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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
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
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
shoulder.
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.
III. STANDARD OF REVIEW
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
record.3
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
IV. DISCUSSION
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
license.
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
intoxicated.
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
revocation.
V. CONCLUSION
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
1970).
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
appeal).
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.
1965)).
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
stopped.
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
(1979).
