Crutchfield v. State, 4474
| Decision Date | 07 November 1980 |
| Docket Number | No. 4474,4474 |
| Parties | Herschel E. CRUTCHFIELD, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
George Blair McCune, Cowper & Madson, Fairbanks, for appellant.
Randy M. Olsen, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and COMPTON, Superior Court Judge.
Herschel Crutchfield appeals his conviction under AS 28.35.030(a) 1 which prohibits the operation of a motor vehicle while under the influence of alcohol and/or depressant, hallucinogenic, stimulant or narcotic drugs as defined in AS 17.10.230(13) and AS 17.12.150(3). 2
On January 26, 1978, Crutchfield was arrested in Fairbanks after a Fairbanks police officer observed Crutchfield's vehicle travelling north in the southbound lane of the Old Steese Highway. At trial, the state presented evidence that Crutchfield was under the influence of alcohol and the drug tranxene. 3 Tranxene has not been specifically designated, by regulation, as a drug, the use of which while driving carries criminal sanctions. Its prohibited character was established under 7 AAC 32.010(b). That regulation states (a)ny combination of depressant, stimulant, or hallucinogenic drugs, not listed by name or trade name in this chapter, that is of a composition substantially similar to any of the drugs or substances listed in this chapter is also subject to AS 17.12 unless it contains another substance or is otherwise compounded in a manner that prevents the prohibited substance from being ingested or absorbed in amounts or concentration that would be habit forming, dangerous, or have a potential for abuse.
The state presented expert testimony to establish that tranxene is of substantially similar composition to valium, a listed drug. 4
Q. How is tranxene classified as a drug?
A. Well, it's a relatively new drug. It's in a field of benzodiazepine. It's one of the group of drugs called benzodiazepine.
Q. Are you familiar with the drug valium?
A. Yes I am.
Q. How is valium classified?
A. It's also a benzodiazepine.
Q. Is the composition of tranxene substantially similar to valium?
A. Yes it is. They are the same, they are different, I mean, let me change that a little bit. They are both in the same family of drugs, and have very similar actions. They differ slightly in their chemical structure and as such, tranxene has slightly different pharmacological effects, but as in, but they are both similar.
Q. If I can understand it, if tranxene wasn't different from valium, we wouldn't need to invent tranxene. But is it substantially the same composition?
A. Yes it is.
The central issue raised by this appeal is whether 7 AAC 32.010(b), which provides for criminal sanctions on the use of unlisted drugs based upon their similarity of composition to listed drugs, is unconstitutionally vague. 5 Crutchfield contends that by failing to provide notice of what conduct is prohibited, the regulation violates his constitutional right to due process.
We must first determine, however, whether we should consider this issue on appeal since, as the state points out, the alleged constitutional error was not raised at trial. 6 It is well settled that Alaska Criminal Rule 47(b) 7 allows this court to "consider questions raised for the first time on appeal if necessary to effect substantial justice or prevent the denial of fundamental rights." Hammonds v. State, 442 P.2d 39, 43 (Alaska 1968). But, an alleged error is reviewable as plain error only if it raises a substantial and important question and is obviously prejudicial. Randall v. State, 583 P.2d 196, 200 (Alaska 1978). Furthermore, in Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979), we emphasized that the requirement of obvious prejudice, i. e., that the alleged defect be readily apparent, applies not just to non-constitutional issues but to those of constitutional dimension as well.
On two occasions prior to Gilbert, this court has examined an appellant's claim that the statute under which he was indicted was unconstitutional in spite of the failure of the appellant to object to the indictment. Harris v. State, 457 P.2d 638 (Alaska 1969); Tarnef v. State, 512 P.2d 923 (Alaska 1973). We stated: "(I)f the statute under which appellant was indicted is unconstitutional, it follows that the indictment and judgment of conviction would be vitiated and we should reverse under the plain error rule." Harris v. State, 457 P.2d at 640 (footnote omitted), quoted in Tarnef v. State, 512 P.2d at 928.
Although neither Harris nor Tarnef made reference to the requirements outlined in Randall a statute which is subject to constitutional attack on its face implicitly meets those requirements.
Crutchfield's attack, in this case, is upon the constitutionality of an administrative regulation, not a statute. The United States Supreme Court has determined, however, that the same strict rules of construction which apply to statutes defining criminal action must also be applied to such regulations. M. Kraus & Bros., Inc. v. United States, 327 U.S. 614, 621, 66 S.Ct. 705, 707, 90 L.Ed. 894, 898 (1946). Since the regulations issued by the commissioner defined the scope of behavior prohibited by AS 28.35.030, they are subject to the same review as the statute itself. The purpose of the plain error doctrine is " 'to mitigate ... the harsh effects of a rigid application of the adversary method of trial, whereby the attorney's conduct binds his client.' " Bargas v. State, 489 P.2d 130, 133 (Alaska 1971), quoting 8B Moore's Federal Practice P 52.02(2), at 52-54 (2d ed. 1970). The achievement of this purpose requires that regulations, such as 7 AAC 32.010(b), which define criminal conduct be reviewed on the same basis as statutes which sanction criminal conduct.
If the regulation is unconstitutional, Crutchfield's conviction, to the extent that it is based on the regulation, constitutes plain error under Alaska Criminal Rule 47(b). We shall therefore consider the issue, although it was not brought to the attention of the trial court.
"(T)he core content of procedural due process placed upon government the duty to give notice ... to individuals ... whose interests in life, liberty or property are adversely affected by government action." Tribe, American Constitutional Law § 10-8, at 512 (footnotes omitted) (1978). Crutchfield argues that 7 AAC 32.010(b) is void for vagueness, in violation of due process, as it fails to provide notice of what constitutes prohibited conduct. The United States Supreme Court has defined a criminal statute which violates the constitutional requirement of definiteness as one which "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954). As discussed above, that Court has also determined that this same rule of construction must be applied to regulations which relate to criminal conduct. M. Kraus & Bros., Inc. v. United States, 327 U.S. at 621, 66 S.Ct. 707, 90 L.Ed. at 898.
Crutchfield's argument speaks to one of the three considerations 8 which we have set forth as relevant to a determination of whether a statute is void for vagueness. 9 As noted in State v. Erickson,
(t)he notice requirement embodies notions of fundamental fairness. Long ago, the United States Supreme Court said that:
a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926).
The statute under which Crutchfield was convicted proscribes the operation of a motor vehicle while under the influence of depressant, hallucinogenic or stimulant drugs as defined in AS 17.12.150(3). The latter statute requires that a drug, to be prohibited, must be investigated and designated by regulation as having a potential for abuse. The statutory provision which authorizes the commissioner to promulgate regulations, AS 17.12.040(b), 10 refers to drugs which are "habit forming" or "dangerous" or have a "depressant or stimulant ... or hallucinogenic effect." In contrast to the language of these statutes, 7 AAC 32.010(b) proscribes drugs which are "of composition substantially similar" to that of listed drugs.
In a case involving the possession of a drug in violation of AS 17.10.010, 11 this court expressed doubts as to the constitutionality of a statute which included in its definition of narcotic drugs, "and every other substance having similar physiological effects." 12 Casey v. State, 509 P.2d 285, 286 n.2 (Alaska 1973). We referred to these doubts in a subsequent case involving the regulation now at issue. State v. Erickson, 574 P.2d 1, 20 (Alaska 1978). We noted in Erickson that the phrase "of composition substantially similar" is even broader than that noted in Casey. State v. Erickson, 574 P.2d at 20. Although we did not reach the constitutional issue in Erickson or Casey, we held that an indictment for possession or sale of the drug in question, cocaine, would be impermissible under AS 17.12 unless designated by name under the regulations authorized by that statute. State v. Erickson, 574 P.2d at 20. We stated, Id. at 21.
The drug tranxene was given to Crutchfield by his physician. He had no notice that it was a drug whose use while driving was prohibited under AS 28.35.030. 13 Moreover, he had no way of...
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