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THE COURT OF APPEALS OF THE STATE OF ALASKA
MAXIE MEZAK, )
)
Appellant, ) Court of
Appeals No. A-5078
) Trial
Court No. 4BE-S93-508CR
v. )
) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1358 - July 29, 1994]
______________________________)
Appeal from the District Court, Fourth
Judicial District, Bethel, Craig R. McMahon,
Magistrate.
Appearances: Dennis Schertz, Law Office of
Chris Provost, Bethel, for Appellant. Bruce
G. Ward, Assistant District Attorney, James
K. Metcalfe, District Attorney, Bethel, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Maxie Mezak pleaded no contest to operating a
watercraft while intoxicated. AS 28.35.030. Mezak appeals the
decision of District Court Magistrate Craig R. McMahon denying
Mezak's motion to dismiss the charge on the ground that he had
not been "operating" the watercraft as defined by the statute.
We affirm the conviction.
On June 4, 1993, Bethel Police Sgt. John Bilyeu and Lt.
Jean Achee went to the Brown Slough area in response to a report
that three drunk males were leaving the area in a yellow boat.
When the officers arrived, they observed the boat and saw that
one of the three men, Joseph Andrews, was motoring the boat out
of the slough. While the officers were obtaining a boat for
their own use, the engine on the yellow boat stopped running; the
officers then observed Mezak, one of the other two men in the
yellow boat, exchange positions with Andrews, take the controls
of the boat, and repeatedly attempt to restart the engine. The
officers admonished Mezak to stop and to sit down. Mezak pulled
the outboard motor out of the water and sat in the boat. At that
point, the officers pulled alongside the yellow boat, confirmed
that the three men in it were intoxicated, and towed the boat
ashore. The police arrested Andrews and Mezak for operating a
watercraft while intoxicated.1 An Intoximeter test later showed
Mezak's blood-alcohol level to be 0.254.
Mezak filed a motion to dismiss the case, arguing that
his action of attempting to start the boat's engine, as alleged
in the criminal complaint, did not constitute "operating" the
watercraft, which AS 28.35.030(m)(3) defines as "to navigate or
use" a watercraft. Magistrate McMahon denied the motion, noting
that "Mr. Mezak was attempting to start the motor of the boat"
and ruling that Mezak had therefore been "operating" the
watercraft as defined by the statute. The court ruled that "this
construction of the definition does not differ from the
definitions of operating a motor vehicle or aircraft which have
been developed by case law." Mezak then pleaded no contest and
preserved the dismissal issue for appeal in accordance with
Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Alaska Statute 28.35.030(a), the law prohibiting
"driving while intoxicated," applies to a person who "operates or
drives a motor vehicle or operates an aircraft or a watercraft"
while intoxicated. The statute does not define "operate or drive
a motor vehicle." However, AS 28.35.030(m)(3) does define
"operate a watercraft" as "to navigate or use a vessel used or
capable of being used as a means of transportation on water for
recreational or commercial purposes on all waters, fresh or salt,
inland or coastal, inside the territorial limits or under the
jurisdiction of the state."2
Neither this court nor the Alaska Supreme Court has
previously construed the meaning of "operate a watercraft" in AS
28.35.030. However, both courts have elaborated upon the meaning
of "operate or drive a motor vehicle." Noting that former AS
28.40.100(a)(4) (now AS 28.40.100(a)(7)) defined "driver" as "a
person who drives or is in actual physical control of a vehicle,"
the supreme court has held that Alaska has criminalized being in
"actual physical control" of a car while intoxicated. State
Dep't of Pub. Safety v. Conley, 754 P.2d 232, 234 (Alaska 1988).
In Conley, the court expressed its concerns regarding
the dangers to the public from an intoxicated driver being in
"actual physical control" of a motor vehicle, even while the
vehicle was not actually moving. The court concluded that
Conley, who was sitting in the driver's seat of a stationary car
with the engine turned off and attempting to insert the ignition
key, was in "actual physical control" of the car. Id. at 236.
See also Jacobson v. State, 551 P.2d 935 (Alaska 1976) (person
asleep in front seat of car with motor running was in "actual
physical control"); Lathan v. State, 707 P.2d 941 (Alaska App.
1985) ("actual physical control" established despite fact
defendant's car was incapable of movement). We see no reason not
to apply a similar standard to the term "use" within AS
28.35.030(m)(3).
We conclude that the magistrate did not err in denying
Mezak's motion to dismiss. Viewing the record in the light most
favorable to the state, Mezak was actively trying to start the
boat's engine. He was both "using" the boat and in "physical
control" of it.
The conviction is AFFIRMED.
_______________________________
1. The police also arrested the third man, Sammy
Ashepak, for second-degree hindering prosecution because Ashepak
had thrown a bottle of vodka from the boat into the slough.
2. Cf. AS 05.25.100(2) (defining "operate" for
purposes of recreational boating requirements as "to navigate or
otherwise use a watercraft for recreational purposes as opposed
to business, subsistence, or commercial purposes").
