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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Conkey v. State (06/10/2005) sp-5906

Conkey v. State (06/10/2005) sp-5906

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


MARK A. CONKEY,                    	)
                              			)    Supreme Court No. S-11361
               Appellant,         		)
                              			)    Superior Court No.
     v.                     			)    4FA-03-1570 CI
STATE OF ALASKA,                   	)    O P I N I O N
DEPARTMENT OF                           	)
ADMINISTRATION, DIVISION OF        	)     [No.  5906  -  June  10, 2005]
MOTOR VEHICLES,                         	)
               Appellee.      			)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Winston S. Burbank, Judge.

          Appearances:   Michael   C.   Kramer,    Cook
          Schuhmann & Groseclose, Inc., Fairbanks,  for
          Appellant.    Robert  A.   Royce,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.


          In  this  case  we must decide whether riding  a  towed

snowmobile with limited steering ability constitutes operating  a

motor vehicle under Alaska law.  Because a snowmobile is designed

to  be self-propelled, we hold that even a towed snowmobile is  a

motor  vehicle.  Because steering such a vehicle,  even  if  only

partially, involves exercising control over the vehicle, we  hold

that it amounts to operating the vehicle.  Accordingly, we affirm

the  decisions  below holding that riding a snowmobile  towed  by

another  vehicle constitutes operation of a motor  vehicle  under

Alaska law.


          In  the early morning of January 19, 2003, Officer  Jon

Miller  of  the  North  Pole  police observed  three  snowmobiles

traveling  on the shoulder of the Badger Road exit ramp  off  the

Richardson  Highway, in violation of Alaska law.1   According  to

Miller,  the  lead snowmobile was towing the second machine,  and

the towed machine would intermittently pull into the traffic lane

and  eventually lost traction and swung into the traffic lane and

stopped,  at which point the three riders stopped, got off  their

machines,  and  pushed  the  second  snowmobile  back  onto   the


          The  police  officer made contact with the drivers  and

instructed  them  to move the snowmobiles into a  nearby  parking

lot.   The  officer subsequently observed Appellant Mark  Conkey,

who  had been riding on the second machine, lose his balance  and

fall.   Conkey then removed his helmet and informed  the  officer

that his snowmobile had run out of gas and that Wesley Rice,  the

driver  of  the first machine, was towing him to the gas  station

nearby.  Officer Miller discerned that Conkey had slurred  speech

and  an  odor  of  alcohol  about his person,  and  Officer  Bill

Bellant,  who arrived on the scene after the initial stop,  noted

that Conkey had a flushed face and watery eyes.  Conkey allegedly

also  admitted  that  he  had  been  drinking.   Officer  Bellant

performed  field sobriety tests on Conkey, who  failed  them.   A

portable  breath test indicated that Conkey had  a  .122  percent

breath  alcohol concentration.  Conkey was arrested  for  driving

while intoxicated.

          Upon  arriving at the police station, Conkey was warned

that  refusal  to submit to a chemical breath test  following  an

arrest  for DWI would lead to revocation of his drivers  license.

Conkey  refused to submit to the additional test  or  answer  any

          further questions.  Following Conkeys refusal to submit to

additional  testing, his license was to be revoked,  pursuant  to

Alaskas  implied  consent  laws.2  The revocation  was  postponed

pending  the  outcome  of  a departmental  hearing  held  at  the

Fairbanks branch of the Division of Motor Vehicles (DMV).

          Following  the  hearing, departmental  hearing  officer

Rebecca  Janik found by a preponderance of the evidence that  the

police had probable cause to arrest Conkey for operating a  motor

vehicle  while  under the influence of alcohol.  Janiks  decision

offered two grounds for finding that Conkey had operated his snow

machine  while under the influence.  She first noted  that  under

Alaska  case  law, a towed and inoperable snow machine  is  still

considered  a  motor vehicle, and  suggested that because  Conkey

had  used the machines handlebars for balance and support and had

gotten  off  the machine and pushed it when stuck,  he  had  been

operating  the machine.  She then noted that based on  the  total

circumstances of the situation, the officer had probable cause to

arrest   Conkey.   Janik  also  suggested  that  because   Conkey

testified that he had been driving his snow machine before it ran

out  of gas and was then towed for only four or five miles  prior

to  contact with the police, and because Conkey was drunk at  the

time of his arrest, therefore Conkey must have been drunk earlier

while  actually driving his snow machine.  Janik also found  that

Conkey  had  unlawfully refused to provide a breath sample  after

being  legally  arrested for DWI.  Janik  accordingly  imposed  a

three-year revocation of Conkeys drivers license.

          Conkey appealed the divisions revocation of his license

to the superior court, which affirmed.  Conkey appeals.


          Where  the superior court acts as an intermediate court

of  appeal  for  an  administrative  decision,  we  directly  and

independently review the underlying administrative decision,  and

may  affirm  the  decision below on any ground supported  by  the


          We affirm an administrative agencys factual findings if

they  are  supported by substantial evidence, which we define  as

such  relevant  evidence as a reasonable  mind  might  accept  as

adequate  to support a conclusion.4  In applying this substantial

evidence test, we will not reweigh the evidence or choose between

competing inferences reasonably drawn from the evidence.5


     A.   Conkeys Snowmobile Was a Motor Vehicle.

          Conkey  argues before this court  as he did before  the

superior  court  and the DMV  that his refusal  to  submit  to  a

chemical test does not support revocation of his drivers  license

because his snowmobile was not legally a motor vehicle and he was

not operating it when he was stopped.6

          The   first  part  of  Conkeys  argument  is  that  his

snowmobile   was  merely  a  sled,  because  it  was   completely

inoperable.   It  was  out  of  gas,  the  drive  belt  had  been

disconnected rendering the engine useless, the key was not in the

ignition,  and both skis were strapped to the machine  in  front.

DWI  statutes  are generally considered remedial,  and  are  thus

liberally interpreted in favor of the public interest and against

the  private interests of the drivers involved.7  In  this  vein,

the  court  of appeals held in Williams v. State that a  vehicles

status  as  a  motor vehicle depends on whether the  vehicle  was

designed or constructed to be self-propelled, not whether  it  is

presently  capable  of  moving under its  own  power.8   Williams

involved  a  similar  towing  situation,  and  in  reaching  this

conclusion, the court of appeals stated that:

          The  public  danger addressed by Alaskas  DWI
          statute  is  the danger posed by  intoxicated
          people  who undertake to control the movement
          of  an automobile on a highway at a time when
          they are not fully capable of exercising  the
          judgement and coordination required to  drive
          safely.  An intoxicated person in control  of
          a car moving down a highway  whether that car
          is  being towed or pushed, or whether  it  is
          coasting downhill  poses an equivalent danger
          to  passengers,  to  other  drivers,  and  to
          pedestrians, whether or not the  cars  engine
          will start.  We hold that the act of steering
          a  towed car is driving within the meaning of
          AS 28.35.030(a) and AS 28.40.100(a)(7).[9]
          We  find this reasoning persuasive given the comparable

facts  and  dangers  in  this case, and thus  hold  that  Conkeys

snowmobile  was a motor vehicle, regardless of the  inoperability

of its engine at the time of his arrest.10

     B.    Conkey Was Operating His Snowmobile at the Time of His

Arrest.         Conkey next argues that he was merely a passenger

on  his  snowmobile, and thus not operating it, because he  could

not  influence  the  speed or direction at which  his  snowmobile

traveled.  Alaska courts have long defined the driver or operator

of  a  vehicle for DWI purposes more broadly than the usual sense

of those words, examining the terms in regard to whether a person

is  in actual physical control of that vehicle,11 which has  been

defined  as  the  ability to assert dominion,  in  the  sense  of

movement over the vehicle.12  Alaska courts have held drivers  to

be in actual physical control where they were behind the steering

column  and  were either controlling a vehicle while  it  was  in

motion13 or could have put the vehicle in motion.14  Thus, the key

issue  in determining whether Conkey was operating the snowmobile

is  whether he was in actual physical control of it in  light  of

the  amount  of  control  he  could exert  over  the  snowmobiles

movement from his position on the snowmobile.

          Conkey   argues  that  he  was  unable  to  steer   his

snowmobile  because  the  towing snowmobile  actually  controlled

their  direction and that therefore he was not operating a  motor

vehicle  for  the  purposes  of Alaska  DWI  statutes.   However,

contrary  to Conkeys assertion, there is evidence in  the  record

that  he  did  have some measure of control over his  snowmobile.

Indeed, Conkey was seated behind the handlebars of the snowmobile

and  the arresting officer noted that Conkey had a limited amount

of  ability to steer.  Critical to our analysis is the fact  that

in  this  case,  as  in Williams, Conkey was  in  a  position  to

exercise  control  sufficient to pose  a  significant  danger  to

          others.  He could have exercised his limited amount of control,

both  to disrupt the tow and to cause the snowmobile to veer into

traffic.15   Drivers need not have perfect control  the  Williams

court  observed  that control over towed vehicles  is  inherently

imperfect   but  only  control  that  is  sufficient  to  pose  a

significant danger to others on the road.16

          In  addition,  as Conkey admits, if the  tow  rope  had

snapped  he  would have regained full control until  the  vehicle

came  to a stop, or, in the case of a partial break in the  rope,

he  would  have found himself in a dangerous situation where  the

torque  exerted  by the remaining rope could have overturned  the

snowmobile.  In either of these circumstances, Conkey would  have

been  in actual physical control and less able to respond because

he  was  intoxicated.   Conkey  posed  the  kind  of  danger  the

legislature   had  in  mind  when  it  created   DWI   penalties.

Accordingly,  we hold that he was operating the snowmobile  as  a

matter  of  law,  his arrest was justified, and  his  refusal  to

submit  to a breath test warranted the revocation of his  drivers


          Similarly,  our  sister states are virtually  unanimous

that  the ability to steer a moving vehicle, whether it is towed,

pulled, or in motion through force of gravity, constitutes actual

physical  control for the purposes of DWI laws.17  We thus  agree

with  the  reasoning of the Williams court that where a defendant

retains sufficient control of a towed vehicle to endanger others,

he is in actual physical control of that vehicle for the purposes

of  Alaska  DWI  statutes.  This comports with both  the  liberal

interpretation of DWI statutes noted above and the public  policy

underlying the statutes; namely, to protect the public from those

driving   or   otherwise   controlling   motor   vehicles   while


     C.   We Need Not Decide Whether Conkey Was Intoxicated While
          Operating His Snowmobile Earlier in the Day.
          Conkey  also argues that the hearing officer  erred  by

basing her decision on the alternative grounds that the arresting

          officer had probable cause to believe that Conkey had been

operating  the snowmobile while intoxicated in the  hours  before

arrest.   However,  we  need not reach  this  point  because  our

holding  that Conkey was operating the snowmobile at the time  of

his  DWI  arrest is sufficient to allow us to affirm the  license



          Because  Conkeys  snowmobile was a  motor  vehicle  and

because he was operating it at the time of his arrest, we  AFFIRM

the revocation of his drivers license.

     1         13  Alaska  Administrative Code  02.455(a)  (2004)
               provides  that  [a] snowmobile or  an  off-highway
               vehicle may be driven on a roadway or shoulder  of
               a    highway   only   under   [certain   specific]
               circumstances,  none of which were  applicable  to
               this incident.
     2     See AS 28.15.165 (administrative revocations resulting
from  refusal to submit to chemical sobriety test); AS  28.35.031
(implied consent law).

     3     Leuthe v. State, Commercial Fisheries Entry Commn,  20
P.3d 547, 550 (Alaska 2001).

     4     Wilson  v.  Erickson, 477 P.2d 998, 999 & n.1  (Alaska

     5    Id. at 999.

     6     In the superior court Conkey argued that he could  not
have been operating the snowmobile because it was inoperable, and
only vaguely claimed a due process violation without elaboration.
However, in his briefing to this court Conkey adds a specific due
process  claim, arguing that the hearing officer denied  him  due
process  by  failing  to make a finding  as  to  whether  he  was
operating  his  snowmobile at the time of his stop.   We  do  not
reach the due process portion of his argument because Conkey  has
waived it.  First, because Conkey did not sufficiently raise  his
due  process  argument before the superior court, it  is  waived.
Pasco  v. State, Dept of Admin., Div. of Motor Vehicles, 45  P.3d
325,  328-29  (Alaska 2002) (holding that arguments arising  from
agency determination are waived if not raised in superior court).
Indeed,  in  the superior court and this court, Conkey  has  made
only  cursory reference to due process, relying primarily on  his
operability  argument.  Thus, his due process  argument  is  also
waived  as  insufficiently briefed.  Adamson v. Univ. of  Alaska,
819  P.2d  886, 889 n.3 (Alaska 1991) ([W]here a point  is  given
only a cursory statement in the argument portion of a brief,  the
point  will not be considered on appeal.).  Finally, Conkey  does
not mention due process in his statement of points on appeal, and
we  generally do not address arguments omitted from an appellants
statement of points on appeal.  See Gunderson v. Univ. of Alaska,
Fairbanks,  902 P.2d 323, 327 n.5 (Alaska 1995) (court  will  not
consider  arguments not raised before trial court or not included
in  statement of points on appeal).  However, to the extent it is
separate from his due process claim, we reach Conkeys operability
argument  because  it was fully briefed to  this  court,  it  was
raised  in  front of the superior court, and we can  address  the
claim  based on the existing transcript.  See Alaska R.  App.  P.
204(e)  (in addition to points in statement on appeal, court  may
consider  points  that the court can address effectively  without
reviewing untranscribed portions of the electronic record.).  See
also   Native   Vill.  of  Eklutna  v.  Bd.  of  Adjustment   for
Municipality  of  Anchorage,  995 P.2d  641,  646  (Alaska  2000)
(review  of  issue on appeal was not precluded when all  relevant
portions of electronic record were transcribed, appellant  raised
issue  before  superior court, and issue  was  fully  briefed  on

     7    Williams v. State, 884 P.2d 167, 171 (Alaska App. 1994)
(citations omitted), abrogated on other grounds by State v. Coon,
974 P.2d 386, 391 (Alaska 1999).

     8     884 P.2d at 169 (citing State v. Tacey, 150 A. 68,  69
(Vt.  1930)  (Manifestly  it  was  the  design,  mechanism,   and
construction  of  the  vehicle, and not its temporary  condition,
that the Legislature had in mind when framing the definition of a
motor  vehicle.) and Farley v. State, 170 So. 2d 625, 627  (Miss.

     9    Id. at 169.

     10    In his appeal to the superior court, Conkey argued that
the  holding  of the court of appeals in Williams  regarding  the
definition  of  a motor vehicle contradicts the holding  of  this
court  in  State,  Dept of Pub. Safety v. Conley,  754  P.2d  232
(Alaska  1988), and cited to the Conley courts statement  that  a
finding  that  the  car is reasonably capable of  being  rendered
operable   is  required  in  civil  drivers  license   revocation
proceedings.   Id. at 236 (citations omitted).   However,  Conley
involved a case where the defendant had not yet placed the car in
motion, id. at 233, while in this case, as in Williams, the towed
vehicle  was already in motion.  Williams, 884 P.2d at 171.   The
legislature created liability for DWI to combat the dangers  that
stem  from  the  operation of a moving vehicle by an  intoxicated
person,  and the operability requirement works to limit liability
to only those persons able to pose such a threat.  Once a vehicle
is in motion, operability is irrelevant  the threat envisioned by
the   legislature  is  present,  regardless  of  the   particular
mechanical state of the vehicle.  See id.

     11    Jacobson v. State, 551 P.2d 935, 937-38 (Alaska 1976).
Relatedly,  AS 28.40.100(a)(7) defines a driver as a  person  who
drives or is in actual physical control of a vehicle.

     12     Id. at 938 n.6 (quoting State v. Ruona, 321 P.2d 615,
618 (Mont. 1958)).

     13    Williams, 884 P.2d at 171.

     14     See  Conley, 754 P.2d at 236; Anchorage v. Cook,  598
P.2d 939, 942 (Alaska 1979); Jacobson, 551 P.2d at 938; Mezak  v.
State, 877 P.2d 1307, 1308 (Alaska App. 1994).

     15     Indeed, the arresting officer testified that  Conkeys
snowmobile intermittently pulled into the traffic lane and,  when
it  ultimately  lost traction, swung into the  traffic  lane  and

     16    See Williams, 884 P.2d at 174.

     17    See Williams, 884 P.2d at 168 (noting virtual unanimity
among  states  on  this  point).  Numerous courts  have  compiled
extensive lists of cases in agreement.  See, e.g., Williams,  884
P.2d  at 168-69; Colorado Div. of Revenue v. Lounsbury, 743  P.2d
23,  26-27  (Colo.  1987); see generally James O.  Pearson,  Jr.,
Annotation,  What  Constitutes Driving, Operating,  or  Being  in
Control   of   Motor  Vehicle  for  Purposes  of  Driving   While
Intoxicated  Statute or Ordinance, 93 A.L.R.3d 7, at   6  and  10