Morgan v. Municipality of Anchorage
| Decision Date | 22 April 1982 |
| Docket Number | No. 6061,6061 |
| Citation | 643 P.2d 691 |
| Parties | Karl C. MORGAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. |
| Court | Alaska Court of Appeals |
Donald D. Hopwood, Kay, Christie, Fuld, Saville & Coffey, Anchorage, for appellant.
David G. Berry, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee.
Before BRYNER, C. J., and COATS and SINGLETON, JJ.
Karl C. Morgan appeals to this court from his conviction and sentence for driving while intoxicated, in violation of AMC 9.28.020(A). Morgan first contends that the ordinance and the instructions of the court violated his right to due process of law because neither the ordinance nor the instructions specified the intent which was a necessary element of the offense. Morgan filed a pretrial motion to dismiss the charges against him on the ground that the ordinance violated his due process rights by not requiring criminal intent. This motion was denied by the court. At trial the judge instructed the jury on intent as follows:
In the crime charged in this complaint, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law. Where a person intentionally does that which the law declares to be a crime, he is acting with criminal intent, even though he may not know that his act or conduct is unlawful.
We hold that the trial court did not err in refusing to dismiss the charges against Morgan, at least as to the offense of driving while under the influence of intoxicating liquor, which is the section of the ordinance under which Morgan was convicted. AMC 9.28.020(B)(1). The trial court's instruction on criminal intent requires intentional conduct. This implies, at a minimum, that Morgan could only be convicted under this instruction if he intentionally consumed alcohol and intentionally drove his car. We believe that the court's instruction construed the ordinance to provide for sufficient criminal intent to avoid any unconstitutional application to Morgan. See State v. Rice, 626 P.2d 104, 108 (Alaska 1981).
Morgan also argues that the ordinance should be construed to require a defendant to know that he is under the influence of intoxicating liquor before he can be found to have violated the ordinance. We do not believe that a person who intentionally drinks and intentionally drives must be aware that he is under the influence of alcohol in order to be convicted under AMC 9.28.020(B)(1). It certainly does not make sense to allow a defendant to claim that his intentional consumption of alcohol impaired his ability to know that he was intoxicated. It does make sense to require a person who drinks and drives to be responsible for not drinking to the point where he is under the influence of alcohol. He should drive at his peril rather than only at the public's peril. We find no due process violation.
We also find the trial court did not err in giving the instruction on criminal intent. Morgan did not object to this instruction. We do not find plain error.
Morgan next argues that the breathalyzer results were improperly admitted into evidence because the breathalyzer calibration documents did not comply with Alaska Evidence Rule 902. The municipality concedes that the breathalyzer calibration documents did not comply with the evidence rule, but has indicated that it can bring the documents into compliance. We have decided that an appropriate remedy is to remand the case to allow the municipality to establish the authenticity of the breathalyzer documents. We have concluded that Morgan was not...
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