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Whiting v. State10/12/2005
sputed at Whiting's trial: the State presented testimony that the motor was running. However, we must view the facts in the light most favorable to Whiting's proposed lesser offense. )
Whiting asserts that this factual distinction is crucial - that because he was not actively attempting to start the motor, he was not "in control" of the watercraft. But Whiting's argument is inconsistent with our decisions defining "control" of a motor vehicle.
We addressed essentially the same argument in Kingsley v. State, 11 P.3d 1001 (Alaska App. 2000). The defendant in Kingsley drove his car into a snow berm, where it became stuck. Kingsley turned the engine off and decided to remain in the car. According to Kingsley, it was only then that he consumed a bottle of whiskey and became intoxicated.
Kingsley argued that, under these circumstances, he was not intoxicated when he was operating the vehicle, and he was never in "control" of the vehicle after he became intoxicated. We rejected this narrow definition of "control".
As Kingsley acknowledges in his brief to this court, a person who engages the engine of a vehicle and allows it to run is not merely exercising physical control over the vehicle but is also "operating" it. Thus, if the engine of Kingsley's vehicle had been running when the police arrived, the State might have proved that Kingsley was operating the vehicle while intoxicated. But the State had to prove only that Kingsley was in actual physical control of the vehicle while intoxicated.
It is true that [the supreme court's decision in Department of Public Safety v.] Conley [and this Court's decision in] Mezak involved defendants who did something to try to put their vehicles in motion. But we do not believe that such actions are necessary to prove that a defendant is in "actual physical control" of a vehicle. A person's attempt to operate a vehicle may furnish convincing proof that the person is in actual physical control of the vehicle, but a person may exercise actual physical control over a vehicle without making active attempts to operate it.
Kingsley, 11 P.3d at 1003.
Whiting was the one who had piloted the skiff into the channel, and Whiting remained primarily in the rear of the skiff, nearest the motor, while his girlfriend and her son sat in the front of the skiff. Under these facts, as a matter of law, Whiting was in physical control of the skiff, and he was therefore operating the skiff for purposes of the DUI statute. If the jury additionally found that Whiting was under the influence at that time, then he would be guilty of the completed crime of driving under the influence . These facts did not raise an issue of "attempt" - and, therefore, Judge Weeks correctly declined to instruct the jury on this proposed lesser offense.
The judgment of the superior court is AFFIRMED.
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