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State v. Simpson (8/16/2002) ap-1818
State v. Simpson (8/16/2002) ap-1818
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
STATE OF ALASKA, )
) Court of Appeals No.
A-8028
Appellant, )
Trial Court No. 3AN-00-8352 Cr
)
v. )
) O P I N
I O N
BRIAN SIMPSON, )
)
Appellee. )
[No. 1818 August 16, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Gregory J. Motyka,
Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant. Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Brian Simpson is charged with driving while intoxicated
in Anchorage in September 2000. Because Simpson has two prior
convictions for driving under the influence in Montana, the State
indicted him for felony DWI under AS 28.35.030(n) (third offense
within five years).1 But Simpson questions whether his Montana
convictions can properly be used as predicate convictions to
support the Alaska felony DWI charge.
Under AS 28.35.030(o)(4), a conviction from another
state can serve as a predicate for a felony DWI conviction in
Alaska if the other states law requires proof of elements that
are similar to the elements of DWI under Alaska law. Thus, to
resolve this appeal, we must compare the elements of Alaskas DWI
statute, AS 28.35.030(a), to the elements of Montana Statute 61-
8-401 (driving under the influence of alcohol or drugs) and
decide whether they are similar.
Simpson contends that Alaska law offers a potential
defense to a driver who is involuntarily intoxicated, but Montana
law does not. Simpson further contends that the Montana statute
differs from Alaska law because it punishes even those defendants
who perform no voluntary act. The superior court agreed with
Simpson and, for that reason, concluded that Simpsons Montana
convictions for driving under the influence did not qualify as
prior convictions under AS 28.35.030(o)(4). The court therefore
dismissed Simpsons indictment for felony DWI.
For the reasons explained here, we have significant
doubts as to whether Simpsons interpretations of Montana law are
correct. But more important, AS 28.35.030(o)(4) does not require
that an out-of-state statute be identical to Alaskas DWI law
only that it be similar. Even assuming that Alaska and Montana
differ in their treatment of involuntary intoxication or the
requirement of a voluntary act, DWI prosecutions involving these
situations i.e., situations where the driver has performed no
voluntary act, or where the driver is involuntarily intoxicated
are exceedingly rare. They are so rare that, even with these
arguable differences, we conclude that Montanas statute is
similar to Alaskas. We therefore hold that Simpsons Montana
convictions for driving under the influence qualify as prior
convictions under AS 28.35.030(o)(4).
The wording of the two statutes
Alaskas DWI statute defines the crime as
operat[ing] or driv[ing] a motor vehicle when a person
is under the influence of intoxicating liquor ... or
any controlled substance or, alternatively, when ...
there is 0.08 percent or more by weight of alcohol in
the persons blood. This definition is expanded by AS
28.40.100(a)(7), which specifies that the term driver
includes a person who ... is in actual physical control
of a vehicle.2
Montana Statute 61-8-401(1) defines that
states corresponding offense as driv[ing] or be[ing] in
actual physical control of a vehicle when a person ...
is under the influence of ... alcohol [or] a dangerous
drug. (Under Montana law, having a blood-alcohol level
of .10 or greater is not an alternative way of
committing the offense; rather, if a driver has a blood-
alcohol level of .10 or greater, this raises a
rebuttable inference that the driver is under the
influence. See Montana Statute 61-8-401(4)(c).)
It appears that Montanas statute is more
restrictive than Alaskas in terms of what actions
constitute the crime (since a person can not be
convicted in Montana based on their blood-alcohol level
alone). However, Simpson argues that Montanas statute
is significantly broader than Alaskas regarding both
the culpable mental state and the actus reus that the
government must prove.
With regard to the culpable mental state,
Simpson claims that involuntary intoxication is a
potential defense to a DWI charge in Alaska but it is
not a defense in Montana. And, with regard to the
actus reus of the crime, Simpson claims that a person
can be convicted of driving under the influence in
Montana even though the person has performed no
voluntary act.
Whether Montana and Alaska law differ regarding their
treatment of involuntary intoxication as a potential
defense to driving while intoxicated
In Morgan v. Anchorage, 643 P.2d 691 (Alaska
App. 1982), this Court examined the culpable mental
states needed to establish the offense of driving while
intoxicated. We rejected the notion that a DWI
defendant must know that they are under the influence:
We do not believe that a person who intentionally
drinks and intentionally drives must be aware that
[they are] under the influence of alcohol in order to
be convicted[.]3 However, we indicated that the
offense of driving while intoxicated requires proof
that the defendant knowingly ingested intoxicants and
knowingly operated or assumed physical control of a
motor vehicle.4
(The Morgan opinion uses the term
intentionally instead of knowingly. However, in
context, it is clear that we meant knowingly. The
culpable mental state of intentionally refers only to a
defendants conscious desire to achieve a particular
result. See AS 11.81.900(a)(1). Of the four culpable
mental states defined in AS 11.81.900(a)(1)-(4),
knowingly is the only one that applies to conduct. See
Neitzel v. State, 655 P.2d 325, 326, 333 (Alaska App.
1982), where we concluded that the statutory phrase
intentionally performs an act really was intended to
mean knowingly performs an act.)
In addition, Alaska case law recognizes the
defense of involuntary intoxication.5 However, neither
this Court nor the supreme court has been called upon
to examine how the defense of involuntary intoxication
might pertain to a charge of driving while intoxicated.
Criminal law texts on this subject suggest
that involuntary intoxication is potentially a defense
to driving while intoxicated, but only in limited
circumstances. For a general discussion of the effect
of involuntary intoxication on criminal liability, see
Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd
edition 1982), pp. 1001-05, and Wayne R. LaFave and
Austin W. Scott, Jr., Substantive Criminal Law (1986),
4.10(f), Vol. 1, pp. 558-59. These commentators
explain that involuntary intoxication is normally
treated as a species of mental defect. It does not
constitute an absolute defense to a crime, but a
defendant is allowed to show that, because of
involuntary intoxication, they meet the test for
insanity for instance, that they were unable to
appreciate the wrongfulness of their conduct or to
conform their conduct to the requirements of the law,
if that is the applicable test in that jurisdiction.6
At the same time, the text writers suggest
that we may have gone too far in Morgan when we
suggested that DWI invariably requires proof that the
defendant knowingly ingested alcohol or other
intoxicants. In their discussion of involuntary
intoxication, Professors Perkins and Boyce point out
that [a]n important qualification [must] be noted:
If one should become intoxicated as a result
of an innocent mistake, force[,] or fraud,
but after becoming drunk was still
sufficiently in possession of his faculties
to know what he was doing, and to understand
the character of his acts, and with such
knowledge and understanding should
voluntarily ... drive a motor vehicle on a
public highway, the involuntariness of the
intoxication would not excuse him because the
prohibited act itself was done voluntarily.
Perkins & Boyce, p. 999.
In contrast to the way that we
interpreted the offense of driving while
intoxicated in Morgan, Montana law designates
driving under the influence as a crime of
absolute liability.7 According to Montana
Statute 45-2-104, the phrase absolute
liability means that a person can be
convicted of the offense without having, as
to each element of the offense, one of the
[culpable] mental states of knowingly,
negligently, or purposely. In other words,
the Montana concept of absolute liability is
essentially what we would call strict
liability.8 Thus, one might argue that
Montana law would allow a defendant to be
convicted of driving under the influence even
though the defendant did not knowingly ingest
alcohol or other intoxicants.
Simpson contends that the Montana
DUI law does indeed impose strict liability
on people who are involuntarily intoxicated
people who, for example, become intoxicated
after someone slips alcohol or another drug
into their drink without their knowledge.
But Simpsons argument fails to take account
of Montana Statute 45-2-203, which codifies a
defense of involuntary intoxication.
Montana Statute 45-2-203 begins
with the general rules that an intoxicated
person is criminally responsible for his
conduct, that an intoxicated condition is not
a defense to any offense, and that a persons
intoxication may not be taken into
consideration in determining the existence of
a mental state which is an element of the
offense.9 But then the statute declares that
these rules do not apply if the person was
involuntarily intoxicated if the defendant
proves that he did not know that it was an
intoxicating substance when he consumed,
smoked, sniffed, injected, or otherwise
ingested the substance causing the condition.
We have not been able to find any
Montana appellate decision that discusses the
interplay between crimes of absolute
liability and Montanas statutory defense of
involuntary intoxication. But in the absence
of judicial clarification from the courts of
Montana, we are unwilling to assume that the
statutory defense of involuntary intoxication
is unavailable in prosecutions for driving
under the influence.
Whether Montana and Alaska law differ concerning the
requirement of a voluntary act as a necessary predicate
for criminal liability
Simpson argues that, because Montana
classifies driving under the influence as a crime of
absolute liability, there is no need for the government
to prove that the defendant engaged in a voluntary act.
Thus, under Simpsons interpretation of Montana law, a
person might be held criminally responsible for being
intoxicated and in control of a motor vehicle if, after
the person passed out from drinking, the persons
companions carried them to a parked vehicle and placed
them behind the wheel.
But Montanas doctrine of absolute liability
only exempts the government from proving the culpable
mental states that might otherwise apply to the
elements of the crime. The requirement of a voluntary
act remains a separate component of liability for any
criminal offense. Both Montana law (Montana Statute 45-
2-202) and Alaska law (AS 11.81.600(a)) declare that,
aside from any culpable mental states that may apply to
the elements of a particular crime, all crimes require
proof that the offender engaged in a voluntary act.
Our statute, AS 11.81.900(b)(62), defines
voluntary act as a bodily movement performed
consciously as a result of effort and determination or
the possession of property if the defendant was aware
of the physical possession or control for a sufficient
period to have been able to terminate it. Montana law
approaches this issue from the other direction; it
defines involuntary act rather than voluntary act. But
the result is similar, because Montana law defines
involuntary act as a bodily movement that ... is not a
product of the effort or determination of the actor,
either conscious or habitual. Montana Statute 45-2-
101(32)(d).
Although the voluntariness of a defendants
conduct is rarely disputed, it remains an implicit
element of all crimes. If voluntariness is actively
disputed, the government must prove it.10
The Montana Supreme Court has recognized that
the requirement of a voluntary act is distinct from the
culpable mental states that may be required:
[T]he minimum requirements of any criminal
offense are ... a voluntary act and companion
mental state. [Montana Statute] 45-2-202 ...
provides that [a] material element of every
offense is a voluntary act ... .
This Court has not judicially recognized
the automatism defense[, such as when] a
defendant acts during convulsions, sleep,
unconsciousness, hypnosis or seizures. [But
our] criminal codes provisions requiring a
voluntary act and defining involuntary
conduct adequately provide for such defenses.
...
State v. Korell, 690 P.2d 992, 1001 (Mont. 1984).
Simpson nevertheless argues that, under Montana law, a
crime of absolute liability does not require proof of a voluntary
act. He relies on the Montana Supreme Courts statement in State
v. West, 826 P.2d 940 (Mont. 1992), that the jury in a DUI case
need not be instructed on the requirement of a voluntary act.
But the Montana courts decision in West appears to
confuse the requirement of a culpable mental state with the
requirement of a voluntary act. Here is what the court said on
this issue:
In State v. McDole ... we held that
[d]riving under the influence is an absolute
liability offense not requiring the proof of
the mental state by the State. [Montana
Statute] 61-8-401(7) ... states that
[a]bsolute liability as provided in 45-2-104
will be imposed for a violation of this
section.
The basic reason for not requiring the
state to prove mental intent in DUI cases is
that:
[S]ituations could arise in which
defendants could not be convicted under
the statute because they were too
intoxicated to form the requisite
intent. The paradoxical and absurd
result would be that the more
intoxicated the driver became the better
his chances of avoiding liability under
the statute.
McDole, 734 P.2d at 686 (quoting Erwin,
Defense of Drunk Driving Cases, 1.05
(1986)).
The [defendants] proposed jury
instruction required the State to prove the
defendant knowingly committed the offense.
Absolute liability statutes do not require
proof of a mental state. We hold the
District Court did not err in refusing the
jury instruction defining a voluntary act.
West, 826 P.2d at 943-44.
As can be seen, the Montana Court recites all the
reasons why the government does not have to prove a culpable
mental state in DUI cases, and then the court inexplicably
concludes that the jury did not have to be instructed on the
requirement of a voluntary act. But, as the Montana court
recognized in Korell (discussed and quoted above), the
requirement of a voluntary act is distinct from the culpable
mental states that may be required by a specific criminal
offense. The fact that Montanas DUI statute does not require
proof of a culpable mental state does not lead to the conclusion
that the offense is also exempted from the requirement of a
voluntary act.
Thus, on this point as well, we find that Montana law
provides no clear answer. Despite the Montana Supreme Courts
statement in West, we are unwilling to assume that Montana law
has dispensed with the requirement of a voluntary act as a
necessary predicate for criminal liability under Montanas driving
under the influence statute. The opposite appears more likely.
Conclusion: Whatever the arguable differences between
the Montana statute and Alaskas DWI statute, they are
still similar
We have discussed (at some length) the
purported differences between the Montana offense of
driving under the influence law and the Alaska offense
of driving while intoxicated. We are not sure that
these purported differences exist. Moreover, we
conclude that these purported differences are
irrelevant to our decision of this case.
As we pointed out early in this opinion, AS
28.35.030(o)(4) does not require us to decide whether
Montana law and Alaska law are identical; rather, the
question is whether Montanas definition of driving
under the influence is similar to Alaskas definition of
driving while intoxicated.
It is conceivable that, in some instances, an
involuntarily intoxicated driver would have a defense
to DWI under Alaska law but would not have a defense
under Montana law. But instances of involuntary
intoxication are rare. Moreover, even in such
instances, a defendant charged with DWI would probably
have to assert, not only that they were involuntarily
intoxicated, but also that they had no conscious
awareness of being intoxicated before they decided to
drive or assume control of a motor vehicle. (As noted
above, there is no Alaska decision on this point, but
the passage from Perkins & Boyce quoted above suggests
that this is the applicable rule.)
Thus, any purported difference between
Montana law and Alaska law would apply only to a narrow
spectrum of unusual cases. As we pointed out in Borja
v. State (a case which dealt with the related issue of
whether an out-of-state conviction qualifies as a prior
felony for purposes of Alaskas presumptive sentencing
statutes), statutes can be similar even though they do
not completely overlap in their coverage:
[E]ven if it were possible to identify
conduct that was clearly included within the
[other states] offense and clearly excluded
from the Alaska offense, this would not
necessarily be fatal to [a finding of
similarity]. AS 12.55.145(a)(2) does not
require that the out-of-state offense be
identical to an Alaska felony only that its
elements be similar to those of an Alaska
felony. Implicit in this statutory wording
is the possibility that there will be some
acts covered by one statute that will not be
covered by the other.
Borja, 886 P.2d 1311, 1314 (Alaska App.
1994).
Applying this reasoning, we
conclude that Montanas definition of driving
under the influence is sufficiently similar
to Alaskas definition of driving while
intoxicated that a Montana conviction
qualifies as a prior conviction under
AS 28.35.030(o)(4). Thus, Simpsons Montana
convictions for driving under the influence
can be used as the predicate convictions
needed to support a felony DWI charge in
Alaska.
The decision of the superior court
is REVERSED. The felony DWI charge against
Simpson is reinstated, and this case is
remanded to the superior court for further
proceedings on that charge.
_______________________________
1 Since the time of Simpsons offense, the Alaska Legislature
has amended AS 28.35.030(n). The offense of felony DWI now
requires proof of two prior convictions within the preceding ten
years. See SLA 2002, ch. 60, 31. This amendment is not
relevant to Simpsons case.
2 In September 2000 (the time of Simpsons alleged offense),
the statute required a blood-alcohol level of 0.10 percent,
rather than 0.08 percent, to trigger criminal liability. This
difference is not pertinent to the issue raised in Simpsons
appeal.
3 Morgan, 643 P.2d at 692; see also Hoople v. State, 985
P.2d 1004, 1006 (Alaska App. 1999) ([The offense of] driving
while intoxicated ... does not require proof of any culpable
mental state regarding the circumstance that makes the
driving illegal (the fact that the driver was intoxicated or
that the drivers blood-alcohol content exceeded [the legal
limit]).).
4 See Morgan, 643 P.2d at 692.
5 See Evans v. State, 645 P.2d 155, 159 (Alaska 1982) (The
case law is ... clear that involuntary intoxication ...
constitute[s] a valid defense. This is most clearly shown
when the intoxication is the result of the force, duress,
fraud, or contrivances of another.); see also State v.
Hazelwood, 946 P.2d 875, 879 (Alaska 1997) ([I]t is always a
defense to prosecution that the conduct was not voluntary.
In every case, the alleged [criminal conduct] must have been
the product of a free will[.]).
6 Perkins & Boyce at 1005; LaFave & Scott at 558.
7 Montana Statute 61-8-401(7).
8 See AS 11.81.600(b): A person is not guilty of an offense
unless the person acts with a culpable mental state, except
that no culpable mental state must be proved ... if the
description of the offense does not specify a culpable
mental state and the offense is ... designated as one of
strict liability[.]
9 The constitutionality of this statute was upheld in
Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135
L.Ed.2d 361 (1996), reversing State v. Egelhoff, 900
P.2d 260, 264-66 (Mont. 1995).
10 See State v. Kupihea, 46 P.3d 498, 504 n.9 (Haw. 2002)
(The voluntary nature of an act is part and parcel of the
conduct element required to be proven by the prosecution.
... [All criminal offenses] require[,] as a minimum basis
for the imposition of penal liability, conduct which
includes a voluntary act or voluntary omission.); Smith v.
State, 56 S.W.3d 739, 746 (Tex. App. 2001) (the government
must prove beyond a reasonable doubt that the possessor of a
controlled substance had control over the object long enough
to allow them to comprehend that they possessed a controlled
substance and to enable them to terminate their control over
it); In re Marriage of Bartlett, 711 N.E.2d 460, 463 (Ill.
App. 1999) (in a prosecution for contempt of court, the
government must prove beyond a reasonable doubt that the
defendant performed a voluntary act and knew or reasonably
should have known that the act contravened a court order).
