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Harvey v. State8/11/1999
MEMORANDUM OPINION AND JUDGMENT
No. 4089 - August 11, 1999
Appeal from the District Court, Third Judicial District, Kenai, M. Francis Neville, Judge, and Lynn H. Christensen, Magistrate.
MANNHEIMER, Judge, Concurring.
A jury convicted Terri Denise Harvey of being a "drunken person" on premises licensed to sell alcoholic beverages, a class A misdemeanor. Harvey appeals, contending that the statutory definition of the term "drunken person" is unconstitutionally vague, that the arresting officer should have offered her a breath test, and that she was unable to cross-examine the officer regarding this lack of a breath test. We affirm.
On December 12, 1996, Kenai Police Officer Kim Wannamaker was patrolling the area of old town Kenai when he observed Harvey walking down the road in the dark. Officer Wannamaker testified at trial that when he approached Harvey, whom he recognized, he observed that Harvey appeared "very drunk." She "reeked very strongly of alcohol," had swaying balance, slurred speech, and her eyes were "droopy."
Concerned for Harvey's well-being out in the cold and dark, Wannamaker offered to give Harvey a ride anywhere or to call a taxicab or another person for her. Harvey responded that she knew where she was going and refused Wannamaker's help. When Wannamaker asked whether Harvey was going to some nearby residences, Harvey responded that she was going to some nearby bars. Wannamaker told Harvey that due to her intoxicated state, Harvey should probably go home. Wannamaker explained to her that a "drunken person" may not knowingly enter or remain in the premises of a bar and that this was an arrestable crime and a class A misdemeanor. Harvey then walked away, and Wannamaker left to resume his patrol.
About fifteen minutes later, Officer Wannamaker went to one of the bars Harvey had named. Upon entering the bar, he saw Harvey sitting on a barstool smoking a cigarette with a full bottle of beer in front of her. Wannamaker told the bartender that Harvey was drunk and that he had warned her not to go to the bar. The bartender removed the beer bottle. Wannamaker told Harvey that she needed to leave the bar, and again offered to give Harvey a ride or to call someone or a cab for Harvey. Harvey was defiant and ignored both Wannamaker and the bartender and returned to her barstool. Wannamaker went to the front door of the bar and held it open for her, repeating that Harvey needed to leave the bar. Harvey refused to leave. Wannamaker instructed Harvey that she had one minute to make her own transportation arrangements with the bar telephone or with fellow patrons, but Harvey again refused. Wannamaker then arrested Harvey.
The bartender testified at trial that she had served Harvey a beer even though Harvey appeared "drunk." The bartender testified that she could tell Harvey was drunk by looking into Harvey's eyes and watching her actions.
The jury was instructed on the statutory definition of "drunken person." The jury ultimately convicted Harvey. On appeal, Harvey first contends that the term "drunken person" as used in the charged offense is vague and unconstitutional.
Alaska Statute 04.16.040 provides that " drunken person may not knowingly enter or remain on premises licensed under this title" to sell alcoholic beverages.
Alaska Statute 04.21.080(b)(8) defines the term "drunken person" as follows:
" runken person" means a person whose physical or mental conduct is substantially impaired as a result of the introduction of an alcoholic beverage into the person's body and who exhibits those plain and easily observed or discovered outward manif
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