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Blanche v. Municipality of Anchorage3/11/1998
MEMORANDUM OPINION AND JUDGMENT
Thomas A. Blanche pled no contest to the municipal offense of driving while intoxicated. Anchorage Municipal Code (AMC) § 09.28.020. Blanche appeals the denial of his motions to suppress and to dismiss by District Court Judge Michael L. Wolverton. See Cooksey v. State, 524 P.2d 1251, 1256-57 (Alaska 1974). We affirm.
Blanche attached a copy of the police report to his motions. (There was no evidentiary hearing in this case.) According to that report, in the early morning of March 30, 1996, Anchorage Police Officer Daniel Seely was on patrol when he saw Blanche's vehicle, with its parking lights on, partially blocking the entrance to a medical plaza. Blanche, the only occupant of the vehicle, was seated in the driver's seat and appeared to be sleeping or to have passed out. Seely awakened Blanche. Blanche appeared to be intoxicated. Blanche explained that the car's ignition was hot-wired because he had lost the keys. Blanche performed field sobriety tests. He was arrested for driving while intoxicated. Seely impounded the vehicle. Seely could not start the car because the battery was low. Seely also noticed that the gasoline gauge read empty.
Blanche moved to dismiss the case, arguing that the facts described in the police report were insufficient to sustain a conviction because "the facts in this case do not meet the legal definition of actual physical control." Blanche also moved to suppress the evidence, claiming he had been illegally arrested because there was no probable cause to believe he was in actual physical control of the car. Judge Wolverton denied the motions. Under AMC § 09.28.020(B), the offense of driving while intoxicated occurs when a person "operates, drives or is in actual physical control of a motor vehicle" while intoxicated. The ordinance explicitly defines "physical control" as
behind the steering apparatus of a motor vehicle, whether asleep or awake, while the engine is running or any electrical or mechanical devices are turned on, or to be in a position to exercise exclusive control over the operation of the vehicle while possessing the apparent means to start the vehicle and the apparent ability to do so.
AMC § 09.28.020(E)(3) (emphasis added).
Blanche argues that the facts described in the police report do not satisfy the definition of "physical control" because he did not possess "the apparent means to start the vehicle and the apparent ability to do so." However, as the municipality points out, Blanche was "behind the steering apparatus of a motor vehicle, whether asleep or awake, while the engine is running or any electrical or mechanical devices are turned on."
Blanche also claims he was not in actual physical control of the vehicle because the vehicle was not "reasonably capable of being rendered operable," as the supreme court has required for civil driver license revocation proceedings. See State, Dept. of Public Safety v. Conley, 754 P.2d 232, 236 (Alaska 1988). Even assuming that this requirement applies to AMC § 09.28.020 and limits the explicit municipal ordinance defining "physical control," it appears that this requirement was met. Although Seely did not start the car after Blanche was arrested, it appears that Blanche needed only a jump and perhaps some gas to start the car. It was therefore "reasonably capable of being rendered operable" (emphasis added).
We therefore reject Blanche's contention that the municipality had insufficient evidence to convict him of driving while intoxicated especially given the inference that the car had recently been driven to its location blocking the medical plaza parking lot. For the same reasons, we a
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