Cite as Kosrae v. Phillip,13 FSM Intrm. 285 (Kos. S. Ct. Tr. 2005)

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CRIMINAL CASE NO. 123-04

Hearing: April 7, 2005
Decided: June 21, 2005

APPEARANCES:

HEADNOTES

Criminal Law and Procedure – Traffic Offenses

Driving under the influence is driving a vehicle while under the influence of alcoholic drink or a controlled substance or any other intoxicating substance. Kosrae v. Phillip, 13 FSM Intrm. 285, 288 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure – Traffic Offenses

The term "under the influence" as establishing a standard of conduct subject to criminal liability, has existed and has been enforced since at least 1970, first as a Trust Territory statute, and then later as a Kosrae state statute. Kosrae v. Phillip, 13 FSM Intrm. 285, 288 (Kos. S. Ct. Tr. 2005).

Statutes – Construction

In considering a challenge to a statute's constitutionality, the initial premise upon which the court

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must begin is that acts of the Kosrae State Legislature and the state's laws are presumed to be constitutional. The court should avoid selecting an interpretation of a statute which may bring into doubt that statute's constitutionality. Kosrae v. Phillip, 13 FSM Intrm. 285, 288 (Kos. S. Ct. Tr. 2005).

Statutes – Construction

A practice which has been followed by a government for a significant period of time is entitled to great weight in establishing that practice's constitutionality. The party that raises the issue has the burden of proof as to the statute's unconstitutionality. Kosrae v. Phillip, 13 FSM Intrm. 285, 288 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure – Traffic Offenses

When the language of the statute being challenged has been consistently enforced by the prior Trust Territory government and by the Kosrae state government for a cumulative period of at least thirty-five years without challenge and field sobriety tests have also been the predominant, if not sole, standard by which the Kosrae State Police determine whether a person was "under the influence" of alcoholic drink, the court must accord great weight to the constitutionality of Kosrae State Code, Section 13.710 and the use of field sobriety tests. Kosrae v. Phillip, 13 FSM Intrm. 285, 288 (Kos. S. Ct. Tr. 2005).

Constitutional Law – Due Process – Vagueness; Statutes – Construction

The standard for consideration whether a statute is unconstitutionally vague is that a criminal statute must give fair notice of what acts are criminal conduct and subject to punishment; and the statute must be sufficiently explicit to prescribe the offense with reasonable certainty and not be so vague that person of common intelligence must necessarily guess at its meaning. However, it is accepted that some generality may be necessary in describing the prohibited conduct. Kosrae v. Phillip, 13 FSM Intrm. 285, 289 (Kos. S. Ct. Tr. 2005).

Statutes – Construction

When the language of the Kosrae statute and the United States statute are similar, it is appropriate to look to interpretations by United States courts. Kosrae v. Phillip, 13 FSM Intrm. 285, 289 (Kos. S. Ct. Tr. 2005).

Constitutional Law – Due Process – Vagueness; Criminal Law and Procedure – Traffic Offenses

The criminal offense of driving under the influence, as defined in Kosrae State Code, Section 13.710, is not unconstitutionally vague. The term "under the influence" does give people of ordinary intelligence a reasonable opportunity to know and understand what conduct is prohibited and how to avoid violation. Kosrae v. Phillip, 13 FSM Intrm. 285, 291 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure – Traffic Offenses

Field sobriety tests are not subjective and arbitrary although all testing, even the chemical testing of breath, blood or urine that the defendant strongly advocates, is subject to human error. Kosrae v. Phillip, 13 FSM Intrm. 285, 292 (Kos. S. Ct. Tr. 2005).

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

Defendant filed a Motion for Declaratory Judgment and Dismissal on March 7, 2005. On April 1, 2005, the Plaintiff filed an Opposition to the Motion. Defendant filed a Response to Plaintiff's

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Opposition on April 6, 2005. A hearing was held on April 7, 2005. Arthur Buck, Attorney General, and Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender.

Defendant was charged with three criminal offenses in the Information: driving under the influence, in violation of Kosrae State Code, Section 13.710; unauthorized consumption of alcoholic drink, in violation Kosrae State Code, Section 13.517(2); and unauthorized operation of a motor vehicle without possessing a valid license, in violation of Kosrae State Code, Section 13.702. Defendant seeks declaratory judgment and dismissal of count two, driving under the influence, on the grounds that Kosrae State Code, Section 13.710 is unconstitutionally vague, and that the methods to evaluate impairment, the field sobriety tests (FSTs) are unconstitutionally subjective and arbitrary. Similar Motions for Declaratory Judgment and Dismissal have also been filed by the Office of the Public Defender, on behalf of other defendants, in subsequent criminal cases in which Kosrae State Code, Section 13.710, driving under the influence, is a charged offense.

Defendant's Motion is based upon the argument that the term "under the influence," as set forth in Section 13.710 is unconstitutionally vague. Defendant argues that, to people of ordinary intelligence, it is unclear what "under the influence" means, and specifically in this case, how much alcoholic drink must be consumed to be "under the influence" of alcoholic drink? Defendant argues that the term "under the influence" does not give people of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and to avoid violation.

Defendant further argues that the field sobriety tests (FSTs), utilized by the Kosrae State Police to determine whether a person is "under the influence" are subjective and arbitrary, and do not provide standards for enforcement. Defendant argues that the FSTs are highly subjective in that it is the Police Officer administering the FST who determines whether the suspect passed or failed the test. Defendant argues that compared to intoxilyzer, urine and blood tests which are available in the United States, the FSTs are subjective and arbitrary.

The State argues that the term "under the influence" is not unconstitutionally vague. The State argues that the Defendant has been given fair notice of what conduct is prohibited by Kosrae State Code, Section 13.710. The State relies upon statutes in several United States jurisdictions in which the identical language of "under the influence" is utilized in definitions of similar criminal offenses. The State argues that decisions by United States courts have validated the use of FSTs and that the FSTs are not unconstitutionally subjective or arbitrary.

I. FACTUAL BACKGROUND.

A review of the facts of this case, as presented by the parties in the pleadings, record and at argument is instructive. On or about September 25, 2004, at approximately 6 pm in the evening, the Defendant was driving a cargo truck in Malem Municipality. Police Officers Burdy Talley and Kiobu Luey were on routine patrol and saw the Defendant's vehicle speeding and weaving on the road. The police officers followed the Defendant in their police vehicle. While following the Defendant, the police officers turned on their police lights and honked the horn, to signal the cargo truck to stop. Instead, the Defendant refused to stop and continued to speed, reaching speeds of 65 mph, as indicated by the speedometer of the police vehicle. Eventually the Defendant's vehicle finally came to a stop at Pukensukar, Malem Municipality, because it overheated. Upon approaching the Defendant's cargo truck, the Police Officers smelled alcohol on the Defendant. The Police Officers saw both opened and unopened cans of Budweiser beer in the passenger compartment of the truck. From the appearance and smell of the Defendant, and the presence of cans of Budweiser in the truck, the Police Officers concluded that the Defendant had been drinking alcoholic drinks. Officer Luey asked about the

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Defendant's physical condition and if Defendant had any physical problem performing the FSTs. Defendant stated that he did not have any physical problems. Officer Luey applied the FSTs. After explaining and demonstrating the "one legged stand" FST, and receiving verbal acknowledgment of the Defendant's understanding of that FST, the Defendant attempted to perform the one legged stand. Defendant failed the test. Officer Luey then explained and demonstrated the "finger to nose" FST. Defendant verbally acknowledged his understanding of that FST and attempted to perform the finger to nose test. Defendant failed the test. The Police Officers then arrested the Defendant and transported him to the Kosrae Police Station. Defendant was booked and then automatically released on conditions the next day, September 25, 2004, at approximately 2 pm, pursuant to General Court Order 2004-6. The Information was filed on September 27, 2004 and the initial appearance held on September 28, 2004.

II. ANALYSIS.

Defendant was charged with violation of Kosrae State Code, Section 13.710 as follows: "Section 13.710. Driving under the influence. Driving under the influence is driving a vehicle while under the influence of alcoholic drink or a controlled substance or any other intoxicating substance . . ."

Section 13.710 was enacted in the early 1980s, as part of the Kosrae Penal Code, based upon Title 83 of the Trust Territory Code. See Kosrae State Code, Tables (1985). The Trust Territory Code, Title 83, Section 552, establishes the offense of "Persons under the influence of drugs or intoxicating liquor." The Trust Territory Code, Section 552 uses same language as in Kosrae State Code, Section 13.710: "It shall be unlawful for . . . any person who is under the influence of intoxicating liquor or drugs to drive . . . ." (1970 ed.) (The Revisor's Notes: Section 552 is based upon Trust Territory Code, 1966 Edition, Section 815(a)).

Based upon the legislative history of Kosrae State Code, Section 13.710, the term "under the influence" as establishing a standard of conduct subject to criminal liability, has existed and has been enforced since at least 1970, first as a statute of the Trust Territory, and then later as a statute of Kosrae State. In the 35 years of the existence and enforcement of the motor vehicle statutes which utilized the term "under the influence," there has been no reported cases in our Nation which addressed the constitutionality of that term. Thus Defendant's challenge in this case presents an issue of first instance before this Court.

In considering a challenge to the constitutionality of a statute, the initial premise upon which this Court must begin is that acts of the Kosrae State Legislature and the laws of this State are presumed to be constitutional. This Court should avoid selecting an interpretation of a statute which may bring into doubt the constitutionality of that statute. Cornelius v. Kosrae, 8 FSM Intrm 345 (Kos. S. Ct. Tr. 1998). Furthermore, a practice which has been followed by a government for a significant period of time is entitled to great weight in establishing the constitutionality of that practice. Kosrae v. Sigrah, 11 FSM Intrm 249 (Kos. S. Ct. Tr. 2002); Siba v. Sigrah, 4 FSM Intrm 329 (Kos. S. Ct. Tr. 1990). The party that raises the issue has the burden of proof as to the unconstitutionality of the statute. Tafunsak v. Kosrae, 7 FSM Intrm 344 (App. 1995).

Here, the language of the statute being challenged by the Defendant has been consistently enforced by the prior Trust Territory Government and by the Kosrae State Government for a cumulative period of at least thirty-five years without challenge. The FSTs have also been the predominant, if not sole, standard by which the Kosrae State Police determines whether a person was "under the influence" of alcoholic drink. Accordingly, this Court must accord great weight to the constitutionality of Kosrae State Code, Section 13.710 and the use of the FSTs.

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Defendant argues that the language "under the influence" as set forth in Section 13.710 is unconstitutionally vague and must therefore be set aside, and the charge dismissed against him. The standard for consideration whether a statute is unconstitutionally vague was established in Laion v. FSM, 1 FSM Intrm. 503 (App. 1984). In the Laion decision, the Appellate Court held that a criminal statute must give fair notice of what acts are criminal conduct and subject to punishment. The Court further held that a statute must be sufficiently explicit to prescribe the offense with reasonable certainty and not be so vague that person of common intelligence must necessarily guess at its meaning. Id. at 507. However, it is accepted that some generality may be necessary in describing the prohibited conduct. Id. at 508.

There are no reported cases in our Nation which have addressed the language at issue here: "under the influence." Therefore, the rulings of courts in the United States on the constitutionality of same term are relevant to this Court's consideration. Id. at 513. Where the language of the Kosrae statute and the United States statute are similar, it is appropriate to look to interpretations by United States courts. See generally Rodriguez v. Bank v. Bank of the FSM, 11 FSM Intrm. 367, 385 (App. 2003).

Defendant relies upon the case of Clawson v. State, 867 A.2d 187 (Del. 2005) in support of his argument that the term "under the influence" is unconstitutionally vague. In the Clawson case, the defendant was convicted of driving under the influence pursuant to 21 Delaware Code, Sections 4177(a)(1) and (a)(5). The Delaware Code, Title 21, Sections 4177(a)(1) and (a)(5) provide two different prohibitions against driving a vehicle. Section 4177(a)(1) provides that "no person shall drive a vehicle when the person is under the influence of alcohol . . . ." Section 4177(a)(5) provides that "no person shall drive a vehicle when the person's alcohol concentration is, within 4 hours after the time of driving .08 or more . . ." Sections 4177(a)(1) and (a)(5) are joined by the conjunction "or." Application of standard English language grammar to these two subsections of Section 4177 recognizes the creation of two separate and alternative criminal offenses: one offense based upon proof of driving a vehicle while under the influence of alcohol, and another offense based upon proof of a person alcohol concentration in excess of the specified concentration.

Clawson's conviction on violation of Section 4177(a)(5) relied upon an intoxilyzer test result which showed defendant's alcohol concentration to be .159. On appeal, the Clawson's conviction on Section 4177(a)(5) was overturned because the State did not follow the manufacturer's requirements in the operation of the intoxilyzer machine. The Clawson court recognized that a defendant's separate conviction under Section 4177(a)(1) did not require a test result, but held that the defendant's trial on this charge was prejudiced by the non-conforming intoxilyzer test result. The matter was remanded for a new trial.

The Clawson court did not address the constitutionality of Section 4177(a)(5) or the term "under the influence." The Clawson court did not reverse or vacate the defendant's conviction due to unconstitutional vagueness of Section 4177(a)(5) or the term "under the influence." The Clawson court did not address the propriety of the use of FSTs in determining whether a suspect is "under the influence." The Defendant's reliance upon the Clawson decision is misplaced.

Plaintiff, in its opposition, argues that the term "under the influence," as used in Kosrae State Code, Section 13.710, continues to be used in many United States jurisdictions to establish a criminal offense. Plaintiff relies upon code provisions in the United States jurisdictions of Delaware, California and Idaho, all which use the term "under the influence of alcohol" to establish a independent criminal offense. Plaintiff argues that the FSTs are the only tools available in this State to assess whether a suspect is "under the influence." Breath, blood and urine tests are not currently available in the State of Kosrae to determine the alcohol concentration in a suspect.

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Plaintiff relies upon the case of Cargile v. Georgia, 262 S.E.2d 87 (Ga. 1979) in support of its argument that the term "under the influence" is not unconstitutionally vague. The Cargile Court held that "the phrase ‘driving under the influence of alcohol' is universally recognized and understood, and it is not deficient because indefinite or unintelligible." The defendant in Cargile had been convicted of violation of Georgia Code Annotated, Section 68A-902(a)(1), which states that "A person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol." The Cargile Court upheld the language of Section 68A-902(a)(1) to be constitutional.

Plaintiff further relies upon the case of Montana v. Steinmetz, 961 P.2d 95 (Mont. 1988) to support his argument that the FSTs are a constitutional method to assess whether the subject is under the influence of alcohol. Steinmetz sought to suppress evidence of the FST results against him. Steinmetz was originally stopped for a broken taillight, but upon the police officer's observation that the suspect may be impaired, was asked to step out from the car and perform the FSTs. Steinmetz failed the FSTs, was arrested and charged with driving under the influence of alcohol. The Steinmetz Court upheld the application of the FSTs to the defendant, based upon the police officer's observation of the defendant, and his particularized suspicion that the defendant was driving under the influence of alcohol. The Steinmetz Court held that the suspect's failure of the FSTs created the probable cause for arrest of the individual. The Steinmetz Court did not address the constitutional validity of the FSTs.

Defendant, in his response to the Plaintiff's Opposition, argues that the Delaware, Idaho and California statutes all provide for alternate means of assessing whether a person is "under the influence" through use of a breath, blood or urine test. Defendant argues that with these built-in mechanisms, the results of a breath, blood or urine test can be used to support a conviction for driving under the influence. Defendant's observations are correct that these "minimum alcohol concentration" provisions provide alternate means to assess whether a person is under the influence of alcohol. However, in all three statutes, the offense of "driving under the influence of alcohol" is also a separate and independent offense, and not dependent upon the blood alcohol level obtained through breath, blood or urine testing. The offenses which are based upon a specified minimum blood alcohol concentration are referred to as "absolute" or "per se" statutes. These "absolute" or "per se" statutes are not lesser included offenses of "driving under the influence": they are separate charges. See State v. Voracek, 353 N.W.2d 219 (Minn. Ct. App. 1984); State v. Blumer, 546 S.W.2d 790 (Mo. Ct. App 1977); State v. Abbott, 514 P.2d 355 (Or. Ct. App 1973); State v. Coulombe, 470 A.2d 1179 (Vt. 1984).

Several grounds exist for establishing separate offenses: one "per se" offense being dependent upon chemical test results and another offense not being dependent upon chemical test results. First, a "driving under the influence" offense, with no requirement of any minimum blood alcohol level, establishes an offense where chemical testing is not available. This is the situation in the State of Kosrae. Kosrae State does not have breath, blood or urine testing available to test a person's blood alcohol concentration. This type of testing would appear to require potentially costly sampling equipment, testing equipment, trained sampling personnel and trained testing personnel.

Second, a "driving under the influence" offense, with no requirement of any minimum blood alcohol level, establishes conduct as criminal, where a person drives a motor vehicle under the influence of alcohol, but where his or her blood alcohol concentration limit is below the minimum concentration specified in the "per se" provision. The person may be under the influence of alcohol, at the lower blood alcohol concentration, due to the ingestion of other drugs, legal or illegal, or which lowered the person's susceptibility to the ingestion of alcohol. See Miller v. State 341 S.W.2d 440 (Tex Crim. App.1960) (alcohol plus phenobarbital sleeping pills); Harrel v. City of Norfolk, 21 S.E.2d 733 (Va. 1942) (2 highball drinks and 3 Nembutal sleeping pills); City of Waukesha v. Godfrey, 164 N.W.2d 314 (Wis. 1969) (beers and darvon pain relief pills).

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The United States Uniform Vehicle Code, Section 11-902 also establishes the control or operation of a motor vehicle "under the influence of alcohol" as an independent and separate motor vehicle violation. NATIONAL COMMITTEE ON UNIFORM TRAFFIC LAWS AND ORDINANCES, UNIFORM VEHICLE CODE AND MODEL TRAFFIC ORDINANCE (ed. Daniel T Gilbert 1992). See also EDWARD C. FISHER & ROBERT H. REEDER, THE TRAFFIC INSTITUTE, NORTHWESTERN UNIVERSITY, VEHICLE TRAFFIC LAW (1974).

This Court has carefully considered the arguments and cases presented by the parties. In addition to the cases relied upon by the parties, this Court recognizes the numerous decisions by United States Courts which have addressed the term of "under the influence." In a case decided only a few decades after the introduction of the Ford Model T automobile, in 1929 the Minnesota Supreme Court recognized that the "expression of ‘under the influence of intoxicating liquor' is in common, everyday use by the people" and "when used in reference to the driver of a vehicle on public highways, it appears to have a well-understood meaning." State v. Graham, 222 N.W. 909, 911 (Minn. 1929). The long standing understanding of the term "under the influence" was noted by the United States District Court of Appeals for the Third Circuit nearly seventy years later in 1998:

Courts have recognized for over a half a century that driving "under the influence" is commonly understood to mean driving in a state of intoxication that lessens a person's normal ability for clarity and control. This common understanding is consistent with the obvious purpose of drunk driving statutes; i.e. to prevent people from driving unsafely due to an alcohol-induced diminished capacity. Because driving "under the influence" is commonly understood, it therefore puts on fair notice of proscribed conduct.

Virgin Islands v. Steven, 134 F.3d 526, 528 (3d Cir. 1998) (citations omitted) (parallel citations omitted). Many United States courts have held that a person of ordinary intelligence should understand that if he or she has consumed alcohol, that person should not drive. In the case of Greaves v. State, 528 P.2d 805 (Utah 1974), the court held that:

We can see no reason why a person of ordinary intelligence would have any difficulty in understanding that if he has drunk anything containing alcohol, and particularly any substantial amount thereof, he should not attempt to drive or take control of a motor vehicle.

See also Morgan v. Anchorage, 643 P.2d 691 (Alaska Ct. App. 1982); Fuenning v. Superior Court, 680 P.2d 121 (Ariz. 1983); Roberts v. State, 329 So.2d 296 (Fla. 1976); People v. Ziltz, 455 N.E.2d 70 (Ill. 1983); State v. Tanner, 472 N.E.2d 689 (Ohio 1985). Based upon the arguments presented by the parties, the cases, the continuous use and application of term "under the influence" first in the Trust Territory Code, and later in the Kosrae State Code, I conclude that the criminal offense of driving under the influence, as defined in Kosrae State Code, Section 13.710, is not unconstitutionally vague. I find that the term "under the influence" does give people of ordinary intelligence a reasonable opportunity to know and understand what conduct is prohibited and how to avoid violation.

Defendant's argument that the FSTs are subjective and arbitrary must also be rejected. All testing, even the chemical testing of breath, blood or urine that the Defendant strongly advocates, is subject to human error. In the case of Clawson v. State, 867 A.2d 187 (Del. 2005) which Defendant relies upon and as discussed above, the Intoxilyzer breath testing was conducted improperly, due to human error in testing the sample in the Intoxilyzer machine.

The FSTs have been utilized in the United States for many years as a tool to assess potential impairment of a driver of a motor vehicle. The National Highway Traffic Safety Administration (NHTSA), a component agency of the United States Department of Transportation has determined,

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based upon extensive studies, that FSTs properly administered in the field are appropriate tools to assess impairment of drivers of motor vehicles.

The NHTSA defines the term " field sobriety test (FST)" as:

[a]ny number of tests used by law enforcement officers, usually on the roadside, to determine whether a driver is impaired. Most FSTs test balance, coordination and the ability of the driver to divide his or her attention among several tasks as once. Other tests, such as the horizontal gaze nystagmus test, are used to measure a subject's impairment level.

See Glossary of Terms provided at the NHTSA Internet Website (www.nhtsa.dot.gov).

The National Highway Traffic Safety Administration, charged with promoting safe use of United States public highways, has invested substantial funds and efforts in the research and development of FSTs for roadside testing of drivers suspected to be impaired. Beginning in 1975, the NHTSA sponsored research that led to the development of standardized methods for police officers to use when evaluating motorists who are suspected of Driving While Impaired (DWI). In 1981, law enforcement officers from across the United States began using NHTSA's Standardized Field Sobriety Test (SFST) battery to help make arrest decisions. See NHTSA, Traffic Tech. No. 196 (Mar. 1999) and Development of a Standardized Field Sobriety Test (SFST) Training Management System, DOT HS 809 400 (Nov. 2001).

The FSTs are used not only by police officers to evaluate drivers of motor vehicles, but also by the United States Coast Guard officers and the United States military law enforcement personnel. The Coast Guard boarding officer training includes the administration of field sobriety test batteries and identifying indicators of intoxication. See USDOT, US Coast Guard, Agency Update (Nov. 2000). The United States Federal Regulations require military law enforcement personnel to conduct FSTs upon individuals suspected to be driving or in control of the vehicle on a military installation while impaired. See 32 C.F.R. pt. 634 (National Defense, Motor Vehicle Traffic Supervision). This Court is persuaded by the substantial funding and documentation of the testing, research and training on the use of FSTs conducted by the NHTSA, standardization of FSTs, and the required use of FSTs by United States law enforcement, Coast Guard and military personnel to evaluate persons suspected of operating a motor vehicle or marine vessel while impaired.

Defendant has offered no authority to support his argument that the FSTs are subjective and arbitrary. The substantial and continuing research, training and implementation of FSTs in the United States by both civilian and military organizations supports the conclusion that FSTs are valid and constitutional tools to assess potential impairment of drivers. This Court declines to find otherwise. Defendant's claim that the FSTs are unconstitutionally subjective and arbitrary must be rejected. Of course, the State's presentation of FST evidence at trial is subject to cross examination by the Defendant. On cross-examination, the Defendant may examine the FST procedure, the administration of the FSTs to the Defendant, and other aspects of the FSTs.

Based upon the foregoing, the Defendant's Motion for Declaratory Judgment and Dismissal is denied. The Clerk shall set this matter for trial on the Court's regular calendar.