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Ladick v. State

Court of Appeals of Alaska

May 4, 2018

JOSEPH E. LADICK, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Trial Court No. 3PA-13-1977 CR, Palmer, Eric Smith, Judge.

          Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Nancy R Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.[*]

          OPINION

          MANNHEIMER JUDGE.

         This case requires us to construe Alaska's "implied consent" statute, AS 28.35.031(a), and to revisit our decision in Patterson v. Anchorage, 815 P.2d 390 (Alaska App. 1991).

         Under AS 28.35.031(a), a motorist - that is, "a person who operates or drives a motor vehicle in this state" - is required to submit to a breath test if they are lawfully arrested for an offense that "aris[es] out of acts alleged to have been committed while the person was operating or driving a motor vehicle ... while under the influence of an alcoholic beverage, inhalant, or controlled substance". It is a crime for a motorist to refuse to take a breath test authorized by this statute.[1]

         In Brown v. State, 739 P.2d 182, 185-86 (Alaska App. 1987), this Court held that when the government prosecutes a person for breath-test refusal, the government does not have to prove that the person was in fact under the influence at the time they were arrested and they were asked to take the breath test.

         But in Patterson v. Anchorage, 815 P.2d at 392-94, this Court held that when the government prosecutes a person for breath-test refusal, the government must prove that the person was in fact driving or operating a motor vehicle. In other words, even though a person can be lawfully arrested based on probable cause to believe that they were driving a motor vehicle while under the influence, if the government later prosecutes that person for breath-test refusal, the government must prove beyond a reasonable doubt that the person was in fact driving or operating the motor vehicle.

         (Patterson involved a prosecution under the Municipality of Anchorage's implied consent ordinance, and the holding in Patterson was based on the wording of that municipal ordinance. But the wording of AS 28.35.031(a) is essentially the same.)

         In this appeal, the defendant, Joseph E. Ladick, argues that the government is not allowed to prove the element of driving or operating merely by showing that the defendant drove or operated a motor vehicle at some point prior to the defendant's arrest. We agree.

         However, Ladick also argues that a defendant's act of driving or operating a motor vehicle does not satisfy the Patterson requirement unless that act of driving or operating is close in time to the defendant's arrest. We disagree with this contention. Neither Patterson nor the underlying statute, AS 28.35.031(a), requires any specific temporal relationship between the defendant's act of driving or operating a motor vehicle and the defendant's arrest. Rather, Patterson and the statute require a causal relationship.

         Under AS 28.35.031(a) - as construed in Patterson - a person becomes obligated to take a breath test if (1) they operate or drive a motor vehicle and (2) they are lawfully arrested for an offense "arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle ... under the influence".

         For the reasons explained in this opinion, we interpret this language to mean that, when the State prosecutes a person for breath-test refusal, the State must prove that the defendant was the driver or operator of the motor vehicle during the act of driving or operating that gave rise to the defendant's arrest.

         In Ladick's case, the jury found that the government met that burden. We therefore affirm Ladick's conviction for breath-test refusal.

         Underlying facts, and the litigation of Ladick's case

         Ladick was prosecuted for refusing to take a breath test after he was arrested for DUI. This case arose when State Trooper Kevin Blanchette found Ladick sitting in his parked car, intoxicated, in a power line easement along the Parks Highway. According to the trooper, Ladick said that he had been there for about five minutes, and the trooper testified that the hood of Ladick's car was still warm to the touch.

         Trooper Blanchette arrested Ladick for driving under the influence, and Ladick then declined to take a breath test. Accordingly, Ladick was charged with both DUI and breath-test refusal.

         At trial, Ladick testified that he had driven to the power line easement three hours or more before the trooper arrived, and that he was sober at that time. According to Ladick, he started drinking beer shortly after he parked the car, and he spent the next hour or so walking through the woods and drinking a six-pack of beer. He then returned to his car and stayed by the vehicle until the trooper arrived (which, according to Ladick's account, was about two and a half hours later).

         As we explained earlier, this Court's decision in Patterson holds that when a defendant is prosecuted for breath-test refusal, the government must prove to the jury that the defendant was driving or operating a motor vehicle. In other words, this is an essential element of the crime of breath-test refusal.

         After this Court decided Patterson, the committee on Criminal Pattern Jury Instructions drafted an instruction on the elements of breath-test refusal. That pattern instruction informs the jury that one of the elements the government must prove is that "the defendant ...


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