State v. Jacobson

• Decision Date: 03 October 1983
• Docket Number: Cr. N
• Citation: 338 N.W.2d 648
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Harlan JACOBSON, Defendant and Appellant. o. 924.
• Court: North Dakota Supreme Court

Page 648

338 N.W.2d 648

STATE of North Dakota, Plaintiff and Appellee, v. Harlan JACOBSON, Defendant and Appellant.

Cr. No. 924.

Supreme Court of North Dakota.

Oct. 3, 1983.

Lewis C. Jorgenson, State's Atty., Devils Lake, for plaintiff and appellee.

Garcia & Garcia, Devils Lake, for defendant and appellant; argued by David Garcia, Devils Lake.

SAND, Justice.

The defendant, Harlan Jacobson, appealed from a judgment of conviction for driving a motor vehicle while under the influence of intoxicating liquor (DUI).

On 20 November 1982 North Dakota Highway Patrolman William Byram, after having observed Jacobson drive his vehicle over several concrete parking lot barriers, stopped Jacobson's vehicle on a Devils Lake street. Byrum detected an odor of alcohol on Jacobson's breath and asked him for his driver's license, which Jacobson had difficulty finding. Jacobson denied driving over the barriers until he was shown his tire tracks in the snow. Byram arrested Jacobson and took him to the Devils Lake law enforcement center where Jacobson's responses to sobriety tests were videotaped and a Breathalyzer test was administered. The Breathalyzer results showed that Jacobson's blood alcohol content was 0.17 of one percent.

Jacobson testified that he had a heart condition for which he had taken medication on the day of his arrest. He stated that he had not consumed any alcoholic beverage since his condition was discovered in May of 1982, but that he drank two 24-ounce cans of beer an hour or two before his arrest. Jacobson further stated that he recalled being fingerprinted but that he did not recall driving the vehicle, talking with Patrolman Byram, or taking the sobriety and Breathalyzer tests. Jacobson's 17-year-old step-daughter, who was with him at the time of the arrest, testified that Jacobson was drinking a mixed drink while driving the vehicle.

The only issue raised on appeal is whether or not the trial court erred in refusing Jacobson's requested jury instruction that actual physical control (APC) of a motor vehicle under the influence is a lesser included offense of the crime of driving while under the influence of intoxicating liquor (DUI).

Both offenses are contained in North Dakota Century Code Sec. 39-08-01, which provides in part:

"1. No person shall drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if:

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b. He is under the influence of intoxicating liquor;"

The penalty for DUI or APC is the same except for the points assessed against the driver's license. A DUI violation prescribes a 15-point assessment, whereas an APC violation prescribes a 6-point assessment against the driver's license. This presents the question whether or not a civil or administrative penalty may properly be taken into consideration in determining if the offense constitutes a lesser included offense when the criminal penalty is the same for both offenses. However, because of the disposition of this case we need not resolve this issue.

DUI and APC are two separate offenses. The use of the word "or" between DUI and APC in the statute indicates that the Legislature intended to establish two distinct offenses. However, this in itself is not controlling.

NDCC Sec. 12.1-01-04, General definitions, provides:

"As used in this title, unless a different meaning is plainly required:

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15. 'Included offense' means an offense:

a. Which is established by proof of the same or less than all the facts required to establish commission of the offense charged;

b. Which consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or

c. Which differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.

Volume 21, Am.Jur.2d, Criminal Law, Sec. 269, p. 472, defined a lesser included offense as follows:

"An offense is a lesser included one of another only if, in order to commit the greater offense, it is necessary to commit the lesser. ⁸⁷ "

The Ninth Circuit Court of Appeals, with reference to a lesser included offense, in Giles v. United States, 144 F.2d 860, 861 (1st Cir.1944) said:

"To be necessarily included in the greater offense the lesser must be such that it is impossible to commit the greater without first having committed the lesser."

For an offense to be classified a lesser included offense it must not only be an included offense but must also be a lesser offense. Driving a motor vehicle without being in actual physical control is difficult if not virtually impossible; thus, it meets...