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STATE v. LAWLER6/21/1996
y accurate way of determining mesh size either before or after fishing.
The regulation's reference to measurement of a net that is wet "after use," would have significance only if there was evidence to indicate that the mesh size of a wet net might vary depending on the cause of its wetness — that is, depending on whether it was made wet through actual use in fishing or through some other means, before fishing. The record contains no such evidence.
To determine his net's mesh size, Lawler chose to rely on a measurement performed on a dry net that was stretched by hand instead of being "suspended vertically from a single peg or nail, under five-pound weight." 5 AAC 39.975(11). The trooper who performed the pre-fishing measurement for Lawler expressly warned Lawler that it was informal and that an accurate measurement could be obtained only by following the method prescribed by the regulation defining "stretched measure." Lawler failed to demonstrate below, and he has failed to explain on appeal, why he could not have wet his net by means other than fishing it, and then proceeded with the exact method of measurement specified in the challenged regulation. Nothing in the record suggests that Lawler would have obtained a misleading or inaccurate result had he done so.
As the proponent of a motion to dismiss for vagueness, Lawler bore the burden of proving his claim. State v. Martushev, 846 P.2d at 149. To meet this burden, Lawler was required "to prove [that] information concerning the law [in this case, whether his net was undersized] was not made reasonably available, that he made reasonable efforts to act lawfully and that he subjectively did not know that his conduct was criminal and believed that there was `no risk of criminality.'" Id. at 149 (quoting Shetters v. State, 832 P.2d 181, 183 (Alaska App. 1992)).
Lawler has failed to meet his burden of proving that the challenged regulation's definition failed to make an accurate form of measurement "reasonably available" to him or "that he made reasonable efforts to act lawfully." State v. Martushev, 846 P.2d at 149. Accordingly, the district court erred in dismissing Lawler's case based on the purported vagueness of the charge.
The order of dismissal is REVERSED.
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