877 P.2d 1307, 1308 (Alaska App. 1994).
Citing Williams, 884 P.2d at 171, and Department of Public Safety v. Conley, 754 P.2d 232, 236 (Alaska 1988).
In Moran's case, the evidence supports the inference that Moran got into the Toyota with the intention of putting it in motion. Moran told the police that he had been trying to leave when he backed into his mother-in-law's car. In addition, the evidence supports the inference that Moran took steps to put the Toyota in motion, either by depressing the clutch pedal or by shifting the Toyota into neutral. And finally, the evidence supports the inference that, after the Toyota began to roll backwards, Moran intervened to stop the motion of the truck by pressing the brake pedal.
This evidence, if believed, was sufficient to prove that Moran was in "actual physical control" of the Toyota.
In his brief to this Court, Moran cites two cases from other states in which defendants were acquitted of being in control of a motor vehicle even though they were sitting behind the steering wheel and the vehicles were in motion.
In the first of these cases, State v. Brister, 514 So.2d 205 (La.App. 1987), the police approached the defendant who was sitting (intoxicated) behind the wheel of a parked car. The car's engine was shut off, but the car was in neutral. As the defendant turned to talk to the police, the movement of the defendant's body inside the car apparently was enough to start it rolling forward. The car rolled ten to fifteen feet before coming to rest. Id. at 206. The Louisiana Court of Appeals reversed the defendant's conviction for driving under the influence because the court concluded that the state had failed to prove that the defendant had purposely done anything to set the car in motion. Id. at 207-08.
In the second case, People v. Edwards, 601 N.Y.S.2d 539 (N.Y. Oswego City Ct. 1993), the defendant was behind the wheel of a manual transmission vehicle, intoxicated but asleep. Again, the vehicle was not running. While the defendant was sleeping, he pressed the clutch pedal with his foot, and the vehicle rolled backward into another car. The city court held that the defendant was not guilty of driving under the influence because he had not performed any voluntary act to set the car in motion or to otherwise control it. Id. at 540.
It appears that the rationale of these decisions is inconsistent with Alaska law. In Kingsley v. State, 11 P.3d 1001 (Alaska App. 2000), this Court upheld the DUI conviction of a defendant who did nothing to try to set the vehicle in motion:
It is true that [the Alaska Supreme Court's decision in] Conley [ v. Division of Motor Vehicles] and [this Court's decision in] Mezak [ v. State] involved defendants who did something to try to put their vehicles in motion. But we 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.
But in any event, Moran's case is distinguishable from the two cases he cites because, viewing the evidence in the light most favorable to the jury's verdict, Moran did intend to set the Toyota in motion, and he took steps to do so. For these reasons, we conclude that Moran's conduct fell within the definition of "actual physical control" of a motor vehicle.
Accordingly, the judgement of the district court is AFFIRMED.