KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Kosrae State v. Nithan. (Kosrae 1993)

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KOSRAE STATE
 Plaintiff,
 
VS.

LICIES NITHAN
 Defendant.

CRIMINAL CASE NO. 39-92

OPINION

      Held before me on September 9, 1992 at the Kosrae State Court where at the end of government's case, defendant moves for Judgment of Acquittal on all three counts. Motion was denied and was ordered set for trial on December 4, 1992. Defendant was given opportunity to testify, however, he waived his right to do so. Counsels were directed to submit their summation into writing with memorandum of points and authorities in support of their arguments.

FACTS
 
     [1 ] The accused and his companion Rolner Joe were charged separately. Defendant Licies Nithan, during the night in question (December 29, 1991) at approximately 12:00 midnight at LiK, both were

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 having a joyride passing victim's place.

     [2] The vehicle, presumably had a broken muffler and produced loud noise during the night. While passing victim's home, victim Aren Palik came outside to make further inquires. The vehicle was coming back from the same direction and stopped in between victim's house and Mr. Isisaki's house. The location from victim's house to the road is approximately one hundred feet (more or less).

     [3] There, were people still awake at Mr. Isisaki's place. One, Meltina Kibby talked to defendant during the night on different subject matter. Meltina saw defendant drive off with "burning rubber". She heard profane language but forgot exactly what words were uttered during the night.

     [4] Victim Aren Palik heard the burning tire and profane language directed to him. After defendant Licies Nithan and Rolner left, he called Chief of Police Heinrich Palik, his brother. After Aren Palik called, he left in his car to seek police. Chief of Police, on his way to Lik, met defendant Rolner Joe and others at Lepa trying to get the truck back on the road as it had almost fallen off the road. Chief of Police approached defendants and later Officer Ittu arrived at the scene and took over the arrest by making attempts to place defendant inside the truck.

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[5] Officer Ittu and Chief Heinrich both observed defendant staggering and his speech was slurry and Officer Ittu smelled liquor on defendant. Defendant Licies refused to get inside the truck and Officer Ittu used more force in order to place defendant inside the truck. Both defendants were arrested and later charged. Defendant was charged with: (1) Disturbing the Peace; (2) Driving Under Influence of Intoxication; and (3) Obstructing Justice.

OPINION

     Defendant Licies faces three criminal charges. I will discuss them in their order of counts in the complaint.

     Count one (I) charged the defendant of violation of Kosrae State, Section 13.503, Disturbing the Peace. Specifically the statute reads,

"Disturbing Peace is willfully committing anti act which unreasonably annoys or disturbs another so that he is deprived of peace and quiet or provokes a breach of the peace. Disturbing the Peace is a category two misdemeanor. KC 13.503.

     The charge of Disturbing the Peace is very broad. The issue is whether or not driving a vehicle with a broken muffler which produced loud noise and burning tires can constitute the offense of disturbing the peace. Since this is a case of first impression, careful research is required to determine whether the facts in this case constitute such an offense. The elements that need to be proved beyond a reasonable doubt

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under the statutory provisions are: willfully committing any act which
unreasonably annoys or disturb another person  so that the person is
deprived of peace and quiet. If the acts of "driving a vehicle with loud noise", "burning tires", and "shouting and using profane language" were directed to the victim willfully and intentionally by defendant the evidence will be clearly convincing that defendant was disturbing the peace.

     The location and the distance of victim's house thus raise another issue for me to consider. Government claims that victim's resident is a peaceful and quite place. Because of defendant's act of driving his vehicle with loud noise and burning tires, it disturbs victim.

     If the defendant's acts were willful and intended to create a disturbance to the peace and quite of the victim and his family, surely the evidence would be overwhelmingly in supporting the charge. However, it is appropriate for this Court to considered the geographical location of the victim's house to the main road. In Kosrae, it is undisputed that many of the houses are constructed so close to the road where each family can hear the sound of a passing vehicle in such manner.

     The government has the burden to prove beyond a reasonable doubt the elements of the offense of disturbing the peace. Hypothetically, all drivers could be charged with the crime of disturbing peace while driving on the road with loud sound and burning rubber when passing the

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houses constructed so close to the road. This Court agrees with defendant that there is no law prohibiting a vehicle to be operated on the road with loud sound, provided that such acts were not intentionally and willfully done in such manner as to cause the victim to be disturbed.

     In considering the location of the victim's house to the road, I find it very difficult to determine when and under what circumstances a person can be disturbed by passing of vehicles. It is not disputed that defendant's truck probably had a broken muffler while driving during the night in question.

     As to the use of "profane language", victim Aren during cross examination, clearly testified that it was Rolner Joe that directed those words to him. Meltina Kibby another government's witness heard profane language during the night, however, she forgot exactly as to what words were used.

     Another crime defendant faces is violation of KC 13.710 driving under the influence of intoxication liquor. KC 13.710 provides the following language:

"Driving under the influence is driving a vehicle while under the influence of alcoholic drink or controlled substance or any other intoxicating substance."

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     The statute does not define what is meant by the term "under the influence of intoxicating liquor." I feel it is for this Court to give an instruction defining this term, to provide some conception and understanding of what is generally considered by law as being "under the influence of intoxicating liquor." Without a definition, one may construe it to mean that a party must be "drunk", another may construe that it to mean that if it is proven that he has taken one or two drinks he is "under the influence of intoxicating liquor."

     In looking at the provision of General Applicability of the Code, KC Section 1.101 (1)(g) and (h) provides the followings:

     1(g)           The meaning of a word of phrase is according to
               it's common usage.

     1(h)           The interpretation of a word with technical or
special meaning is in accordance with that meaning. KC 1.101 (1)(g)(h).

     For this reason I believe it is best that this Court define the term so that it is clear what the intent of the committee and the law of the state considered as one being "under the influence of intoxicating liquor."

     Whether a person was intoxicated at a given time is a factual matter for the court to consider. Bakalars v Continental Casualty Co.,

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141 Wis 43, 122 NW 721. And Madisonville v Stewart, (ky) 121 SW 421.

     It is a well known fact that intoxicating liquor has a different effect upon the system of different parties. It is true that some people may drink a quantity of liquor and still be in their normal senses, others with little quantity and will be completely out. Some people are not as effected by alcohol, while others are effected by the same amount of liquor. Others may become completely drunk by the same amount. These are fundamental questions to be determined by the Court in evaluating the evidence in order to arrive at the proper verdict.

     There is a distinction between drunkenness and being under the influence of intoxicating liquor, and it is not necessary to prove drunkenness to secure a conviction under the statute prohibiting the operation of a motor vehicle while under the influence of intoxicating liquor. Nor is it necessary to provide any specific degree of intoxicating. Shorter v State. 234 Ind 1, 122 NE 2d 847,52 ALR 2d 1329. There is authority, however, that while all persons intoxicated are "under the influence of intoxicating liquor" the reverse is not true. Cannon v State. 91 Fla 214, 107 So 360.

     It has been held in some jurisdictions that in order to sustain a conviction under such a statute, one must be found to have been intoxicated to such an extent as to impair his judgment or ability to operate a motor vehicle. People v Weaver, 188 App Div 395, 177 NYS

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71. Loss of normal control of body and mind has also been held to be a proper test to determine whether or not one was in an intoxicated condition within the meaning of such statutes. State v Reifsteck, 317 Mo 268, 295 SW 741.

     Further, it is the effect of the alcoholic beverages upon the accused as it appears in the evidence, not the number of drinks (Weston v State. 49 Ariz 183, 65 P2d 652) or the percentage of alcohol in the drink consumed (Drew v State, 71 Okla Crim 415, 112 P 2d ,429), which finally determines whether his condition would sustain a conviction for driving while intoxicated or under the influence of intoxicating liquor. It is not necessary to find that the accused was in a high state of excitement, enthusiasm, or elation, frenzy or delirium, in order to find that he was "intoxicated", as it is common knowledge that some persons, to the contrary, react to the influence of liquor by becoming dull, sleepy, and sodden. People v Mullins, 66 Cal App 475, 226 P 622.

     Several jurisdiction have held that even the slightest degree of intoxication is sufficient to support a conviction and that intoxication need not be of such a degree that it interferes with the proper operation of a motor vehicle. See State v. DuguidL72 P2d 435 and Harell v Norfolk. 42 ALR 550.

     Other Courts have held however, that to be under the influence of intoxicating liquor within the meaning of such statute an accused must

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have been rendered in capable of operating a motor vehicle in a manner in which an ordinary prudent and cautious person in full possession of his faculties, using reasonable care would operate a similar machine under like conditions.

     The gist of the crime as enumerated in Kosrae Code as amended by S.L 3-74 is "driving a vehicle while under the influence of alcoholic drink" or a controlled substance or any other intoxication substance.

     This statute appears evidently that it was not the intent of the committee to fasten guilt in the case of any and every "influence", due to the use of intoxicating liquor. It was enacted to protect the public from those who, while under the influence of intoxicating liquor, attempt to operate an automobile upon the highway of this State, especially at a time when there is a world of increasing traffic difficulties in Kosrae.

     The law should be liberally construed so as to effect its purpose, and bring safety to those who drive on the public highway in an orderly and lawful manner. The court takes cognizance of the fact that there are increasing cases in the State of Kosrae that arise under this statute, which include the danger from drunken driving. Especially during this stage where the road is being improved and paved and the fact that narrowness of the width and its length is foreseeable and risky for drunken driver.

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     One may be "under influence" but to a degree in which renders him incapable of driving. One may be "under influence" but to a degree which he is still capable of safely driving. Clearly the intent and the laws is to protect the public and the driver to drive safely. I think it will be well within the bounds of accuracy in defining the phrase by saying that "if intoxicating liquor has effected the nervous system, brain or muscles of the driver of an automobile so as to impair to an appropriate degree, his ability to operate his car in a manner that an ordinary, prudent and cautious man in full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions", then such driver is "under the influence of intoxicating liquor" within the meaning of KC 13.710.

     In the case at bar, I find the evidence is not sufficient upon which to establish that the accused, as a result of his drinking was under "influence of intoxicating liquor" to a degree discussed above. The only evidence that government relied on was the testimonial evidence of Chief of Police and Officer Ittu. Both testified that defendant smells liquor, staggering, speech was slurry.

     By this testimonial evidence, it is not too convincing as to the degree of intoxication or the quantity of liquor defendant took.

     As to count three, defendant was charged with Obstructing

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Justice. There were conflicting testimonies. It was unclear as to whether defendant had been charged with any crime prior to arrival of Officer Ittu.

     The evidence shows that Officer Ittu arrived late and did not know whether defendant was under arrest when he took over the arrest from Chief of Police and forced defendant to get inside the pick-up. In his testimonies, he had to force defendant since defendant refused to comply with the orders.

KC 13.611

     The language provided in KC 13.611 provides the followings:
Obstructing Justice is interfering with a .police officer in the lawful pursuit of his duty.
     The act of "interference" was unclear. Officer Ittu during cross examination claimed that he took over the arrest from Chief and used "necessary force" to place defendant in the truck. Whether defendant was placed under arrest by Chief of Police after he was charged was not persuasive. The law prohibits any person from resisting and interfering with any police officer's while doing his lawful job. Mr. Ittu proceeded with his arrest without knowing exactly what charges were made against defendant by Chief of Police. The burden is on the government to establish and to prove the elements of the offense of Obstructing Justice.

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     Accordingly, it is ORDERED that the accused is acquitted on counts I, 11, and III. This matter is dismissed.



     So ORDERED the 22nd day of January, 1993.

                              _______________________
                              Harry H. Skilling
                              Associate Justice

     Entered this 22nd day of January, 1993.


                              ______________________
                              Chief Clerk of Court, Kosrae



                                                                                                                                                                                                                                                                                                           
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