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Busby v. State (02/01/2002) ap-1785
Busby v. State (02/01/2002) ap-1785
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS BUSBY, )
) Court of Appeals No. A-7527
Appellant, ) Trial Court No. 3PA-98-2422 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1785 February 1, 2002]
)
Appeal from the District Court, Third Judicial
District, Palmer, Suzanne H. Lombardi, Judge.
Appearances: Laurel Carter, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Rachel K. Gernat, Assistant District Attorney, Roman J.
Kalytiak, District Attorney, Palmer, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Thomas Busby is a former Alaska resident whose driver's
license was revoked while he was living here. Busby later moved to
Nicaragua, where he obtained an international driving permit under
the provisions of the United Nations Convention on Road Traffic.
The United Nations Convention on Road Traffic is a multi-
national treaty governing non-commercial international vehicular
traffic. In Chapter V of this treaty, the signatory countries agree
to grant reciprocal recognition to driver's licenses issued by the
other signatory countries although the countries can require that
foreign drivers obtain and carry an "international driving permit"
that is organized and printed in conformity to a model prescribed
in an appendix to the Convention. Busby obtained such a permit
while living in Nicaragua.
In 1998, Busby drove from Central America to Alaska. On
October 28th, a state trooper stopped him outside of Talkeetna for
a traffic violation. During the stop, the trooper discovered that
Busby's Alaska driver's license was revoked, so Busby was charged
with (and subsequently convicted of) the misdemeanor of driving
while his license was revoked, AS 28.15.291(a).
Busby asserts that even though his Alaska driver's license
was revoked, he was still entitled to drive in Alaska because he had
the international driving permit. But as we explain in more detail
below, the Convention on Road Traffic does not preclude the State
of Alaska from enforcing license revocations imposed under Alaska
law. Signatory countries retain the authority to enforce their
traffic laws, to take action against the licenses of motorists who
violate those laws, and to forbid a motorist from driving within
their territory if the motorist's privilege to drive has been
suspended or revoked.
The Convention does forbid a signatory country (or
subsidiary state) from imposing or enforcing license revocations in
a manner that discriminates against residents of other signatory
countries. But Busby does not claim that he was the victim of such
discrimination. Busby's license was revoked for conduct that would
have led to license revocation if committed by an Alaska resident.
(Indeed, Busby's license was revoked while he was an Alaska
resident.) And Busby does not claim that he was singled out for
prosecution because he was a resident of a foreign country i.e.,
that the State would not have charged him with the offense of
driving with a revoked license if he had still been an Alaska
resident.
For these reasons, we uphold the State of Alaska's
authority to prosecute Busby for driving while his license was
revoked.
General description of the 1949 United Nations Convention
on Road Traffic
To "promot[e] the development and safety of international
road traffic", the United Nations drafted a Convention on Road
Traffic to regulate non-commercial vehicular traffic moving between
countries. [Fn. 1] (In this opinion, certain pertinent provisions
of the Convention are quoted verbatim. The full text of the
Convention is found in United States Treaties and Other
International Agreements, Vol. 3, Part 3, pp. 3010-3021.)
The United States has signed the Convention on Road
Traffic. The Convention is therefore part of our federal law, and
the provisions of the Convention supersede any contrary state law.
[Fn. 2]
According to Article 1, Section 1 of the Convention, each
signatory country "reserv[es] its jurisdiction over the use of its
own roads" but "agrees to the use of its roads ... under the
conditions set out in [the] Convention". The Convention governs
several aspects of international vehicular travel, from road signs
to license plates to red reflectors on the back of cycles. [Fn. 3]
Busby's case requires us to construe Chapter V of the Convention
(Articles 24 and 25), the chapter dealing with international driving
permits. The particular point of contention is the proper
interpretation of Article 24, Section 5.
The dispute concerning the meaning of Article 24, Section
5
Article 24, Section 1 requires each signatory country to
recognize the driver's licenses issued by other signatory countries.
Section 1 declares that if a driver "holds a valid driving permit
issued ... by the competent authority of another [signatory] State
or subdivision thereof", each signatory country
... shall allow [the] driver ... to drive on
its roads[,] without further examination[, all]
motor vehicles of the category or categories
... for which the permit has been issued.
This obligation is modified slightly by Section 2, which allows
signatory states to require drivers licensed in other countries to
"carry an international driving permit conforming to the model [set
forth] in [A]nnex 10" to the Convention. But Section 3 requires
signatory states to issue international driving permits to all
drivers who apply for them (assuming the driver demonstrates the
required driving competency).
As noted above, Busby received an international driving
permit from the government of Nicaragua, and this permit was in
force when Busby was stopped in Alaska and charged with driving with
a revoked license. Busby contends that the State of Alaska was
obliged to honor his international driving permit even though his
Alaska driver's license was revoked.
Busby's argument appears to falter on Article 24, Section
5 of the Convention on Road Traffic. This provision gives each
signatory country (and its political subdivisions, such as the State
of Alaska) a limited power to withdraw a driver's right to use an
international driving permit on its roads. Article 24, Section 5
declares:
A [signatory] State or a subdivision
thereof may withdraw from the driver the right
to use either [an international driving permit
or a driving permit issued directly by another
signatory country] only if the driver has
committed a driving offence [sic: the
Convention uses the British spelling] of such
a nature as would entail the forfeiture of his
driving permit under the legislation and
regulations of that [signatory] State. ...
That is, each country has the authority to refuse to honor an
international driving permit if the permit-holder has committed an
offense that would entail the loss of driving privileges if
committed by a resident of that country. Section 5 then continues:
[When the holder of an international driving
permit has committed a driving offense of this
nature], the [signatory] State or subdivision
thereof withdrawing the use of the permit may
withdraw and retain the permit until the period
of the withdrawal of use expires or until the
[permit-]holder leaves the territory of the
[signatory] State, whichever is the earlier ...
.
In other words, a signatory country (or a political subdivision
within that country) has the authority to "withdraw and retain" a
person's international driving permit until the period of license
suspension or revocation imposed by that country or political
subdivision expires, or until the person leaves the territory of
that country or political subdivision.
Busby's Alaska license was revoked while he was a resident
of Alaska before he moved to a foreign country, and before he
was issued his international driving permit. Thus, it is clear that
the State of Alaska revoked Busby's Alaska license for an offense
that carried the penalty of license revocation if committed by a
resident of this state. For this reason, it appears that the State
of Alaska was authorized (under Article 24, Section 5 of the
Convention) to withdraw Busby's right to use his international
driving permit within this state.
Busby acknowledges this provision of the Convention, but
he nevertheless argues that his international driving permit
remained valid. First, Busby claims that Article 24, Section 5 does
not authorize a signatory country to withdraw a person's right to
use an international driving permit unless the person commits a new
driving offense i.e., commits an offense after the issuance of
the international driving permit. In the alternative, Busby claims
that even if a person's right to use an international driving permit
can be withdrawn based on a pre-existing traffic offense, his permit
remained in force because neither the United States nor the State
of Alaska ever instituted official action to withdraw his right to
use the permit i.e., never initiated a judicial or administrative
proceeding to revoke and seize Busby's international driving permit
(prior to his arrest for driving with a revoked license). Busby
argues that because the government took no affirmative action
against his international driving permit, the permit remained valid
and gave him the right to drive in the State of Alaska despite his
earlier license revocation.
Busby's argument that a signatory country may not withdraw
a person's right to use its roads based on a license suspension or
revocation that pre-dates the issuance of the person's international
driving permit
As explained above, the first sentence of Article 24,
Section 5 authorizes a signatory country to withdraw a person's
right to drive within its territory if that person "has committed
a driving offence of such a nature as would entail the forfeiture
of [the person's] driving permit under the legislation and
regulations of that [country]". Busby asserts that this provision
does not allow the State of Alaska to prospectively prohibit him
from using his international driving permit in this state. That is,
Busby argues that even though his Alaska driver's license had
already been (and still was) revoked at the time he obtained his
international driving permit in Nicaragua, that permit nevertheless
authorized him to drive on the roads of Alaska.
It is hard to decipher Busby's precise argument. He may
be contending that the authority granted by Article 24, Section 5
applies solely to driving offenses committed after the person has
been issued an international driving permit that once he obtained
an international driving permit, the Convention on Road Traffic
guaranteed him the right to use his international driving permit
within the boundaries of Alaska until such time as he committed a
new driving offense (and the State of Alaska or the federal
government initiated some new judicial or administrative proceeding
to withdraw his right to drive). We address this argument in this
section of our opinion.
Alternatively, Busby may be arguing that even though his
prior license revocation was a sufficient reason for the State of
Alaska to withdraw his right to use his international driving
permit, the State never initiated a judicial or administrative
proceeding for that purpose. Under this suggested interpretation
of Article 24, Section 5, a signatory country can not prohibit a
driver whose license has been revoked from leaving that country,
obtaining an international driving permit from the government of
another country, and then returning as a licensed driver at least
until the revoking country realizes what has happened and takes
official action against the newly-issued international driving
permit. We address this argument in the next section of our
opinion.
Returning to Busby's argument that the Convention bars a
signatory country from withdrawing a person's right to use an
international driving permit on its roads unless the person commits
a new driving offense, this contention almost rebuts itself. This
interpretation of the Convention defies common sense. Busby offers
no reason to believe that the countries who signed the Convention
intended to give each other the authority to forgive or erase
existing driver's license revocations imposed by their fellow treaty
states. In fact, the Convention on Road Traffic suggests precisely
the opposite.
Article 5 of the Convention declares that it is "understood
that ... all ... matters not provided for in this Convention remain
within the competence of [each signatory state's] domestic
legislation". No provision of the Convention expressly limits a
signatory country's ability to enforce its pre-existing driver's
license suspensions and revocations within its own territory.
Moreover, AS 28.40.100(8) part of the "domestic legislation" of
Alaska declares that the term "driver's license" means "[a
person's] privilege to drive or obtain a license to drive ...
whether or not [the] person holds a valid license issued in this or
another jurisdiction". (Emphasis added) Thus, under Alaska law,
revocation of a person's driver's license ends that person's
privilege to drive, regardless of any other driver's licenses that
the person may possess or (as in Busby's case) may come to possess.
Additionally, we note that Article 24 of the Convention
on Road Traffic appears to be premised on the idea that each
signatory country is authorized to enforce its own driver's license
suspensions and revocations within its own territory, even though
the driver has an international driving permit and is authorized to
drive in other signatory countries. Article 24, Section 5 empowers
each signatory country to seize a person's international driving
permit if that person has committed a traffic offense that entails
the loss of their driving privileges. The second sentence of
Section 5 states that the signatory country can seize and keep the
international driving permit, but only until the person leaves that
country's territory. Requiring the country to return the
international driving permit to the departing driver makes sense
only if one supposes that the permit remains in force within other
signatory countries (at least until such time as those countries
take action against the person's driving privilege). This, in turn,
implies that each country remains free to enforce its own license
suspensions and revocations.
In People v. Platts, 655 N.E.2d 300 (Ill. App. 1995), the
Illinois Court of Appeals reached exactly this conclusion. Platts
involved a driver whose Illinois license had been revoked. Platts
moved to Canada, obtained a Canadian driver's license, and then
returned to Illinois where he was stopped for drunk driving and
also charged with driving while his license was revoked. Platts
argued that, under the provisions of the Convention on Road Traffic,
"[his] Illinois revocation was terminated when he was issued a
Canadian driver's license". The Illinois court rejected this
argument, interpreting the Convention as we have done here:
Platts's Canadian license, while valid in Canada and perhaps other
places, did not supersede the State of Illinois's pre-existing
revocation of Platts's driving privileges within that state.
We hold that the Convention on Road Traffic does not
preclude the State of Alaska from enforcing Busby's pre-existing
license revocation. That revocation was a sufficient reason for the
State of Alaska to deny Busby the right to use his international
driving permit on the roads of this state.
Busby's alternative argument that even though his prior
license revocation was a sufficient reason for the State of Alaska
to withdraw his right to use his international driving permit, the
State was obliged to initiate a new judicial or administrative
proceeding for this purpose.
Article 24, Section 5 of the Convention on Road Traffic
declares that, under certain circumstances, a signatory country need
not honor its promise to allow all drivers possessing international
driving permits to use its roads. A signatory country can "withdraw
[a driver's] right to use [an international driving permit]" within
its territory if the driver has committed a driving offense that
would entail loss of driving privileges if committed by a resident
of that country.
Busby points out that, even if we assume that his pre-
existing license revocation provided the State of Alaska with a
valid reason to withdraw his right to use the international driving
permit, the State never initiated official action against Busby's
permit. Busby argues that even though Article 24, Section 5
authorizes a signatory country to withdraw a person's right to use
an international driving permit, the permit remains in force until
the country initiates official proceedings for this purpose.
Again, we find that Busby's interpretation of the
Convention is untenable because it leads to results that are at odds
with the objectives and purpose of the Convention on Road Traffic.
According to Busby's interpretation of the Convention, after a
person's driver's license is revoked by one signatory country, the
person would be entitled to move to a new country, obtain an
international driving permit under the laws of that country, and
then resume driving in the first country unless and until the first
country realized what had occurred and initiated judicial or
administrative proceedings to withdraw the person's right to use the
permit. Under this interpretation, drivers could obtain new
international driving permits and then play a game of "cat and mouse"
with the countries that had previously suspended their licenses,
hoping that their renewed driving within those countries would
remain undiscovered. If the signatory countries had thought that
the Convention led to these results, they would not have signed the
Convention.
Busby nevertheless argues that his interpretation is
supported by the wording of Article 24, Section 5. As explained
above, Article 24, Section 5 contains two sentences. The first
sentence declares that, under certain circumstances, a signatory
country need not honor its promise to allow all drivers possessing
international driving permits to use its roads. A signatory country
can "withdraw [a driver's] right to use [an international driving
permit]" within its territory if the driver has committed a driving
offense that would entail loss of driving privileges if committed
by a resident of that country. The second sentence of Section 5
adds that a country withdrawing the use of an international driving
permit "may withdraw and retain the permit" until the period of
revocation expires or the driver leaves its territory, whichever
occurs first.
This double use of the word "withdraw" creates some
ambiguity in the English text of the Convention on Road Traffic, and
this ambiguity arguably provides some support for Busby's contention
that his international driving permit remained in force until the
State of Alaska took some positive action to "withdraw and retain
it". However, the Convention on Road Traffic was issued in both
English and French (the two official languages of the United
Nations), and the French text of Article 24 does not contain the
ambiguity found in the English version.
Interpreting a treaty written in two languages
Before we examine the wording of the French text, we
should address the rules that govern interpretation of a treaty
written in two languages.
Article 33 of the Vienna Convention on the Law of Treaties
states that "[w]hen a treaty has been authenticated in two or more
languages, the text is equally authoritative in each language, ...
[and] [t]he terms of the treaty are presumed to have the same
meaning in each authentic text." If there is an arguable
discrepancy between the two versions, Article 31, Paragraph 1 of the
Convention declares that the "treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of [the
treaty's] object and purpose." Moreover, Article 32 states that an
interpretation should be rejected if it "leaves the meaning ambiguous
or obscure; or ... leads to a result which is manifestly absurd or
unreasonable". Finally, "when a comparison of the authentic texts
discloses a difference of meaning which the application of
[A]rticles 31 and 32 does not remove," Article 33 directs a court
to adopt "the meaning which best reconciles the texts, having regard
to the object and purpose of the treaty".
The United States has not signed the Vienna Convention on
the Law of Treaties. Moreover, by its own terms, the Vienna
Convention does not apply to treaties concluded before January 27,
1980 (the date the Convention went into force). However, as the
Fifth Circuit noted in Kreimerman v. Casa Veerkamp, S.A., "Although
the United States is not a party to the Vienna Convention, it
regards the substantive provisions of the Vienna Convention as
codifying the international law of treaties." Or as the Washington
Supreme Court stated in State v. Pang, the Vienna Convention "is
accepted as the authoritative guide to treaty law and practice and
declaratory of customary international law".
In other words, both federal and state courts have
acknowledged and employed the principles of interpretation codified
in the Vienna Convention. We will too.
The French text of Article 24, Section 5
In the French text of the Convention on Road Traffic, the
first sentence of Article 24, Section 5 parallels the English text:
it declares that a signatory state (or one of its subdivisions) "peut
retirer" i.e., can withdraw or retract a driver's right to use
an international driving permit if the driver has committed a
driving offense that could entail the loss of driving privileges for
a resident of that country:
Un tat contractant ou une de ses
subdivisions ne peut retirer un conducteur le
droit de faire usage d'un des permis viss ci-
dessus que si ce dernier a commis une
infraction la rglementation nationale en
matire de circulation susceptible d'entraner
le retrait du permis de conduire en vertu de la
lgislation dudit tat ... .
But the second sentence of the French version does not suffer from
the same problem as the English text (the double use of the word
"withdraw"). Instead, the second sentence of the French text
declares that a country or political subdivision that withdraws a
driver's right to use an international driving permit "pourra se
faire remettre le permis" i.e., may require surrender or delivery
of the permit and may retain the permit until the period of
suspension has expired or until the driver leaves the country, if
that occurs first:
En pareil cas, l'tat contractant ou celle de
ses subdivisions qui a retir l'usage du permis
pourra se faire remettre le permis et le
conserver jusqu' l'expiration du dlai pendant
lequel l'usage de ce permis est retir au
conducteur, ou jusqu'au moment o ce dernier
quittera le territoire de cet tat contractant,
si son dpart est antrieur l'expiration
dudit dlai.
Thus, the French text of the Convention clarifies that a
country's (or a state's) act of withdrawing a driver's right to use
an international driving permit on its roads is distinct from any
action the country or state may take to secure physical custody of
the permit. If a country or state has withdrawn a driver's right
to use the international driving permit, it may also require the
driver to surrender the permit until the driver's right to drive is
restored or until the driver leaves its territory. But this follow-
up action (securing physical custody of the permit) is an additional
remedy available to the country or state under the Convention. The
legality of the country's or state's initial action (withdrawing the
driver's right to drive within its territory) does not depend on
whether the country or state forces the driver to surrender physical
custody of the international driving permit.
Reconciling the English and French versions of Article 24,
Section 5
Busby's case does not involve a direct inconsistency
between the English and French versions of Article 24, Section 5.
Rather, the problem in his case stems from an ambiguity in the
English text (the double use of "withdraw"), an ambiguity that might
arguably make the English text inconsistent with the French text.
In such instances, we are to presume that the two versions of the
treaty have the same meaning. This principle directs us to resolve
the ambiguity in the English text in favor of the clear meaning of
the French text.
Moreover, in ascertaining the presumed unitary meaning of
Article 24, Section 5, we are obliged to adopt the interpretation
that best reconciles the two versions in light of the Convention's
objectives and purpose. And we are to reject an interpretation that
"leads to a result which is manifestly absurd or unreasonable".
As we noted earlier, construing Article 24, Section 5 as
Busby proposes would lead to results that are at odds with the
objectives and purpose of the Convention on Road Traffic: drivers
could obtain new international driving permits and then play a game
of "cat and mouse" with countries that had previously suspended their
licenses. If the signatory countries had thought that the
Convention led to these results, they would not have signed the
Convention.
For these reasons, we conclude that Article 24, Section
5 means what the French version clearly says: a signatory country
(or political subdivision, such as a state of the United States) can
withdraw a person's right to use an international driving permit
within its borders. In such cases, the country or state may
additionally require the surrender of the international driving
permit until the person's right to drive within that country or
state is restored, or until the person leaves the territory of that
country or state (whichever occurs first). But when a signatory
country relies on a pre-existing license suspension or revocation
as the basis for prohibiting a driver from using its roads, the
signatory country's authority does not depend on whether that
country has initiated new proceedings against the driver or the
international driving permit, nor does it depend on whether that
country has required the driver to physically surrender the permit.
We further hold that, because of Busby's pre-existing
license revocation, the State of Alaska could prospectively withdraw
Busby's right to use his international driving permit on the roads
of Alaska, without the need for a new judicial or administrative
proceeding.
Summary of our conclusions regarding Article 24, Section
5 of the United Nations Convention on Road Traffic
Under Article 24, Section 5 of the Convention on Road
Traffic, signatory countries (and their political subdivisions)
retain the right to enforce license suspensions or revocations, even
when the motorist whose license was suspended or revoked later
obtains an international driving permit from another government.
If, during the term of the suspension or revocation, the motorist
returns to the country or state that imposed the suspension or
revocation and drives a motor vehicle within its territory, that
country or state can prosecute the motorist for driving with a
suspended or revoked license.
Busby's Alaska driver's license was revoked while he was
living here. Even though Busby later obtained a valid international
driving permit from another government, his driver's license
remained revoked in the State of Alaska, and the Convention on Road
Traffic does not bar the State of Alaska from enforcing Busby's pre-
existing license revocation.
Thus, even though Busby possessed an international driving
permit, he could not lawfully drive within the borders of this
state. Accordingly, we uphold the State of Alaska's authority to
prosecute Busby for driving with a revoked license.
Busby's remaining arguments
Busby asserts that the trial judge committed three errors
during his trial that require reversal of his conviction. The first
two alleged errors involve Busby's attempt to argue to the jury that
he should be acquitted because he mistakenly but in good faith
believed that he was entitled to drive in Alaska despite the fact
that his license was revoked.
First, Busby contends that the trial judge improperly
limited Busby's testimony concerning his efforts to research the
Convention on Road Traffic specifically, his research into whether
his international driving permit gave him the right to drive in
Alaska even though his Alaska driver's license was revoked.
Apparently, the trial judge allowed Busby to generally describe his
legal research to the jury, but the judge prevented Busby from going
into detail about the specific sources he consulted and what he
gleaned from those sources.
Second, Busby contends that the trial judge committed
error by instructing the jury that "it is no defense that [Busby]
believed [his act] to be lawful".
Both of Busby's arguments are premised on his assertion
that, in a prosecution for driving with a revoked license, the
government was obliged to prove that Busby acted with "knowledge"
of his license status. Busby's arguments are further premised on
the assumption that the term "license status" includes the legal
relationship between his revoked Alaska driver's license and his
later-issued international driving permit. Both of these premises
are incorrect.
In prosecutions for driving with a suspended or revoked
license, the government must indeed prove that the defendant acted
with a culpable mental state regarding the fact that their license
was suspended or revoked, but that culpable mental state is "criminal
negligence", not "knowledge". We expressly held in Gregory v. State,
717 P.2d 428, 431 (Alaska App. 1986), that "proof of criminal
negligence is the required mental state to show a violation of
AS 28.15.291".
In other words, the State did not need to prove that Busby
was subjectively aware that his license was revoked. Indeed, the
government did not even have to prove that Busby was subjectively
aware of a risk that his license was revoked. Instead, the State
merely had to prove that a reasonable person in Busby's position
would have been aware of a substantial and unjustifiable risk that
Busby's license was revoked, and that Busby's failure to perceive
this risk constituted a gross deviation from the standard of care
that a reasonable person would exercise in those circumstances.
But this is all beside the point. Busby admittedly knew
that the State of Alaska had revoked his driver's license. That
license revocation was what prompted Busby to research the law
concerning international driving permits and the United Nations
Convention on Road Traffic. Rather than claiming ignorance of his
license revocation, Busby wanted to tell the jury about his
understanding of the legal effect of that revocation. He wished to
testify that, based on his legal research, he believed that his
international driving permit entitled him to drive in Alaska despite
the fact that his license was revoked.
AS 11.81.620 declares that a defendant's "knowledge,
recklessness, or criminal negligence as to the ... meaning ... or
application of the provision of law defining an offense ... is not
an element of [the] offense unless the provision of law clearly so
provides." AS 28.15.291(a), the statute defining the crime of
driving with a suspended or revoked license, does not specify that
the government must prove anything about the defendant's subjective
understanding of the effect or scope of the license suspension or
revocation. Instead, the government must prove that the defendant
knew or should have known that the suspension or revocation had
occurred. Therefore, it was irrelevant whether Busby had researched
the Convention on Road Traffic, and it was likewise irrelevant
whether Busby had mistakenly concluded, based on this research, that
his international driving permit authorized him to drive in Alaska
despite the fact that his Alaska license was revoked.
We recognize that Busby's trial judge ruled that Busby had
a right to testify about these matters (although, as explained
above, she limited the scope of Busby's testimony). The trial judge
relied on our decision in Cornwall v. State, 915 P.2d 640 (Alaska
App. 1996). But Cornwall involved a prosecution for custodial
interference, an offense that expressly requires proof that the
defendant took or kept a child knowing that the defendant had no
right to do so.
In Cornwall, the question was whether the trial judge
should have allowed the defendant to present testimony concerning
the defendant's mistaken understanding of certain child custody
orders. We explained that this testimony was admissible because it
was relevant to the issue of the defendant's state of mind and
because one of the elements of custodial interference is the
defendant's state of mind. But we noted that this same testimony
would not have been admissible if it "had been offered for the
purpose of convincing the jury that ... there was a substantial
possibility that [the child custody] orders had no legal effect on
Cornwall" because "[t]he legal effect of the superior court's
custody orders was an issue of law to be decided by the trial judge".
Busby's case is governed by this latter rule. Busby's
understanding of the legal effect of his international driving
permit specifically, how that permit related to his revoked Alaska
driver's license, and whether it authorized him to drive in Alaska
despite his license revocation was not an element of the offense.
Rather, this was an issue of law to be decided by his trial judge.
The trial judge committed error when she allowed Busby to offer any
testimony on this issue at all but the error ran in Busby's favor.
For these same reasons, the trial judge correctly
instructed the jury that even if Busby believed that his act of
driving with a revoked license was lawful, this was no defense.
Busby's third and final claim is that the trial judge
should not have instructed the jury on "motive". The judge's
instruction read:
Motive is not an element of the crime
charged and need not be shown. However, you
may consider motive or lack of motive as a
circumstance when considering the charge. You
may give the presence or absence of motive, as
the case may be, the weight to which you find
it to be entitled.
Busby contends that there was no evidence at his trial on the issue
of whether he had any particular motive in driving while his license
was revoked. He therefore argues that the motive instruction was
"misleading" and "confusing", and that it "divert[ed] the jury's
attention" from the true issues in the case.
Motive was, in fact, raised tangentially at Busby's trial:
the State argued that Busby was motivated to obtain an international
driving permit because he knew that his Alaska driver's license had
been revoked. Thus, there was some reason to instruct the jury on
the legal significance of motive. But even leaving this aside,
Busby has not shown how the challenged instruction could possibly
have prejudiced him.
Conclusion
Although Busby had an international driving permit issued
under the provisions of the United Nations Convention on Road
Traffic, he still could not lawfully drive in Alaska while his
Alaska license was revoked, and the State was therefore authorized
to prosecute Busby for driving with a revoked license. Moreover,
Busby's mistaken belief that the international driving permit
authorized him to drive in Alaska despite the license revocation was
no defense to this charge. Accordingly, the judgement of the
district court is AFFIRMED.
FOOTNOTES
Footnote 1:
By its terms, the Convention does not apply to "the carriage
of persons for hire or reward or the carriage of goods other than
the personal baggage of the occupants of the vehicle". (Article 5)
Nor does the Convention bind a signatory country when "[a] motor
vehicle [or] driver ha[s] remained within its territory for a
continuous period exceeding one year". (Article 1, Section 2)
Footnote 2:
Article VI of the United States Constitution declares that "all
Treaties made ... under the Authority of the United States ... shall
be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding." Thus, "the treaty-making power
[of the federal government] is independent of and superior to the
legislative power of the states". Nielsen v. Johnson, 279 U.S. 47,
52; 49 S.Ct. 223, 224; 73 L.Ed. 607 (1929).
Footnote 3:
Chapter II of the Convention (Articles 6 through 16) dictates
certain basic "rules of [Fn. 4]the road". For example, Article 10
requires drivers to "drive in a reasonable and prudent manner" and
to "slow down or stop whenever circumstances so require". Chapter
III (Article 17) governs road signs. Chapter IV (Articles 18
through 23) governs license plates, vehicle registration, and
vehicle size; it also requires vehicles to "be in good working order
and in such safe mechanical condition as not to endanger the driver,
other occupants of the vehicle[,] or any person upon the road, or
cause damage to public or private property". (Article 22, Section
1) Chapter VI (Article 26) governs cycles: it requires them to
have "[a]t least one efficient brake", "[a]n audible warning device",
as well as "[a] white or yellow light in front" and "a red light or
red ... reflector in the rear ... during the night or when
atmospheric conditions render it necessary".
Footnote 4:
See id. at 301.
