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State v. Tyszkiewicz1/14/2005
nded to set a trap by requesting that Tyszkiewicz move his car. Nor was Tyszkiewicz punished for exercising an affirmative regulatory right offered by the state.
In Leavitt, the Washington Court of Appeals reversed the defendant's convictions for unlawful possession of a firearm because a prior trial court had failed to comply with a statute's mandate to advise Leavitt that his misdemeanor conviction prohibited him from possessing a firearm. 27 P.3d at 628. But here, Gomez was under no statutory obligation to advise Tyszkiewicz that driving while impaired by alcohol was a crime before he requested that Tyszkiewicz move his car. Cf. Persaud v. City of New York, 762 N.Y.S.2d 641, 643 (2003) (police officer not negligent for failing to ask passenger in motor vehicle whether she could drive before instructing her to move vehicle from no parking zone).
The Melendez and Leavitt opinions found due process violations when the state penalized the respective defendants for the state's own failure to comply with explicit or implicit duties to the defendant. Here, Tyszkiewicz has not identified any affirmative duty to him that the state breached when Gomez instructed him to move his car. Although the situation unquestionably placed Tyszkiewicz in a difficult position, it did not rise to the level of fundamental unfairness necessary to constitute a due process violation. Cf. Commonwealth v. Herb, 852 A.2d 356, 360 (Pa. Super. Ct. 2004) (court rejected proposition that because officer gave defendant permission to move vehicle from illegal parking place defendant was relieved from criminal responsibility for driving with suspended license). We therefore conclude that Tyszkiewicz's movement of his vehicle at Gomez's request established that Tyszkiewicz drove within two hours of the time he was given the breath tests.
Tyszkiewicz's final argument is that the state did not show that Tyszkiewicz drove or was in actual physical control of a vehicle while under the influence of an intoxicant. But we have already concluded that it was not a violation of Tyszkiewicz's due process rights for the state to use the evidence that Tyszkiewicz drove at Gomez's request to satisfy the time element of § 28-692. For the same reasons, we conclude that this evidence was sufficient to establish the driving element of the statute.
We affirm Tyszkiewicz's conviction and sentence.
PETER J. ECKERSTROM, Judge
CONCURRING: JOSEPH W. HOWARD, Presiding Judge
J. WILLIAM BRAMMER, JR., Judge
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