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Samples v. Municipality of Anchorage (6/29/2007) ap-2107

Samples v. Municipality of Anchorage (6/29/2007) ap-2107

                             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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