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Ladick v. State (5/4/2018) ap-2597

Ladick v. State (5/4/2018) ap-2597

                                                                                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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



JOSEPH  E.  LADICK,  

                                                                                                                                                  

                                                                                                       Court of Appeals No. A-12205  

                                                                                                                                                               

                                                      Appellant,                                    Trial Court No. 3PA-13-1977 CR  



                                         v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                  

STATE  OF  ALASKA,  



                                                      Appellee.                                             No. 2597 - May 4, 2018  

                                                                                                                                                     



                           Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                                                                                      

                           Eric Smith, Judge.  

                                                   



                           Appearances:  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.*  

                                                                         



                                        

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


----------------------- Page 2-----------------------

                                    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                    



                                                                                                                                                      1  

to refuse to take a breath test authorized by this statute.                                                                                              



                                    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.)  

                                                                                                                                                                                                                       



         1        AS 28.35.032(f)-(g).                                   



                                                                                                              - 2 -                                                                                                          2597
  


----------------------- Page 3-----------------------

                                                                                                                   

                    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  



                                                               - 3 -                                                          2597
  


----------------------- Page 4-----------------------

                                                                                                                                      

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 CriminalPattern 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 had been driving [or] operating a motor vehicle prior to the arrest".  



                                                                                                                                  

                    This instruction was given at Ladick's trial, and it became a focal point of  



                                                     

the defense attorney's argument.  



                                                                                                                      

                    Based on Ladick's testimony that he drove to the power  line  easement  



                                                                                                                              

three to four hours before the state trooper arrived, Ladick's attorney argued to the jury  



                                                                                                                                

that the State could not prove the "prior driving" element of the crime by relying on the  



                                                                                                                               

fact that Ladick drove to the power line easement.   The defense attorney argued that  



                                                               - 4 -                                                          2597
  


----------------------- Page 5-----------------------

L                                                                                                                            

  adick's act of driving to the easement was temporally too remote from Ladick's arrest  



                                                                                             

to qualify as an act of driving that was "prior to the arrest":  



                      

                                                                                                  

                               Defense Attorney :  Now to prove that the defendant  

                                                                                                              

                     committed  this  crime,  the  State  must  prove  beyond  a  

                                                                                                              

                    reasonable doubt ... [that] the defendant had been driving or  

                                                                                                        

                     operating  a  motor  vehicle  "prior  to  the  arrest".                             [The  

                                                                                                        

                    prosecutor] says, "Well, [Mr. Ladick] admitted that."  



                                                                                                                  

                               [But]       you   have   to   use   some   common   sense.  

                                                                                                           

                     Everybody has been driving [at some point in] time.  I was  

                                                                                                            

                     driving when I was 18.  That's "prior" to today.  But it's not  

                                                                                                              

                     significant.  You have to use common sense.  Was [the act of  

                                                                                                        

                     driving]  "prior"  to  [his]  being arrested?                     Not  three  hours  

                                                                                                          

                    before,  [or]  four  hours  before.                    So  we'd  say  that  [the  

                                                                                        

                     government has] not satisfied that element.  



                                                                                                                                    

                     Apparently prompted by the defense attorney's argument, the jury sent a  



                                                                                                                           

note to the trial judge during their deliberations, asking the judge to define the phrase  



                     

"prior to the arrest":  



                      

                                                                                                            

                               Under the law, what is the definition of "prior to the  

                                   

                     arrest"?  

                      

                                                                                                        

                               For  example,  is  it  anytime  that  day[?]                       Or  when  

                                                                                                        

                     [Ladick]  parked  in  the  power  line  easement?                            Or  when  

                                                    

                     Trooper Blanchette arrived?  

                      

                                                                                

                               When did this "incident" start?  



                                                                                                                         

                     When the trial judge discussed the jury's question with the parties, Ladick's  



                                                                                                                            

attorney suggested  that the judge  should tell the jury  that "prior to the arrest" meant  



                                                                                                                            

"five minutes before Trooper Blanchette arrived" - because that was the State's theory  



                                                                                                                                 

as to when Ladick had arrived at the easement.  The prosecutor disagreed.  He took the  



                                                               - 5 -                                                          2597
  


----------------------- Page 6-----------------------

                                                                                                                                   

position that the concept of "driving prior to the arrest" meant "[the] driving related to  



                        

this incident".  



                                                                                                                                

                     During the  discussion  that  followed,  the  trial judge  acknowledged  that  



                                                                                                                           

Ladick's case was factually different from the typical situation where a person is actively  



                                                                                                                             

driving, gets pulled over by a police officer, is arrested, and then is asked to take a breath  



                                                                                                                                 

test.  Here, the trooper did not see Ladick driving the vehicle.  Because of this, the trial  



                                                                                                                            

judge analogized Ladick's case to the situation where a motorist drives to a gas station  



                                                                                                                        

or convenience  store,  and while the motorist is inside the store, a clerk or attendant  



                                                                                             

contacts the police to report that the motorist is intoxicated:  



                       

                                                                                                            

                               The Court:  [If] you drive to the store, and  the  cop  

                                                                                                        

                     shows up at the store because the clerk thinks you're drunk,  

                                                                                                         

                     and you refuse [the breath test], then you were driving "prior  

                                                                                                              

                     to the arrest" even though you weren't driving at the time the  

                                                                                                                   

                     officer showed up - which is kind of [the] situation [here].  

                                        

                               .   .  .  



                                                                                                     

                               So I would say that [the answer to the jury's question  

                                                                                                            

                     is] "when Mr. Ladick got in his car to go to the power line  

                                                                                                            

                     easement" - since that's the specific thing that led to him  

                                                        

                     getting "pulled over".  



                                                                                                                                 

                     The judge then gave the jury a written answer to their question:  he told  



                                                                                                                                  

them that, in Ladick's case, "prior to the arrest" meant "when Mr. Ladick got in his car  



                                                                

and drove to the power line easement."  



                                                                                                                       

                     After receiving this clarification, the jury found Ladick guilty of breath-test  



                                                                                                         

refusal, although they acquitted him of driving under the influence.  



                                                                - 6 -                                                          2597
  


----------------------- Page 7-----------------------

                 Our interpretation of AS 28.35.031(a) and                                                                   Patterson  



                                  On appeal, Ladick argues that the trial judge answered the jury's question                                                                                        



incorrectly.   More specifically, Ladick contends that the trial judge's answer improperly                                                                                                   



prevented him from arguing to the jury that his act of driving to the power line easement                                                                                                        



was too "remote" in time from his arrest - so that the State could not rely on that act of                                                                                                                         



driving to satisfy its burden under                                                 Patterson  of proving that Ladick drove or operated a                                                                            



motor vehicle "prior to his arrest".                                                     



                                                                                                                                                                                                                       2  

                                  But the            Patterson  decision does not use the phrase "prior to the arrest".                                                                                                   



That phrase was coined by the committee on Criminal Pattern Jury Instructions when  

                                                                                                                                                                                                           



they tried to incorporate the Patterson decision into the instruction on the elements of  

                                                                                                                                                                                                                   



breath-test refusal.  

                                                



                                  In fact, Patterson does not define the relationship between the defendant's  

                                                                                                                                                                                            



act  of  driving or  operating a  motor  vehicle  and  the  defendant's  arrest,  except  by  

                                                                                                                                                                                                                 



inference.  That inference arises from the facts of Patterson.  

                                                                                                                                                         



                                  The defendant in Patterson was initially charged with driving under the  

                                                                                                                                                                                                                 



influence, driving with a revoked license, and breath-test refusal.   These charges arose  

                                                                                                                                                                                                           



when a van containing Patterson and several other people backed out of a driveway and  

                                                                                                                                                                                                               



hit  a  passing car.                              All the  occupants  of  the  van  (including Patterson)  got  out,  and  

                                                                                                                                                                                                              



someone summoned the police.  

                                                                                  



                                  Sometime later (the Patterson  decision does not say how much later), a  

                                                                                                                                                                                                                     



police officer arrived to investigate the accident.  The officer was told by a witness that  

                                                                                                                                                                                                               



Patterson had gotten out of the driver's side of the van.  But when the officer spoke to  

                                                                                                                                                                                                                   



Patterson, Patterson claimed that his wife had been driving.  

                                                                                                                                                       



        2        The word "prior" occurs only once in                                                        Patterson ; it is used in the phrase "prior to                                                         



trial". 815 P.2d at 391.                                



                                                                                                       - 7 -                                                                                                  2597
  


----------------------- Page 8-----------------------

                         After   the   officer   interviewed   other   witnesses   and   conducted   a   brief  



inspection of the accident scene, the officer concluded that Patterson had been driving.                                                                            



Because Patterson appeared to                                be   intoxicated, and because his license was revoked,                               



Patterson was arrested for driving                             under the influence and                     drivingwith           a revoked license.                 



Following his arrest, Patterson refused to take a breath test, so he was also charged with                                                                 

breath-test refusal.                3  



                         But  when  the  municipal prosecutor's  office  reviewed  Patterson's  case  

                                                                                                                                                          



shortly  before  trial,  they  concluded  that  they  would  be  unable  to  prove  beyond  a  

                                                                                                                                                                



reasonable doubt that Patterson was driving the van at the time of the accident.   The  

                                                                                                                                                          



prosecutor's office therefore dismissed the DUI and revoked license charges, and the  

                                                                                                                                                             

parties went to trial solely on the breath-test refusal charge. 4  

                                                                                                                  



                         At trial, Patterson's attorney proposed an instruction informing the jury  

                                                                                                                                                           



that, to establish the crime of breath-test refusal, the government was required to prove  

                                                                                                                                                        



that Patterson had, in fact, been driving a motor vehicle - not just arrested on suspicion  

                                                                                                                                                  



of driving a vehicle.   The trial judge refused to give this proposed instruction. But on  

                                                                                                                                                              



appeal, this Court held that the instruction should have been given:  

                                                                                                                  



                           

                                      Patterson  could  be  held  criminally  liable  only  for  

                                                                                                                                   

                         refusing  to  take  a  test  as  required  under  [the  municipal  

                                                                                                                       

                         "implied   consent"  ordinance].                                   [And]   under   the  plain  

                                                                                                                               

                         language of [that ordinance], ... the obligation to submit to a  

                                                                                                                                        

                         test ... arises only from the conduct of operating, driving, or  

                                                                                                                                      

                         being  in   actual   physical   control   of   a   motor   vehicle.  

                                                                                                                                           

                         Patterson's duty to submit to a breath test thus hinged on  

                                                                                                                                     

                         whether he operated, drove, or wasin actual physical control  

                                                                                                                             

                         of his van.  

                                               



      3     Patterson , 815 P.2d at 391.                        



      4  

                                       

            Id. at 391-92.  



                                                                             - 8 -                                                                         2597
  


----------------------- Page 9-----------------------

                                                                        

Patterson, 815 P.2d at 393 (emphasis added).  



                                                                                                                                 

                     We  have  italicized  the  concluding clause  of  this  passage  because,  by  



                                                                                                                            

framing the issue as whether Patterson "operated [or] drove ...  his van",  this Court  



                                                                                                                       

appears to have been saying that it was the government's burden to show that Patterson  



                                                                                                                               

had actually been driving or operating this motor vehicle during the incident that was  



                                                                                                              

under investigation - the incident that gave rise to Patterson's arrest.  



                                                                                                                                  

                     This conclusion is bolstered by later passages of the Patterson decision -  



                                                                                                                      

in particular, the portion of the opinion where this Court emphasized that a motorist's  



                                                                                                                                

obligation to take a breath test is not triggered merely by the fact that the motorist has  



                                                                                                                                 

been lawfully arrested (i.e., not triggered merely by probable cause to believe that the  



                                                                                                                                 

person had been driving or operating a motor vehicle); rather, the obligation to take the  



                                                                                                                                    

breath test is triggered by the fact that the motorist actually was driving or operating a  



                                                                                                                     

motor vehicle during the incident giving rise to the defendant's arrest.   See Patterson,  



                                 

815 P.2d at 393-94.  



                                                                                                                          

                     This  reading of  the  Patterson  decision  -  i.e.,  construing the  implied  



                                                                                                                                    

consent statute to require proof that the defendant actually was driving or operating a  



                                                                                                                                 

motor vehicle during the incident that gave rise to the arrest - is corroborated by the  



                                                                                                                                       

provisions  of  AS  28.35.032,  the  statute  that  makes  refusing a  breath  test  a  crime.  



                                                                                                                                 

AS 28.35.032 repeatedly refers to criminal charges or civil liability "arising out of an act  



                                                                                                                             

alleged to have been committed ... while operating or driving a motor vehicle ... under  



                                                                                                                        

the influence".  For example, under AS 28.35.032(a), the police are to advise arrestees  



                                                                                                                         

that their act of refusing a breath test may be used against them in any civil or criminal  



                                                                                                                             

action  "arising out  of  an  act  alleged  to  have  been  committed  by  the  person  while  



                                                                               

operating a motor vehicle ... under the influence".  



                                                                                                                                 

                     This provision is obviously referring to civil or criminal actions arising out  



                                                                                                                                       

of the act of driving or operating that led to the person's arrest in the present instance.  



                                                               - 9 -                                                          2597
  


----------------------- Page 10-----------------------

                                                                                                                                

It seems unlikely that the legislature meant that a person's refusal of a breath test on this  



                                                                                                                              

current occasion could be used against them in civil or criminal actions  arising from  



                                                                                        

other past or future acts of driving under the influence.  



                                                                                                                                

                     For  these  reasons,  we  interpret  Patterson  to  mean  that,  when  the  



                                                                                                                             

government prosecutes a defendant for breath-test refusal, the government must prove  



                                                                                                                                

that the defendant drove or operated a motor vehicle during the incident or episode that  



                                               

led to the defendant's arrest.  



                                                                                                                                  

                     This is not a  temporal relationship; the defendant's arrest need not be  



                                                                                                                                    

contemporaneous with, or close in time to, the defendant's act of driving or operating a  



                                                                                                                             

motor vehicle.  For example, there will be times when the police are called to the scene  



                                                                                                                               

of a rural traffic accident, or are summoned to the aid of a vehicle in a ditch, long after  



                                          

any act of driving is over.  



                                                                                                                                

                     Rather,  Patterson  requires  proof  of  a  causal  connection  between  the  



                                                                                                                               

defendant's arrest and the defendant's act of driving or operating.                                          Under AS 28.- 



                                                                                                                             

35.031(a), as construed in Patterson, a person's obligation to take a breath test arises  



                                                                                                                             

from (1) their act of driving or operating a motor vehicle, and (2) their arrest for a crime  



                                                                                                                               

arising out of that driving or operating,  based on an allegation  that  the  person was  



                                                                                                                             

driving or operating the vehicle while under the influence.  Thus, the State must prove  



                                                                                                                                

that the defendant drove or operated a motor vehicle during the incident that gave rise  



                     

to the arrest.  



                                                                  

          Application of this law to Ladick's case  



                                                                                                                           

                     The DUI charge against Ladick was based on two alleged acts of driving  



                                                                                                                      

or operating: first, Ladick's act of driving his motor vehicle to the power line easement;  



                                                                                                                              

and second, Ladick's act of remaining in control of the vehicle after he arrived.  If there  



                                                              -  10 -                                                         2597
  


----------------------- Page 11-----------------------

                                                                                                                      

was probable cause to believe that Ladick was under the influence when he performed  



                                                                                                                               

either or both of these two acts, then these acts were sufficient to trigger Ladick's duty  



                                                                       

to take a breath test under AS 28.35.031(a).  



                                                                                                                           

                     As we have explained, there was conflicting testimony as to when Ladick  



                                                                                                                            

drove to the power line easement - specifically, how long before the trooper's arrival  



                                                                                                                                 

this act of driving occurred.   According to the State's evidence, Ladick arrived at the  



                                                                                                                           

power line easement only a few minutes before the trooper contacted him.  But Ladick  



                                                                                                                                     

testified that he drove to the easement three hours or more before the trooper arrived.  



                                                                                                                                 

                     This became an issue at Ladick's trial because the jury instruction on the  



                                                                                                                               

elements of breath-test refusal stated that the government was required to prove that  



                                                                                                                                 

Ladick had been driving or operating a motor vehicle "prior to the arrest".  During the  



                                                                                                                                   

defense attorney's summation to the jury, he argued that if Ladick had indeed arrived at  



                                                                                                                           

the power line easement hours before the trooper contacted him, then this act of driving  



                                                                             

was too remote in time to qualify as "prior to the arrest".  



                                                                                                                         

                     But as we have explained, Patterson does not require proof of a temporal  



                                                                                                                         

relationship between the defendant's act of driving and the defendant's arrest.  Instead,  



                                                                                                                                 

Patterson requires proof that the defendant drove or operated a motor vehicle during the  



                                                                                           

incident or episode that gave rise to the defendant's arrest.  



                                                                                                                                

                     Here,  Ladick's  arrest  arose  from  his  act  of  driving to  the  power  line  



                                                                                                                                

easement.   And at trial, Ladick conceded that he had driven his motor vehicle to  the  



                                                                                                                                 

easement.   Regardless of whether this act  of driving ended a few minutes before the  



                                                                                                                          

trooper arrived (as the State's evidence suggested) or  three hours before the trooper  



                                                                                                                                

arrived  (as  Ladick  testified),  this  act  of  driving had  the  required  connection  to  the  



                                                                                                                                 

criminal charge against Ladick.  The defense attorney therefore had no right to ask the  



                                                                                                                     

jury to ignore this act of driving (by arguing that this act of driving was not sufficiently  



                                                               

contemporaneous with Ladick's arrest).  



                                                              -  11 -                                                         2597
  


----------------------- Page 12-----------------------

                                                                                                                                

                     To  the  extent  that  the  wording of  the  pattern  jury  instruction  on  the  



                                                                                                                      

elements of breath-test refusal suggests that there is a temporal component to Patterson,  



                                                                                                                                

and that Ladick could validly ask the jury to acquit him based solely on the ground that  



                                                                                                                     

his act of driving was not sufficiently contemporaneous with his arrest, we disapprove  



                                                                   

that portion of the pattern jury instruction.  



                                                                                                                                  

                     Thus, when Ladick's jury asked the trial judge to clarify the meaning of  



                                                                                                                                  

"prior to arrest" the judge should have simply told the jurors that the government had to  



                                                                                                                                

prove that Ladick drove or operated a motor vehicle during the incident or episode that  



                                                                                                                                  

gave rise to his arrest.   Instead, the trial judge told the jurors that the relevant act of  



                                                                                                                                    

driving was "when Mr. Ladick got in his car and drove to the power line easement".  



                                                                                                                          

                     Normally, a judge should not instruct the jury using words which suggest  



                                                                                                                                 

that the judge has reached a conclusion on issues of fact - issues such as whether the  



                                                                                                                                

defendant engaged in an act of driving.  But here, Ladick expressly conceded (in his trial  



                                                                                                                                 

testimony) that he drove his vehicle to the power line easement.  Thus, even though the  



                                                                                                                                  

judge's answer to the jury might be read as assuming the truth of this fact, there was no  



           

error.  



           Conclusion  



                                                                                  

                     The judgement of the superior court is AFFIRMED.  



  



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