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Yang v. State2/11/2005
Yang subjectively understood his legal obligation to take the breath test (and not just that a reasonable person in Yang's position would have understood the obligation). By inserting this element of subjective understanding into the instructions, Judge Erlich apparently required the jury to find that Yang acted "knowingly" or at least "recklessly" regarding his legal obligation to take the breath test, as these culpable mental states are defined in AS 11.81.900(a). In this respect, therefore, the jury instructions arguably required the State to prove more than is required under Svedlund and Brown.
Indeed, when the attorneys argued the case to the jury, both of them focused on the issue of Yang's subjective understanding of his duty to take the breath test. During their summations, both the prosecutor and Yang's defense attorney emphasized that the jury's decision on the breath test refusal charge "[came] down to whether or not ... Mr. Yang understood English."
We therefore conclude that Yang's jury was adequately instructed on his defense to the charge of breath test refusal.
Yang's challenge to Judge Erlich's decision to revoke his driver's license for 18 months
In his final point on appeal, Yang challenges one aspect of his sentence for breath test refusal - the revocation of his driver's license. Judge Erlich revoked Yang's driver's license for 18 months, based on Yang's poor driving preceding his arrest. Yang asserts that the record does not support the conclusion that his driving was bad.
Yang notes that the jury acquitted him of driving while intoxicated and of the lesser offenses of reckless driving and negligent driving. He argues that there was simply too little evidence of bad driving to support Judge Erlich's finding.
We have examined the record, and we conclude that Judge Erlich's finding that Yang drove recklessly is supported by sufficient evidence.
James Rea (a corrections sergeant in Kotzebue) testified that while he was waiting to turn onto Airport Way, a Toyota pickup truck driven by an Asian male drifted so far across the road that it almost collided with his vehicle. Rea tried to follow this pickup truck into town, but the truck was being driven so fast that Rea could not keep up. Later, when Rea was at the police station reporting this incident, he heard a vehicle "peel out" and then he saw the same Toyota pickup truck "racing by" in front of the police department. Yang was later identified as the driver of this truck.
Given this evidence, Judge Erlich could reasonably conclude by a preponderance of the evidence that Yang was driving recklessly shortly before he was arrested and then refused to take the breath test. Accordingly, we conclude that Judge Erlich was not clearly mistaken when he revoked Yang's license for 18 months as part of Yang's sentence for breath test refusal.
Conclusion
The judgment of the district court is AFFIRMED.
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