NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RANDALL WILLIAMS, )
) Court of Appeals No. A-5062
Appellant, ) Trial Court No. 4FA-93-751 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1377 - November 10, 1994]
________________________________)
Appeal from the District Court, Fourth
Judicial District, Fairbanks, Jane F. Kauvar
and Mark I. Wood, Judges.
Appearances: Geoffry B. Wildridge,
Assistant Public Defender, Fairbanks, and
John B. Salemi, Public Defender, Anchorage,
for Appellant. Jacquelyn L. Parris,
Assistant District Attorney, Harry L. Davis,
District Attorney, Fairbanks, and Bruce M.
Botelho, Acting Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Randall Williams appeals his conviction for driving
while intoxicated, AS 28.35.030(a). We affirm.
On March 20, 1993, Alaska State Trooper Gary Tellep
observed one car towing another down College Road in Fairbanks.
Concerned that the tow chain was too short for safety, Trooper
Tellep stopped the two vehicles. Williams was steering the car
that was being towed. His breath had an odor of alcoholic
beverages, and there were empty beer cans in the towed vehicle.
Tellep asked Williams to perform some field sobriety tests; as a
result of Williams's performance on these tests, Tellep arrested
Williams for driving while intoxicated. A later Intoximeter test
showed Williams's blood alcohol level to be .241 percent.
Williams asked the district court to suppress all of
the State's evidence and to dismiss his case. He argued that
Tellep's decision to arrest him had not been supported by
probable cause. The underlying basis of Williams's argument was
his assertion that his towed vehicle was not "operable" within
the meaning of the Alaska cases construing the DWI statute. The
State stipulated that, at the time it was being towed, Williams's
car could not move under its own power because its engine would
not start. Nevertheless, District Court Judge Mark I. Wood
denied Williams's motion. Williams renews his argument on
appeal.
We must first decide if Williams was "driving" or
"operating" a vehicle. Several years ago, Alaska law contained a
regulation that governed this situation. Former 13 AAC 10.200,
cited in the supreme court's decision in Jacobson v. State, 551
P.2d 935, 937 (Alaska 1976), declared that "[i]n the traffic
regulations and in AS 28.35.030, ... 'operator' means a person
who drives [a vehicle] or is in actual physical control of a
vehicle or who is exercising control over or steering a vehicle
being towed by a motor vehicle". However, this regulation was
repealed in 1979. In its place, AS 28.40.100(a)(7) defines the
term "driver". This statutory definition omits any reference to
towed vehicles; it declares simply that "driver" means "a person
who drives or is in actual physical control of a vehicle".
Despite the failure of AS 28.40.100(a)(7) to
specifically mention towed vehicles, we conclude that a person
who steers a towed vehicle is "driving" within the meaning of the
Alaska statutes. Virtually unanimous case law from other
jurisdictions holds that "driving" means exercising control over
the motion of a moving vehicle, regardless of what impetus is
propelling the vehicle. See State v. Keeton, 600 N.E.2d 752, 755-
56 (Ohio App. 1991) (steering a vehicle being towed out of a
ditch is "operating"); State v. Tacey, 150 A. 68, 69-70 (Vt.
1930) (steering a vehicle being towed down the road by a truck is
"operating"); State v. Larson, 479 N.W.2d 472, 473-74 (N.D. 1992)
(steering a vehicle being pushed from behind by another vehicle
is "driving"); Hester v. State, 270 S.W.2d 321, 321-22 (Tenn.
1954) (same); Chamberlain v. State, 294 S.W.2d 719, 720 (Tex.
Crim. App. 1956) (same); Rogers v. State, 183 S.W.2d 572 (Tex.
Crim. App. 1944) (same); Walker v. State, 408 S.W.2d 474, 475-76
(Ark. 1966) (same); State v. Edmonson, 371 S.W.2d 273, 274-75
(Mo. 1963) (same); Duckett v. State, 132 S.E.2d 811 (Ga. App.
1963) (guiding a car being pushed by 10 or 12 people is "operat
ing"); Farley v. State, 170 So.2d 625, 626-27 (Miss. 1965)
(steering a car that is coasting downhill is "operating"); State
v. Jeanette, 412 A.2d 1339, 1340-42 (N.J. App. 1980) (pushing a
motorcycle using one's feet, and coasting and riding on downhill
inclines, is "operating"); State v. Cole, 591 N.E.2d 1378 (Ohio.
Muni. 1992) (same); People v. Jordan, 142 Cal.Rptr. 401, 405-07
(Cal. App. 1977) (pedaling a moped with the motor turned off is
"driving"). See James O. Pearson, Jr., Annotation: "What Consti
tutes Driving, Operating, or Being in Control of a Motor Vehicle
for Purposes of [a] Driving While Intoxicated Statute or
Ordinance", 93 A.L.R.3d 7 (1979), 6 and 10. See also 7A
Am.Jur.2d "Automobiles and Highway Traffic", 300, pp. 481-82 &
483, stating that both the terms "driving" and "operating" are
normally held to include the act of steering a vehicle that is
being pushed or towed.
In many of the cases cited in the preceding paragraph,
the defendant's vehicle was being towed or pushed because it was
not capable of moving under its own power. Tacey, 150 A. at 69
(the defendant's car could not be started); Larson, 479 N.W.2d at
472 (the defendant's bus had broken down); Chamberlain, 294
S.W.2d at 720 (the engine of the defendant's car had stopped
running); Duckett, 132 S.E.2d at 812 (the defendant's car would
not start); Farley, 170 So.2d at 626 (the defendant "tried to
crank the car but it would not start"; police officers also could
not start the car, and they eventually had to call a tow truck).
Nevertheless, the courts ruled that the defendants' conduct fell
squarely within the policy of their states' drunk driving
statutes.
[T]he legislature has criminalized the
conduct of those who [, while intoxicated,]
pilot their moving vehicles on the highway,
thereby endangering themselves and all those
who encounter them in their inebriated
journey.
Larson, 479 N.W.2d at 474. Accord, Hester, 270 S.W.2d at 322.
See also Jeanette, 412 A.2d at 1341, upholding the conviction of
a motorcyclist who was forced to coast his bike after his
girlfriend withheld the ignition key because she thought he
should not drive. The New Jersey court stated:
This court is of the opinion that the public
is to be protected from the operation by an
intoxicated driver of a motor vehicle,
whether it is powered by its engine or
gravity. It is the driver's judgment and
dexterity that are impaired, and this
impairment is present irrespective of the
source of the vehicle's power.
We find ourselves in agreement with these courts. The
public danger addressed by Alaska's DWI statute is the danger
posed by intoxicated people who undertake to control the movement
of an automobile on a highway at a time when they are not fully
capable of exercising the judgement and coordination required to
drive safely. An intoxicated person in control of a car moving
down a highway - whether that car is being towed or pushed, or
whether it is coasting downhill - poses an equivalent danger to
passengers, to other drivers, and to pedestrians, whether or not
the car's engine will start. We hold that the act of steering a
towed car is "driving" within the meaning of AS 28.35.030(a) and
AS 28.40.100(a)(7). Compare Jacobson v. State, 551 P.2d 935, 938
(Alaska 1976), where our supreme court held that an intoxicated
person in control of a non-moving vehicle was a sufficient danger
to public safety to fall within the DWI statute.
Williams next argues that, because his car could not be
started, it was no longer a "motor vehicle" within the meaning of
AS 28.40.100(a)(12). That statute declares that the term "motor
vehicle" means "a vehicle which is self-propelled except a
vehicle moved by human or animal power". We, however, reject the
idea that a motor vehicle ceases to be a motor vehicle whenever
it cannot be started. If we were to read the statute literally
(as Williams suggests we should), we would have to conclude that
an automobile is only a "motor vehicle" when the engine is
actually running - that when someone turns the engine off, or
when the automobile stalls, the automobile stops being a "motor
vehicle" because it is no longer "self-propelled". Such a
conclusion is illogical and at odds with the legislative intent
behind the statutory definition. We conclude instead that a
vehicle's status as a "motor vehicle" depends on whether the
vehicle was designed or constructed to be self-propelled, not
whether it is presently capable of moving under its own power.
As the Vermont Supreme Court said:
Manifestly it was the design, mechanism, and
construction of the vehicle, and not its
temporary condition, that the Legislature had
in mind when framing the definition of a
motor vehicle.
Tacey, 150 A. at 69. Accord, Farley, 170 So.2d at 627. We
recognize that the Oregon Supreme Court reached the opposite
result in State v. Duggan, 622 P.2d 316 (Or. 1981), but we
believe that the dissent in that case is better-reasoned.1
Finally, Williams argues that our construction of
"driving" and "motor vehicle" are at odds with the Alaska Supreme
Court's decision in Department of Public Safety v. Conley, 754
P.2d 232 (Alaska 1988). Conley involved an administrative
license revocation action based on Conley's violation of the DWI
statute. Conley had been involved in a disturbance at a bar, and
she had been asked to leave. The police officer who responded to
the disturbance concluded that Conley was too intoxicated to
drive. He tried to persuade her to take a cab or to ask a friend
for a ride home, but she refused. A little later, the officer
saw Conley approach her car and, with keys in hand, sit down
behind the wheel. The officer stepped toward the car and
positioned himself so that Conley could not close the door. He
asked her what she was doing, and Conley replied that she was
about to drive home. As Conley was moving her hand to insert the
key in the ignition, the officer arrested her. Conley, 754 P.2d
at 233.
Because Conley had not moved the car or operated any of
its controls or mechanisms, the question litigated at the adminis
trative hearing was whether Conley had been in physical control
of the vehicle at the time of her arrest. See Jacobson, 551 P.2d
at 938, holding that AS 28.35.030(a) prohibits an intoxicated
person from being in "actual physical control" of a motor
vehicle. As part of her defense, Conley argued that the State
had failed to show that her car was "operable" at the time she
exercised control over it. The supreme court said:
We agree that a finding that the car is "rea
sonably capable of being rendered operable"
is required in civil driver's license
revocation proceedings. See State v.
Smelter, ... 674 P.2d 690, 693 ([Wash. App.]
1984).
Conley, 754 P.2d at 236.
While Conley speaks only of "civil driver's license
revocation proceedings", the Washington case cited by the supreme
court was a criminal prosecution for DWI. We assume, for
purposes of deciding this appeal, that the "operability"
requirement announced in Conley applies to DWI prosecutions as
well as to administrative proceedings.
Nevertheless, we conclude that Williams's case presents
no question of "operability". Both Conley and the Washington
case it relies on, Smelter, imposed the operability requirement
in the context of a defendant who was charged, not for driving or
operating a motor vehicle, but for simply being in control of
one. The Washington Court of Appeals explained that the
requirement of operability was being added to make sure that the
defendant's conduct truly posed the danger envisioned by the
legislature when it defined the crime of driving while
intoxicated to include simply being in control of a non-moving
vehicle:
A definition of "control" that focuses
[solely] upon "the authority to manage" a
motor vehicle, perhaps as evidenced by lawful
possession of the keys while seated in the
driver's seat, would permit a finding of
actual physical control of an inoperable
vehicle. The question of what constitutes
the elements of ["]actual physical
control["], such as whether the motor must be
running or, by extension, whether the vehicle
must be operable, has been characterized as a
policy issue. State v. Juncewski, 308 N.W.2d
316, 320 (Minn. 1981).
Smelter, 674 P.2d at 693. The Washington court then continued:
In general, laws prohibiting driving while
intoxicated are deemed remedial statutes, to
be "liberally interpreted in favor of the
public interest and against the private
interests of the drivers involved."
[Juncewski, 308 N.W.2d] at 319.
Specifically, actual physical control
statutes have been characterized as
"preventive measure[s]," State v. Schuler,
[243 N.W.2d 367, 370 (N.D. 1976)], which
"deter individuals who have been drinking
intoxicating liquor from getting into their
vehicles, except as passengers,", State v.
Ghylin, [250 N.W.2d 252, 255 (N.D. 1977)],
and which "enable the drunken driver to be
apprehended before he strikes." State v.
Webb, [274 P.2d 338, 339 (Ariz. 1954)].
Smelter, 674 P.2d at 693.
When the Washington court spoke of apprehending an
intoxicated driver "before he strikes", we believe the court
meant "before he assumes control of a moving vehicle". If, as
the Washington court intimated, the legislative aim behind
criminalizing "actual physical control" was to forestall
intoxicated persons from assuming control of a moving vehicle,
then it makes sense to include an "operability" requirement of
some sort when defining what instances of physical control
actually create the danger contemplated by the legislature.
However, the evidence in this case shows that Williams
was not merely in physical control of his vehicle. He was
driving it - steering it as it moved along the road. Williams's
conduct clearly created the danger envisioned by the legislature
when it prohibited driving while intoxicated. By failing to
brake or by steering incorrectly, Williams might have struck the
car towing him. By swerving from his lane, he might have
collided with on-coming traffic. Or, by braking or maneuvering
his vehicle in such a way as to disrupt the motion of the towing
vehicle, he might have caused the towing vehicle to strike
another vehicle or a pedestrian. See our decision in Smith v.
State, 739 P.2d 1306, 1307 (Alaska App. 1987), in which the
driver of a towed vehicle was convicted of criminally negligent
homicide under AS 11.41.130(a): during the towing, Smith first
struck the vehicle that was towing him, then later swerved his
towed vehicle over the center line, struck an on-coming car, and
killed the driver.
For these reasons, we hold that a person who steers a
towed automobile is driving a "motor vehicle" within the meaning
of Alaska's driving while intoxicated statute, AS 28.35.030(a).
We consequently uphold Judge Wood's denial of Williams's motion
to dismiss the case. For the same reasons, we uphold District
Court Judge Jane F. Kauvar's refusal (as the trial judge) to
instruct the jury that Williams could not be convicted unless the
jury found that his vehicle was "reasonably capable of being
rendered operable". Because Williams's vehicle was actually
moving along the road, its operability was irrelevant.
Williams next challenges the propriety of a response
Judge Kauvar gave to a question posed by the jury. The jury in
Williams's case was instructed that the crime of driving while
intoxicated could be established either by proof that the
defendant had been "driving" or by proof that the defendant had
"actual physical control over the vehicle". However, the same
jury instruction informed the jury that "the act of driving
involves actual movement of a motor vehicle caused by the acts of
the driver". This limitation was incorrect. Williams's act of
steering his towed vehicle was "driving" for purposes of the DWI
statute even though the towing vehicle provided the motive power.
However, apparently as a result of this definition of "driving",
the jury focused on a theory of "actual physical control".
The instruction on "actual physical control" stated, in
pertinent part:
To exercise "actual physical control"
means a person must be physically or bodily
able to assert dominion, in the sense of
movement, over an object as he would if he
were actually driving the vehicle.
During its deliberations, the jury sent a note to the court
asking for a definition of "dominion". Pursuant to a stipulation
of the parties, Judge Kauvar answered the jury's question by
telling them that "dominion" meant "supreme authority or
control".
However, the jury later sent another note asking for a
more complete definition of "dominion", and also asking whether
the adjective "supreme" was intended to modify both "authority"
and "control", or simply "authority".2 Williams asked Judge
Kauvar to tell the jury that "dominion" required "supreme
control", but Judge Kauvar instead told the jury that "dominion"
included not only "perfect control" but also "preponderant or
overriding influence".
On appeal, Williams cites Black's Law Dictionary (6th
ed. 1991), p. 486, for the proposition that "dominion" requires a
finding of "perfect control" or "complete retention of control".
However, the Black's entry clearly refers to dominion over
property; the complete phrases it uses are "perfect control in
right of ownership" and "complete retention of control over
disposition". This definition is not controlling here.
It is obvious that the driver of a towed vehicle does
not have "perfect control" over the movements of the vehicle.
Nevertheless, such a driver has sufficient control over the
vehicle to pose a significant danger to others, whether or not
the driver is intoxicated. See Smith v. State, supra. Judge
Kauvar did not commit error when she refused to define "actual
physical control" as requiring "perfect control".
Williams's next point on appeal concerns an evidentiary
ruling of the trial judge. Among the field sobriety tests
Trooper Tellep administered to Williams was the horizontal gaze
nystagmus (HGN) test. This test, in which a suspect is asked to
track a moving object with his or her eyes, is described in State
v. Grier, 791 P.2d 627 (Alaska App. 1990). Williams asked Judge
Kauvar to prohibit the State from introducing evidence of this
test; he argued that the State had not yet proved that the HGN
test was generally accepted within the scientific community as a
valid way to test a person's level of intoxication. See
Contreras v. State, 718 P.2d 129, 134-36 (Alaska 1986); Pulakis
v. State, 476 P.2d 474, 478 (Alaska 1970); Frye v. United States,
293 F. 1013 (D.C. Cir. 1923). But see Daubert v. Merrell Dow
Pharmaceuticals, Inc., ___ U.S. ____, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993). Judge Kauvar denied Williams's request, relying on
this court's decision in Grier.
Grier is not dispositive of this issue. In Grier, this
court held that the HGN test was reliable enough to be used by
police officers in making decisions to arrest. Grier, 791 P.2d
at 631. But at the same time this court expressly noted that, to
reach this holding, it was unnecessary to decide whether the HGN
test met the requirements of Contreras and Frye. Grier, 791 P.2d
at 631 n.2. The question of whether HGN evidence is admissible
at criminal trials in this state is still open.
After examination of the record in this case, we find
that it is still unnecessary to decide the admissibility of HGN
evidence. While Judge Kauvar did deny Williams's request for a
protective order, no evidence of Williams's performance on the
HGN test was introduced at his trial. Trooper Tellep testified
that he administered the HGN test to Williams, and he described
the testing procedure to the jury. Tellep testified that "in a
good portion of the ... population, [a "bouncing of the eye"
during the HGN test] shows a level of intoxication". However,
Tellep never described Williams's performance on the HGN test,
nor did he state whether Williams had passed or failed the test.3
The jury heard an audio tape of the field sobriety tests, but
that tape contains no statement indicating how Williams did on
the HGN test. On the tape, Tellep can be heard instructing
Williams on how to take the test, but nothing is said about
Williams's performance; after a brief silence, Tellep can be
heard asking Williams to perform balance tests. In sum, the jury
heard that Williams had been asked to take the HGN test, but they
heard no evidence that Williams had failed the HGN test.
The prosecutor's opening statement contained an
assertion that Williams had failed the HGN test. And, despite
the lack of evidence to support it, the prosecutor's final
argument contained a similar assertion. However, these were the
only comments at Williams's trial about his performance on the
HGN test, and both comments were made in the middle of long lists
of factors indicating that Williams was intoxicated.
Williams's attorney did not object to the prosecutor's
statement during final argument. Moreover, Judge Kauvar
specifically instructed the jury that they "must not consider as
evidence any statement or argument of counsel". We therefore
find that the prosecutor's assertion that Williams had failed the
HGN test was harmless error.
Williams's final contention on appeal is that Judge
Kauvar should not have allowed the prosecutor to introduce
evidence of Williams's .241 intoximeter reading. The underlying
facts are as follows:
Following Williams's arrest, Tellep took Williams to
the trooper office and there administered the Intoximeter 3000
breath test. Tellep waited the 15-minute observation period
mandated by 13 AAC 63.040(a)(1) before asking Williams to blow
into the machine. However, when Williams did so, the Intoximeter
aborted the test, giving a reading of "mouth alcohol". Tellep
explained that this meant the machine was getting breath from
Williams's mouth but was not getting a proper breath sample from
his lungs.
About nine minutes later, Williams again blew into the
Intoximeter. This time, the machine completed the test and
produced the breath-alcohol result of .241 (nearly two and a half
times the legal limit).4
At trial, Williams objected to the admission of the
breath test result. He argued that the mandatory 15-minute
observation period applied again after an aborted test attempt,
and that therefore his Intoximeter result was invalid because
Tellep had not waited the full 15 minutes between the aborted
"mouth alcohol" test and the second test that produced the .241
result. Williams called the court's attention to a portion of
the State Troopers' Intoximeter instruction manual which specifi
cally instructed Intoximeter operators that an additional 15-
minute observation period was necessary after any "mouth alcohol"
reading before they again attempted to run the test.
Judge Kauvar concluded that the Troopers' instruction
manual did not have the force of law and that 13 AAC 63.040
controlled the administration of the test. Judge Kauvar further
found that, under this regulation, the only mandatory waiting
period was the initial 15-minute observation period - that the
regulation did not require an additional observation period after
an aborted test. Judge Kauvar therefore ruled that Williams's
Intoximeter breath test result could be admitted, although she
expressly allowed Williams both to argue and to introduce
evidence indicating that the breath test result was inaccurate.
Williams did cross-examine Tellep about the instruction
manual provision directing Intoximeter operators to wait an
additional 15 minutes after a "mouth alcohol" reading. Tellep
stated that he was unfamiliar with this provision and that it had
apparently been added to the manual after he received his
training at the State Trooper Academy.
The prosecutor then called Alaska State Trooper Richard
Quinn to testify as an expert witness on the Intoximeter 3000.
Quinn testified that the Intoximeter gives a "mouth alcohol"
reading and aborts the breath test whenever it detects that the
alcohol content of the incoming breath sample decreases sharply
during the intake of the sample. Quinn testified that this
decrease in alcohol content can indicate either that residual
alcohol is present in the test subject's mouth or that the test
subject has not blown steadily and evenly into the machine.
Quinn also testified that, despite the Intoximeter's
programmed response of "mouth alcohol", his personal experience
was that a suspect's failure to blow steadily and evenly was
generally the cause of a "mouth alcohol" reading whenever the
subject (like Williams) was eventually determined to have a
breath-alcohol level of .20 or higher.
In addition, Quinn testified that no additional 15-
minute waiting period was required after a "mouth alcohol"
reading. Quinn acknowledged the contrary statement in the
instruction manual, but he nevertheless declared that this
statement was inconsistent with State Trooper policy and was
unsupported by any considerations of test accuracy. Quinn
explained that the 15-minute waiting period suggested in the
training manual is a conservative one: according to information
Quinn received in training, residual alcohol in a person's mouth
generally disappears within eight to ten minutes. Quinn added
that even this 8- to 10-minute figure is conservative because,
from his own experimentation with the Intoximeter, mouth alcohol
becomes undetectable by the machine after five minutes.
Finally, Quinn testified that if a suspect's residual
mouth alcohol has not disappeared by the time of the next test
attempt, the Intoximeter will again detect the mouth alcohol and
will again abort the test.
On appeal, Williams argues that Judge Kauvar's construc
tion of 13 AAC 63.040(a)(1) makes no sense. He argues that if
the Intoximeter can not be trusted to give an accurate reading
without an initial 15-minute observation period before a
suspect's first breath test, then the machine can not be trusted
to give an accurate reading unless another full 15-minute waiting
period is observed prior to any follow-up test. However, the
only evidence presented on this question was Richard Quinn's
testimony that a second 15-minute waiting period was not
necessary under the circumstances of this case and that, given
the 9-minute interval between Williams's first and second tests,
there was little or no reason to doubt the validity of the result
yielded by the second test.
On this record, Judge Kauvar did not err in finding
that 13 AAC 63.040(a)(1) only envisioned an initial 15-minute
waiting period. Moreover, even if a second 15-minute waiting
period were required, Quinn's testimony established that
Williams's breath test was conducted in substantial compliance
with the regulatory requirement.
Absolute compliance with the breath test regulations is
not required to secure admission of the breath test result;
substantial compliance will suffice for admissibility, after
which the defendant may present evidence questioning the validity
of the test and may argue to the jury that the breath test result
deserves little weight. Oveson v. Anchorage, 574 P.2d 801, 804-
05 (Alaska 1978); Gilbreath v. Anchorage, 773 P.2d 218, 221-22
(Alaska App. 1989); Ahsogaek v. State, 652 P.2d 505, 506 (Alaska
App. 1982).
Here, Williams was able to cross-examine both Tellep,
the trooper who administered the test, and Quinn, the trooper who
testified as an expert witness on Intoximeter testing. Williams
cross-examined both of these witnesses about the provision in the
Troopers' training manual that prescribed a second 15-minute
waiting period, and he questioned Quinn about the reliability of
an Intoximeter result taken less than 15 minutes after a "mouth
alcohol" reading. Moreover, Judge Kauvar instructed the jury to
weigh the breath test result in light of the government's level
of compliance with the waiting-period regulation.5 On this
record, we conclude that Judge Kauvar did not abuse her
discretion when she allowed the government to introduce the
Intoximeter result.
The judgement of the district court is AFFIRMED.
_______________________________
1 We also note that if a vehicle ceased being a "motor
vehicle" whenever it could not run under its own power, the
"operability" requirement imposed by Department of Public Safety
v. Conley, 754 P.2d 232 (Alaska 1988) - which we are about to
discuss - would be completely superfluous.
2 The jury's note read:
(1) We require further definitions of dominion[.]
(2) Did your definition "supreme authority or
control" mean "control or supreme authority" or did it
mean "supreme authority or supreme control"?
(3) What is "supreme"? More than 50%; less than
99%?
3 After Tellep had explained the HGN test to the jury, the
prosecutor asked Tellep to go back and detail Williams's
performance when reciting the alphabet and counting backwards.
After Tellep described Williams's performance on these tests, the
prosecutor asked Tellep to move on to the next tests (the
balancing tests), apparently forgetting that the subject of the
HGN test had been dropped before Tellep ever discussed Williams's
performance on that test.
4 After submitting to the breath test, Williams opted to
have an independent test done of his blood-alcohol level. A
blood sample was drawn and was sent to a hospital for testing,
but Tellep did not know what the result of this test was, and
neither party introduced other evidence concerning this
independent test.
5 Judge Kauvar told the jurors:
To be considered valid, the chemical analysis of
the person's breath shall have been performed according
to methods approved by the Department of Public Safety.
If it is established that the chemical analysis of
breath was performed according to approved methods by a
person trained according to techniques, methods and
standards of training approved by the Department of
Public Safety, it may be inferred that the test results
are valid, but if it is not so established you may
reject the test entirely or give it such weight as you
think it deserves.
The weight to be given the Intoximeter evidence is
strictly a factual matter for you, the Jury.
Regulations adopted by the Department of Public
Safety require that the following procedure must be
used to obtain and analyze a breath sample on a breath
test instrument:
"Observe the person to be tested
for at least 15 minutes immediately before
testing, to insure that the person does not
regurgitate or place anything in his mouth
during that period."
