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Peterson v. State4/9/2003
MEMORANDUM OPINION AND JUDGMENT
No. 4688
Jon G. Peterson was convicted of driving while intoxicated after the police found him asleep and intoxicated in the driver's seat of his truck. Peterson stipulated at trial that his blood alcohol level was above the legal limit but disputed that he was "operating" his vehicle. He argued that he was not "operating" his vehicle because the engine was off and the keys were on the floorboard. He claimed that the arresting officer lied when he testified that the keys were in the ignition and that the engine was idling.
On appeal, Peterson argues that the court erred by instructing the jury during deliberations that it could convict him of driving while intoxicated even if his engine was off. Because the court correctly instructed the jury, we affirm Peterson's conviction.
Facts and proceedings
On August 30, 2001, at about 3:30 a.m., Alaska State Trooper Patrick Nelson saw a truck parked in the front yard of a residence in North Pole with its brake lights and turn signal on. Trooper Nelson approached the vehicle to see if anything was wrong and found Peterson asleep in the driver's seat. The radio was on loud enough that Trooper Nelson could hear it outside the truck with the windows rolled up. After Trooper Nelson knocked on the window several times, Peterson woke up and shouted: "Fuck you, get the fuck out of here, this is private property, you have no right to arrest me." Trooper Nelson decided to break off the contact and call for back-up.
When North Pole Police Sergeant Paul C. Lindhag arrived, the two officers approached Peterson's vehicle again. When Peterson rolled down his window and stepped out of the truck, Trooper Nelson smelled a strong odor of alcohol and saw open containers of alcohol in the vehicle. Although Trooper Nelson administered field sobriety tests, he did not testify about Peterson's performance on those tests because the parties stipulated that a breath test showed that Peterson's breath alcohol level was above .10 within four hours of the contact.
At trial, Trooper Nelson testified that Peterson's truck was idling when he first contacted Peterson. However, on cross-examination, Trooper Nelson conceded that he did not write in his report that the truck's engine was running and that photographs of the scene showed keys on the floorboard of the truck. The State then presented testimony by Sergeant Lindhag that although Peterson's truck was not running when he arrived as back up, the headlights were on and the keys were in the ignition in the "on" position. Sergeant Lindhag testified that at some point during the contact he saw Peterson pull the keys out of the ignition and put them on the floor of the truck. Peterson urged the jury to disbelieve the testimony of these two officers and to acquit him of driving while intoxicated based on the evidence that his engine was off and his keys were on the floorboard when the police first contacted him.
During deliberations, the jury foreperson sent this question to the court:
I'm confused wheather this is an operating or driving case. Does the engine have to be running in order to be operating a vehicle or do you just have to be in possession of they keys w/ them in ignition? To be convicted of driving while intoxicated.
In response to this question, District Court Judge Raymond M. Funk instructed the jury as follows:
The second element of the offense, under either theory, requires proof of either driving or operating. This element is met if you find proof beyond a reasonable doubt that the defendant either drove or operated.
To be operating the m
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