Patterson v. Municipality of Anchorage (8/2/91) ap-1150
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
LAMAR PATTERSON, )
)
Appellant, ) Court of
Appeals No. A-3660
) Trial
Court No. 3AN-M90-1017CR
v. )
) O P I N I
O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1150 - August 2, 1991]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, William H. Fuld, Judge.
Appearances: Stuart G. Ross, Gorton &
Oberly, Anchorage, for Appellant. Michael R.
Stahl, Assistant Municipal Prosecutor, and
Richard L. McVeigh, Municipal Attorney,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Lamar Patterson was originally charged with driving
while intoxicated (DWI), driving while license revoked (DWLR),
and refusal to submit to a chemical test of his breath (refusal).
Prior to trial, the prosecution dismissed the DWI and DWLR
charges; Patterson was tried and convicted on the refusal charge.
On appeal, Patterson contends that the district court erred in
refusing to instruct the jury that the prosecution was required
to prove that Patterson was driving when he was arrested for DWI.
We reverse.
The relevant facts are undisputed. A van containing
Patterson and several other people backed out of an icy driveway
in Anchorage and hit a passing car. The occupants of the van,
including Patterson, got out. Patterson appeared to be
intoxicated. The police were summoned.
When Officer Dennis Gum arrived at the scene, he
learned from a bystander that Patterson had gotten out of the
driver's side of the van. Gum spoke with Patterson, who claimed
that his wife had been driving. After speaking with other
witnesses and conducting a brief inspection of the accident
scene, however, Gum decided that Patterson had been driving and
arrested him for DWI and DWLR. Following his arrest, Patterson
refused to submit to a breath test; the refusal charge was then
added to the charges of DWI and DWLR.
Immediately before Patterson's trial, the prosecution
dismissed the DWI and DWLR charges because it believed that it
would be unable to prove beyond a reasonable doubt that Patterson
was driving on the night of his arrest. Patterson proceeded to
trial on the refusal charge. At trial, he proposed an
instruction informing the jury that, to establish the crime of
refusal, the prosecution was required to prove, among other
things, that Patterson had been driving. District Court Judge
William H. Fuld declined to give the proposed instruction and
precluded Patterson from defending against the refusal charge on
the ground that he had not been driving.
Patterson challenges the trial court's ruling, arguing
that he was under no legal duty to submit to a breath test unless
he had actually operated a motor vehicle. Patterson was
convicted of violating Anchorage Municipal Code (AMC) 09.28.022C,
which provides:
Refusal to submit to the chemical test
of breath authorized by AMC 09.28.021A is a
mis-demeanor.
This provision hinges criminal liability for refusing to submit
to a test on the provisions of the municipality's implied consent
ordinance, AMC 09.28.021A. The implied consent provision, in
turn, extends the duty to submit to a breath test only to "[a]
person who operates, drives or is in actual physical control of a
motor vehicle . . . .":
A person who operates, drives or is in actual
physical control of a motor vehicle within
the municipality or who operates an aircraft
as defined by AMC 09.28.020E.1 or who
operates a watercraft as defined by AMC
09.28.020E.2 shall be considered to have
given consent to a chemical test or tests of
his or her breath for the purpose of
determining the alcoholic content of his or
her blood or breath if lawfully arrested for
an offense arising out of acts alleged to
have been committed while the person was
operating, driving or in actual physical
control of a motor vehicle or operating an
aircraft or a watercraft while intoxicated.
The test or tests shall be administered at
the direction of a law enforcement officer
who has reasonable ground to believe that the
person was operating, driving, or in actual
physical control of a motor vehicle or
operating an aircraft or a watercraft in the
municipality while intoxicated.
Despite the express wording of the implied consent
ordinance, the trial court in this case ruled that the question
of whether Patterson had been driving was relevant only to the
issue of the lawfulness of his arrest for DWI and that, on this
score, the municipality was obligated only to show probable cause
to support the conclusion that Patterson had been driving. In
reaching this conclusion, the court apparently relied on the
latter part of the ordinance, which empowers a breath test to be
administered by an officer "who has reasonable ground to believe
that the person was operating, driving, or in actual physical
control of a motor vehicle . . . ."
The trial court correctly recognized that a lawful
arrest for DWI -- that is, one based on probable cause -- was a
prerequisite to the admission of evidence of Patterson's refusal
to submit to a chemical test. If Gum had lacked probable cause
to arrest Patterson, he would not have been entitled to
administer a breath test under AMC 09.28.021A. In the absence of
probable cause, Patterson would have been entitled to have
evidence of his refusal suppressed, regardless of whether he had
actually been driving or intoxicated. See Skuse v. State, 714
P.2d 368, 372 (Alaska App. 1986). The issue of probable cause
for arrest was properly a question of law for the trial court to
decide and was not an element of the offense to be submitted to
the jury. See Brown v. State, 739 P.2d 182, 187 (Alaska App.
1987); Skuse, 714 P.2d at 372.
Although Judge Fuld properly recognized the need for
the court to resolve the issue of probable cause as a question of
law, his ruling went further; the judge went on to rule that the
question of whether Patterson was driving could be considered
only in connection with the issue of probable cause. To this
extent, the district court's ruling confused an officer's
authority to request a DWI arrestee to take a test with the
arrestee's duty to submit. In contrast to the legal question of
whether Gum acted properly in requesting Patterson to submit to a
breath test, the issue of whether Patterson had a duty to take
the test once requested (and whether he breached this duty by
refusing) is a question of fact amounting to a basic element of
the crime charged. Under AMC 09.28.022C, Patterson could be held
criminally liable only for refusing to take a test as required
under AMC 09.28.021A. Under the plain language of AMC
09.28.021A, implied consent triggers the obligation to submit to
a test; and implied consent arises only from the conduct of
operating, driving, or being in actual physical control of a
motor vehicle. Patterson's duty to submit to a breath test thus
hinged on whether he operated, drove, or was in actual physical
control of his van.
The municipality nevertheless contends that this
court's opinion in Brown v. State, 739 P.2d 182 (Alaska App.
1987), holds that driving is not an element of the offense of
refusal to submit to a chemical test. We disagree. Brown was
convicted of refusal under a state statute, AS 28.35.032(f),
which is essentially identical to AMC 09.28.022C. Brown conceded
that he had been driving but denied being intoxicated. He
appealed the denial of his motion for a judgment of acquittal,
which was based on the assertion that the state did not prove
that he drove while intoxicated.
In deciding Brown, we described the issue as follows:
Brown asks us to hold that a person cannot be
found guilty of refusing to submit to a
breathalyzer examination unless a jury first
finds beyond a reasonable doubt that he
operated a motor vehicle under the influence
of intoxicating liquor. In other words,
Brown argues that it is improper to have a
jury acquit on the driving while intoxicated
charge and nevertheless return a guilty
verdict on a refusal charge.
Id. at 183 (citation and footnote omitted).
We rejected Brown's argument. We held:
[I]n order to convict a person of refusing to
submit to a chemical test of his or her
breath, the state must prove that the
individual in question knew or perhaps should
have known that the breath test was sought as
evidence in connection with an investigation
of his or her driving while intoxicated, and,
second, that with that culpable mental state,
he or she declined the test. Consequently,
the trial court did not err in refusing to
instruct the jury that it must find that
Brown operated a motor vehicle while under
the influence of intoxicating liquor as a
condition prerequisite to convicting him of
refusal to provide a chemical test of his
breath.
Id. at 186.
The municipality reads the foregoing passage from Brown
as setting forth an exhaustive list of the elements of the crime
of refusal. This reading, however, is mistaken. In Brown, we
recited the elements of refusal in the context of a defendant who
acknowledged that he operated a motor vehicle. In deciding
Brown, this court did not purport to consider whether driving,
operation, or physical control of a motor vehicle should be an
element of the offense of refusal.
Unlike the situation in Brown, proof that a person who
has been requested to submit to a breath test was actually
driving, thereby impliedly consenting to a test, is a direct
element of the offense of refusal, not merely an element of the
related offense of DWI. As we have indicated, the gravamen of
the offense is the refusal to submit to a breath test that one
has impliedly consented to take; implied consent is given by the
act of driving, operating, or being in actual physical control of
a motor vehicle.
Given the plain language of AMC 09.28.021A, which bases
implied consent on actual control of a motor vehicle, there seems
to be little basis for extending implied consent beyond
situations involving actual control. Implied consent has often
been regarded as a legal fiction. The concept is fictitious in
the sense that one who drives does not actually consent to submit
to a breath test, and the act of driving is not one from which
such consent could logically be inferred. To our knowledge,
however, this legal fiction has always been predicated on the act
of driving, operation, or control; it has never been triggered by
the mere appearance -- that is, objectively-based probable cause
-- that the defendant was driving.
Moreover, requiring the prosecution to prove driving or
actual control would in no way conflict with the concerns that
led us to decide in Brown that the prosecution need not prove
intoxication as an element of refusal. The primary purpose of
the implied consent doctrine and the related mandatory breath
test requirement is to enable the government to preserve valuable
evidence of a driver's intoxication. By attaching the same
penalties to refusal that apply to DWI, the legislature sought to
eliminate any incentive for an arrestee to decline a breath test
in order to evade conviction for DWI. This legislative purpose
would obviously be frustrated if the prosecution were required to
prove not only the elements of refusal, but also that the
arrestee was intoxicated: faced with the choice of submitting to
a breath test and being convicted of DWI, or refusing and being
convicted of refusal, an arrestee would have a strong incentive
to choose refusal, since the refusal would hamper not only the
prosecution's efforts to prove DWI but also its ability to
convict for the refusal.
In contrast, requiring the prosecution to prove that a
person charged with refusal was actually driving does not
frustrate the basic purpose of the refusal statute. Refusing to
submit to a breath test does nothing to weaken the prosecution's
case on the issue of whether an arrestee was driving. Nor does a
refusal facilitate an arrestee's ability to establish that he was
not driving. Requiring the prosecution to prove driving as an
element of refusal gives DWI arrestees no added incentive to
refuse breath tests.
We thus conclude that proof of a defendant's driving,
operation, or actual physical control of a motor vehicle is a
necessary element of the offense of refusal to submit to a breath
test under AMC 09.28.022C. The trial court in this case erred in
reaching a contrary conclusion and in precluding Patterson from
arguing, in defense to the charge of refusal, that he had not
actually driven.
The conviction is REVERSED.1
_______________________________
1. Our reversal of Patterson's conviction makes it
unnecessary for us to consider Patterson's remaining claims.
