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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
| WILLIAM C. SAMPLES, | ) |
| ) Court of Appeals No. A-9719 | |
| Appellant, | ) Trial Court No. 3AN-06-15707 MO |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) No. 2107 - June 29, 2007 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Brian Johnson,
Magistrate.
Appearances: William C. Samples, pro se, for
the Appellant. Amy K. Doogan, Assistant
Municipal Prosecutor, and James N. Reeves,
Municipal Attorney, Anchorage, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
William C. Samples was charged with speeding. He
requested a jury trial, but District Court Magistrate Brian
Johnson denied the request. After a bench trial, Magistrate
Johnson found Samples guilty of speeding.
On appeal, Samples argues that Magistrate Johnson erred
in finding that he was not entitled to a jury trial. However, a
speeding ticket is generally not a criminal proceeding where the
accused has a right to a jury trial, and Samples has not shown
that he was at risk of losing his drivers license. Therefore,
Magistrate Johnson did not err in denying Sampless motion for a
jury trial.
Samples also argues that Magistrate Johnson erred in
failing to review the documents he brought to court, failing to
ordering a hearing on whether laser speed readings are admissible
as scientific evidence, failing to find that he was caught in an
illegal speed trap, and failing to require the Municipality to
prove its case beyond a reasonable doubt. Samples did not
preserve these issues for appeal, and none qualifies as plain
error.
Finally, Samples argues that there was insufficient
evidence for Magistrate Johnson to find that he was speeding.
But, a police officer testified that he visually observed
Sampless car, a 1993 Ford Mustang convertible with the top down,
traveling at approximately 85 miles per hour. The officer also
testified that his laser speedmeter showed the car was traveling
at 88 miles per hour and that the applicable speed limit was 65
miles per hour. Because there was sufficient evidence for
Magistrate Johnson to find that Samples was speeding, we affirm
Sampless conviction.
Facts and proceedings
On July 13, 2006, at approximately 3:39 p.m., Anchorage
Police Officer Richard J. Dykstra II was parked on the side of
the Glenn highway near Mirror Lake and observed a convertible
pass his location at approximately 85 miles per hour. The
posted speed limit was 65 miles per hour. Officer Dykstra
activated his Light Detection and Ranging (LIDAR) laser
speedmeter, which showed that the car was traveling at 88 miles
per hour. He stopped the car and charged the driver, Samples,
with speeding.1
Samples requested a jury trial, but Magistrate Johnson
told him he was not entitled to a jury trial in a traffic case.
At trial, Samples cross-examined Officer Dykstra on various
technical aspects of the LIDAR laser and its proper use,
including the use of tripods to steady the instrument; the use of
multiple officers so that the laser speedmeter can be used to
monitor traffic traveling away from the instrument; cosine, sine,
and tangent errors; atmospheric conditions; errors caused by
sweeping the laser across different points of the car; and other
possible problems. But Samples did not elicit any evidence as
to how these aspects of the laser and its use affected the
reading in his case. Moreover, Officer Dykstra testified that
the angle of the laser beam actually benefitted Samples, and that
he was probably going closer to 91 miles per hour. Officer
Dykstra also stated that his visual observation was more
important than the laser reading; the laser simply corroborated
his visual observation.
Magistrate Johnson summarized the case: Officer Dykstra
testified that he visually observed the car going approximately
85 miles per hour, there was nothing to indicate that the laser
was not functioning properly in this case, and the laser reading
showed that Samples was going 88 miles per hour. He found
Samples guilty of speeding.
Discussion
Magistrate Johnson did not err in denying
Sampless request for a jury trial
Samples argues that Magistrate Johnson erred in denying
his request for a jury trial. The accused is entitled to a jury
trial in all criminal prosecutions.2 This includes all cases
where the accused is charged with an offense that carries a
potential penalty of: (1) imprisonment, (2) loss of a valuable
license (including a drivers license), or (3) a fine so large as
to connote criminality.3
However, the right to a jury trial does not extend to
such relatively innocuous offenses as wrongful parking of motor
vehicles, minor traffic violations, and [regulatory] violations
... so long as incarceration is not one of the possible modes of
punishment.4 Trials involving traffic infractions are quasi-
criminal proceedings.5 As the Alaska Supreme Court has noted,
the term quasi-criminal encompasses minor offenses which are
criminal rather than civil in nature but do not meet the Baker
test for the right to jury trial.6
Here, the fine for speeding twenty or more miles per
hour over the designated speed limit is twelve dollars for each
mile per hour over the limit.7 Samples was driving twenty-three
miles per hour over the speed limit and, therefore, faced a $276
fine. Samples did not face any potential of incarceration, and
his fine of $276 is not heavy enough to be taken as a gauge of
the ethical and social judgments of the community, thereby
requiring a jury trial.8
The more difficult issue is Sampless argument that he
should be afforded a jury trial because his speeding conviction
could result in the loss of his drivers license. As noted above,
the accused has a right to a jury trial when charged with an
offense that carries a potential penalty of the loss of a drivers
license.9 Under the Alaska Administrative Code, when a driver is
convicted of speeding more than twenty miles over the posted
speed limit, the Department of Motor Vehicles enters six points
against the drivers driving record.10 If the driver accumulates
twelve or more points in a twelve-month period or eighteen or
more points in a twenty-four month period, the drivers license is
suspended or revoked.11
The Municipality notes that this type of license
revocation occurs as part of an administrative proceeding, not as
part of the sentence for speeding.12 And it points to Baker v.
Fairbanks,13 where the Alaska Supreme Court held that the right to
a jury trial does not extend to revocation of licenses pursuant
to administrative proceedings where lawful criteria other than
criminality are a proper concern ... [and] the basis of
revocation or suspension ... is ... that the individual is not
fit to be licensed, apart from considerations of only guilt or
innocence of crime.14 However, Samples argues that, because the
administrative code requires revocation of a drivers license
based solely on guilt of certain crimes and not the other
considerations mentioned in Baker, the right to a jury trial must
apply to those underlying convictions.
Samples has not presented any evidence that his
conviction directly resulted in the loss of his license or that
he was even at risk of having his license suspended solely due to
his speeding ticket. And, while it is possible that Samples
will accumulate an additional six points within one year or
twelve points within two years and, for that reason, have his
license suspended or revoked, it is also possible that Samples
will not commit future traffic offenses and the points assessed
for the current conviction will not count toward a future license
suspension or revocation. Because Sampless case does not raise
this issue, we express no opinion on whether a motorist in this
position would be entitled to a jury trial.
Samples was not charged with an offense that carried a
potential penalty of imprisonment, loss of a valuable license, or
a fine so large as to connote criminality. Accordingly,
Magistrate Johnson did not err in denying Samples a jury trial on
his speeding ticket.
Magistrate Johnson did not commit plain error
when he failed to review, sua sponte, the
documents Samples brought to court
Samples argues that Magistrate Johnson should have
reviewed the manuals, drawings, and calculations regarding laser
speed readings that Samples brought to court. However, Samples
never asked Magistrate Johnson to review the documents.
Accordingly, he must show plain error.15
Samples used the documents he brought to court to
extensively cross-examine Officer Dykstra on the reliability and
use of the LIDAR laser speedmeter. Because Samples used these
documents solely for his examination and as his personal notes,
Magistrate Johnson did not commit plain error in failing to ask
Samples if he could review the documents.
And even if Magistrate Johnson erred in failing to
review the documents, any error was harmless. Although Samples
argued that there are potential problems with laser speedmeters
in general, he did not show that any of the potential problems
occurred in this case. Officer Dykstra testified that he checks
the alignment of the laser before and after every shift; that any
potential sine, cosine, and tangent errors would actually benefit
Samples; that he does not sweep cars with the speedmeter; and
that he holds the speedmeter up to his cheek, using his body as a
human tripod. Magistrate Johnson found theres just nothing here
to indicate to me that the laser wasnt functioning appropriately.
Magistrate Johnson did not commit plain error
when he failed to order a hearing, sua
sponte, on whether laser speed readings are
admissible as scientific evidence
Next, Samples argues that Magistrate Johnson erred in
failing to order a hearing under Daubert v. Merrell Dow
Pharmaceuticals, Inc.16 to determine whether laser speed readings
are admissible in court as scientific evidence.17 However,
Samples did not raise this issue at trial. Accordingly, again,
he must show plain error.18
A plain error is an error that is so obvious that any
competent judge or attorney would have recognized it.19 Many
courts have recognized the general reliability of laser speed-
detection devices and have deemed their results admissible in
court.20 Because many courts have found that readings from laser
speedmeters are admissible, Magistrate Johnsons failure to hold a
Daubert hearing on the admissibility of the laser speedmeter
reading is not an error that is so obvious any competent judge
would have recognized it. Magistrate Johnson therefore did not
commit plain error.
Magistrate Johnson did not commit plain error
when he failed to find, sua sponte, that
Samples had been subjected to an illegal
speed trap
Samples also argues that he was caught in an illegal
speed trap. However, it appears that Samples explicitly waived
this argument in the district court. At his trial, Samples noted
that Alaska does not have a statute dealing with speed traps, and
he asked the court whether the Alaska State Troopers have
administrative oversight over speed traps. At this point,
Magistrate Johnson asked Samples to clarify what he meant; the
magistrate said, I dont know what youre talking about to be
perfectly honest, sir. Samples responded, All right, sir, Ill
just let that go then. Samples never returned to this subject in
the district court.
But even assuming that Samples is authorized to raise
this speed trap issue on appeal as a claim of plain error, we
find no plain error. Alaska law contains no definition of speed
trap, and Samples does not define what he means by this term.
Under California law, an unlawful speed trap is either
(1) a stretch of state highway that has been pre-measured, and
set with markers, so that the police can simply use a stopwatch
to time the passage of vehicles through the zone and thereby
determine their speed, or (2) a stretch of state highway where
the normal speed limit has been lowered without justification
i.e., lowered in the absence of a traffic engineering study whose
results would justify lowering the speed limit at that point in
the highway.21
The facts of Sampless case do not fit either of these
definitions. Sampless speed was measured with a laser
speedmeter. And Samples was not charged with violating an
unexpectedly or unjustifiably low speed limit. Rather, he was
charged with exceeding a posted speed limit of 65 miles per hour.
We take judicial notice that this is the highest speed limit
currently posted in this state.
In sum, Samples offers no definition of speed trap that
would apply to the facts of his case. Samples is a motorist who
was caught speeding by a law enforcement officer who was parked
along a highway, using a laser to measure the speed of passing
vehicles. There is nothing in either Alaska law or California
law to suggest that this strategy of traffic enforcement
constitutes an unlawful speed trap. Accordingly, Magistrate
Johnson did not commit plain error when he failed to sua sponte
dismiss the charges against Samples on this basis.
Magistrate Johnson did not apply an incorrect
burden of proof
Samples argues that he was not afforded a presumption
of innocence and that Magistrate Johnson did not require the
Municipality to prove the offense beyond a reasonable doubt. The
Alaska Supreme Court has held that criminal procedures, including
the requirement of proof beyond a reasonable doubt, apply to
quasi-criminal proceedings such as trials involving traffic
infractions.22
Here, Magistrate Johnson did not explicitly state the
applicable burden of proof. But he did not state or even imply
that he was holding the Municipality to a lower burden than the
burden of proof beyond a reasonable doubt. He simply stated that
the question was whether Samples was speeding, and he found
Samples guilty. We find no reason to believe that Magistrate
Johnson held the Municipality to an incorrect burden of proof or
failed to afford Samples the presumption of innocence.
There was sufficient evidence for Magistrate
Johnson to find Samples guilty of speeding
Finally, Samples argues that Officer Dykstras testimony
was inconsistent and uncorroborated and, therefore, he should
have been acquitted of speeding. However, Officer Dykstra
testified that Samples was driving at approximately 85 miles per
hour, that the laser speedmeter indicated that Samples was
traveling at 88 miles per hour, and that the applicable speed
limit was 65 miles per hour. This testimony was sufficient for
Magistrate Johnson to find Samples guilty of speeding.
Conclusion
Sampless conviction is AFFIRMED.
_______________________________
1 AMC 9.26.030.C.
2 U.S. Const. amend. VI; Alaska Const. art. I, 11; Baker v.
Fairbanks, 471 P.2d 386, 401 (Alaska 1970).
3 Alexander v. Anchorage, 490 P.2d 910, 912-13 (Alaska
1971); Baker, 471 P.2d at 401-402; State v. Auliye, 57 P.3d 711,
714 (Alaska App. 2002).
4 Baker, 471 P.2d at 402 (Alaska 1970).
5 State v. Clayton, 584 P.2d 1111, 1113 (Alaska 1978).
6 State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738, 745
(Alaska 1998).
7 AMC 9.48.130.
8 Baker, 471 P.2d at 402 n.29. See also Dutch Harbor
Seafoods, 965 P.2d at 742 ($3000-$6000 fine does not connote
criminality in context of highly regulated, multi-million dollar
fishing industry); State v. ONeill Investigations, Inc., 609 P.2d
520, 538 (Alaska 1980) ($5000 civil fine for unfair or deceptive
trade practices does not render proceedings criminal
prosecutions).
9 Alexander, 490 P.2d at 913; Baker, 471 P.2d at 402 & n.28;
Auliye, 57 P.3d at 714.
10 13 AAC 08.210.
11 13 AAC 08.230.
12 See 13 AAC 08.210; 13 AAC 08.230.
13 471 P.2d 386.
14 Id. at 402 n.28. See also Alaska Bd. of Fish and Game v.
Loesche, 537 P.2d 1122, 1125 (Alaska 1975) (holding that the
right to a jury trial does not extend to administrative
proceeding involving loss of a guiding license where fitness to
practice that profession is the primary concern); In Re
Cornelius, 520 P.2d 76, 83 (Alaska 1974), abandoned on other
grounds in Disciplinary Matter Involving Buckalew, 731 P.2d 48
(Alaska 1986) (holding that the right to a jury trial does not
apply to Bar disciplinary proceedings); State v. District Court,
927 P.2d 1295, 1296-97 (Alaska App. 1996) (holding that minors
charged with illegally consuming alcohol are entitled to a jury
trial when loss of a drivers license is a required component of
the sentence).
15 Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)
(arguments not raised below are considered waived on appeal
absent plain error).
16 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d. 469 (1993).
17 Id. at 592-94, 113 S. Ct. at 2796-97 (construing the
federal rules governing expert testimony); State v. Coon, 974
P.2d 386, 389-99 (Alaska 1999) (adopting Daubert as the proper
interpretation of Alaskas rules governing expert testimony).
18 Wettanen, 749 P.2d at 364.
19 Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
20 See State v. Williamson, ___ P.3d ___, ___ 2007 WL 1438128
at *2-3 (Idaho App. May 17, 2007) (collecting authorities from
other states holding that laser speed detection devices are
generally reliable and their results admissible in court).
21 Ann. Cal. Vehicle Code 40802(a). See also Ann. Cal.
Vehicle Code 40803-40804.
22 See Dutch Harbor Seafoods, 965 P.2d at 745; Clayton, 584
P.2d at 1113-15.
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