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               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).
              This case requires us to construe Alaska’s “implied consent” statute,
AS 28.35.031(a), and to revisit our decision in Patterson v. Anchorage, 815 P.2d 390
(Alaska App. 1991).
              Under AS 28.35.031(a), a motorist — that is, “a person who operates or
drives a motor vehicle in this state” — is required to submit to a breath test if they are
lawfully arrested for an offense that “aris[es] out of acts alleged to have been committed
while the person was operating or driving a motor vehicle ... while under the influence
of an alcoholic beverage, inhalant, or controlled substance”. It is a crime for a motorist
to refuse to take a breath test authorized by this statute. 1
              In Brown v. State, 739 P.2d 182, 185-86 (Alaska App. 1987), this Court
held that when the government prosecutes a person for breath-test refusal, the
government does not have to prove that the person was in fact under the influence at the
time they were arrested and they were asked to take the breath test.
              But in Patterson v. Anchorage, 815 P.2d at 392-94, this Court held that
when the government prosecutes a person for breath-test refusal, the government must
prove that the person was in fact driving or operating a motor vehicle. In other words,
even though a person can be lawfully arrested based on probable cause to believe that
they were driving a motor vehicle while under the influence, if the government later
prosecutes that person for breath-test refusal, the government must prove beyond a
reasonable doubt that the person was in fact driving or operating the motor vehicle.
              (Patterson involved a prosecution under the Municipality of Anchorage’s
implied consent ordinance, and the holding in Patterson was based on the wording of
that municipal ordinance. But the wording of AS 28.35.031(a) is essentially the same.)




   1
       AS 28.35.032(f)-(g).

                                            –2–                                      2597

                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

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

Ladick’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

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

       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”.
              But the Patterson decision does not use the phrase “prior to the arrest”. 2
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

              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

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

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

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

              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.




                                           – 12 –                                    2597

