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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
)
Appellant, ) Court of
Appeals No. A-4145
) Trial
Court No. 1CR-S90-579CR
v. )
) O P I N I
O N
)
KARL ALBIN BENOLKEN, )
)
Appellee. ) [No. 1255 - October 9, 1992]
______________________________)
Appeal from the District Court of the State
of Alaska, First Judicial District, Craig,
George L. Gucker, Judge.
Appearances: Stephen R. West, Assistant
District Attorney, Ketchikan, and Charles E.
Cole, Attorney General, Juneau, for
Appellant. Theresa R. Chenhall, Assistant
Public Defender, Ketchikan, and John B.
Salemi, Public Defender, Anchorage, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Fifteen-year old Carl Albin Benolken was charged with
driving without a valid operator's license after he drove his all
terrain three-wheeler on a public roadway in Craig, Alaska, on
December 29, 1990. AS 28.15.011(b). District Court Judge George
L. Gucker dismissed the charge, concluding that the driver of a
three-wheeler is not required to have a driver's license. The
state appeals from this order of dismissal.
Alaska Statute 28.15.011(b) reads:
(b) Every person exercising the
person's privilege to drive, or exercising
any degree of physical control of a motor
vehicle upon a highway, vehicular way or
area, or other public property in this state,
is required to have in the possession of the
person a valid Alaska driver's license issued
under the provisions of this chapter for the
type or class of vehicle driven, unless
expressly exempted by law from this
requirement.
Alaska Statute 28.15.041(a) authorizes the commissioner of public
safety to provide by regulation for the type or class of vehicle
for which a driver must be licensed.1 Former 13 AAC 08.150, in
effect at the time Benolken was cited, specified which vehicles
were subject to driver's license requirements:
(a) An applicant for a classified
license, or for an endorsement to a
classified license must submit to an
examination appropriate to the class of
license or endorsement for which the person
is applying.
(b) The classifications of driver
licenses, and the vehicles which a holder of
each class or subclass of license may
operate, are as follows:
(1) Class A license -- motor-
driven cycles, cars, buses, trucks and towed
vehicles. . . .
(2) Class B license -- Motorized
cycles. A person holding a Class "B"
driver's license may operate the vehicles
designated in one of the following
subclassifications as indicated upon the
person's license:
(A) B-1: motorcycles, motor-
driven cycles, and motorized bicycles, singly
or in combination with trailers or sidecars
designed to be used with these vehicles;
(B) B-2: motor-driven cycles
and motorized bicycles.
(Emphasis added).
The state contends Benolken was required to have
a driver's license because three-wheelers fall under the
definition of "motorcycle" and "motor-driven cycle"2 as used in
13 AAC 08.150(b) and the definition of "vehicle" as used in AS
28.15.011(b).3
Benolken contends a three-wheeler does not qualify as a
motorcycle, motor-driven cycle, or vehicle because three-wheelers
are designed and constructed for off-road usage and are therefore
not subject to registration laws. See AS 28.10.011; 13 AAC
40.010(30).4 Benolken further notes that the Chief of Driver
Services for the Division of Motor Vehicles (DMV) testified that
the DMV will not license three-wheelers. Finally, Benolken
points out that in State v. Straetz, 758 P.2d 133 (Alaska App.
1988), we stated that "under AS 28.15.011 the driver of a three-
wheeler is not required to have a driver's license." Id. at 134.
We agree with the state's contention that a three-
wheeler falls under the definition of motorcycle in
13 AAC 08.150. The DMV's failure to specifically license three-
wheelers does not exempt drivers of three-wheelers from the
requirement of AS 28.15.011(b), that before driving on a highway
or vehicular way they procure a license for the type or class of
vehicle that encompasses three-wheelers. Under 13
AAC 08.150(b)(2), that type or class is "motorcycle." The
underlying purpose of AS 28.15.011 is to ensure that all drivers
are capable of safely driving on the highways and vehicular ways
and areas across the state. Requiring the drivers of three-
wheelers to be licensed when traveling on a highway comports with
this purpose.
We likewise reject Benolken's argument that we should
look to the registration laws for guidance in resolving this
issue. The registration laws are designed to ensure that a
vehicle is safe to drive, whereas driver's license laws are
designed to ensure that the driver is capable of driving in
public. In our view, unlicensed three-wheeler operators should
not be permitted to drive with impunity on the Alaska highways
merely because the legislature does not require them to be
licensed to drive the vehicles off road.
Benolken's reliance on State v. Straetz is not
persuasive. In Straetz, the defendant was charged with driving
while license was in suspended status (DWLS) [for failure to
obtain SR-22 insurance] after he drove his three-wheeler on a
public street. The trial court dismissed the case and the state
appealed. Id. at 134.
On appeal, Straetz argued that he did not need a
license to drive the three-wheeler. State v. Stagno, 739 P.2d
198, 201 (Alaska App. 1987). According to Straetz, because it
was legal to drive an off-road vehicle such as a three-wheeler
without a license, the legislature could not have intended to
penalize him for having done so. Id. This court vacated the
order of dismissal, stating:
While it is true that under AS 28.15.011
the driver of a three-wheeler is not required
to have a driver's license, the express
and unambiguous terms of AS 28.15.291(a)
prohibited Straetz from driving any motor
vehicle on a highway once his operator's
license was suspended. The prohibition did
not hinge on the nature of the motor vehicle,
but rather on Straetz's demonstrated danger
as a driver, as evidenced by his license
suspension. Alaska Statute 28.15.291(a)
creates no exception that would allow a
driver whose license has been suspended to
drive on a highway in a motor vehicle that
does not require a licensed driver. The
statute, on its face, applies to all motor
vehicles. . . . We see nothing irrational in
the legislature's apparent conclusion that a
person whose license has been suspended
should be prohibited from driving any motor
vehicle on a highway, even one for which an
operator's license would not otherwise be
required.
Id. at 134-35 (emphasis added).
In Straetz, we accepted as correct the defendant's
contention: that "the driver of a three-wheeler is not required
to have a driver's license" because it did not affect the result
in that case. We concluded that, even if a three-wheeler was not
required to be licensed, its driver could nonetheless be charged
with DWLS if the driver's license for his automobile was
suspended and he drove his three-wheeler on the highway. The
statement that "the driver of a three-wheeler is not required to
have a driver's license" was unnecesary to the decision in that
case and we disavow that language to the extent it is
inconsistent with our present decision.
Accordingly, the order of dismissal is VACATED.
_______________________________
1. Alaska Statute 28.15.041(a) reads, in relevant
part:
Classification of drivers' licenses.
(a) The commissioner shall provide by
regulation for the classification of drivers'
licenses. The regulations must specify
license classifications that are reasonably
necessary for the safe operation of the
various types, sizes and combinations of
motor vehicles. The regulations must also
establish medical standards, standards of
driving conduct and proficiency, and other
standards governing the issuance, renewal, or
denial of these licenses. The department may
examine each applicant to determine the
applicant's qualifications according to the
class of license applied for, and upon
issuing a driver's license the department
shall indicate on the license the
classification for which an applicant for a
license has qualified by examination. The
regulations and any subsequent modifications
under this section become effective only if
approved by a concurrent resolution adopted
by a majority vote of each house of the
legislature.
(Emphasis added).
2. AS 28.40.100(a)(8) provides:
"motorcycle" means a vehicle having a seat or
saddle for the use of the rider and designed
to travel on not more than three wheels in
contact with the ground; the term does not
include a tractor[.]
AS 28.40.100(a)(9) states:
"motor-driven cycle" means a motorcycle,
motor scooter, motorized bicycle or similar
conveyance with a motor attached and having
an engine with 50 or less cubic centimeters
of displacement[.]
3. AS 28.40.100(a)(7) states:
"motor vehicle" means a vehicle which is self-
propelled except a vehicle moved by human or
animal power[.]
AS 28.40.100(a)(17) provides:
"vehicle" means a device in, upon, or by
which a person or property may be transported
or drawn upon or immediately over a highway
or vehicular way or area except devices used
exclusively upon stationary rails or
tracks[.]
4. 13 AAC 40.010(30) states:
(30) "off-highway vehicle" means a
vehicle designed or adapted for cross-
country operation over unimproved terrain,
ice or snow, and which has been declared
by its owner at the time of registration
and determined by the department to be
unsuitable for general highway use,
although the vehicle may make incidental
use of a highway as provided in this title;
it does not include implements of husbandry
and special mobile equipment[.]
(Emphasis added).
AS 28.10.011 provides:
Vehicles subject to registration. Every
vehicle driven, moved, or parked upon a
highway or other public parking place in the
state shall be registered under this chapter
except when the vehicle is
(1) driven or moved on a highway only
for the purpose of crossing the highway from
one private property to another, including an
implement of husbandry as defined by
regulation;
(2) driven or moved on a highway under
a dealer's plate or temporary permit as
provided for in AS 28.10.031 and
28.10.181(j);
(3) special mobile equipment as defined
by regulation;
(4) owned by the United States;
(5) moved by human or animal power;
(6) exempt under 50 U.S.C. App.
501-591 (Soldiers' and Sailors'
Civil Relief Act);
(7) driven or parked only on private
property;
(8) the vehicle of a nonresident as
provided under AS 18.10.121;
(9) a commercial interstate vehicle
under AS 28.10.141;
(10) transported under a special permit
under AS 28.10.151;
(11) being driven or moved on a highway,
vehicular way, or a public parking place in
the state that is not connected by a land
highway or vehicular way to
(A) the land-connected state highway
system, or
(B) a highway or vehicular way with an
average daily traffic volume greater than
499;
(12) a mobile home as defined by
regulation;
(13) an implement of husbandry operated
in accordance with the provisions of AS
19.10.065.
(Emphasis added.)
