State v. Schwalk, Cr. N

• Decision Date: 18 October 1988
• Docket Number: Cr. N
• Citation: 430 N.W.2d 317
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gregory Allen SCHWALK, Defendant and Appellant. o. 870275.
• Court: North Dakota Supreme Court

Page 317

430 N.W.2d 317

STATE of North Dakota, Plaintiff and Appellee, v. Gregory Allen SCHWALK, Defendant and Appellant.

Cr. No. 870275.

Supreme Court of North Dakota.

Oct. 18, 1988.

Melody R.J. Jensen, Asst. States Atty., Fargo, and Steven Dawson, Sr. Law Student, for plaintiff and appellee. Argued by Steven Dawson, under the supervision of Melody R.J. Jensen.

Weiss, Wright & Paulson, Jamestown, for defendant and appellant; argued by Thomas Merrick. Appearance by James A. Wright.

LEVINE, Justice.

Gregory Allen Schwalk appeals from a judgment of conviction finding him guilty of being in actual physical control of a vehicle while having a blood alcohol concentration of at least .10 percent, in violation of Section 39-08-01(1)(a), N.D.C.C. We reverse and remand for a new trial.

On March 28, 1987, at approximately 2:30 a.m., a Fargo police officer found Schwalk slumped over the steering wheel of his pickup, which was parked on the side of the road with the engine running and the headlights on. After unsuccessfully attempting to wake Schwalk by tapping on the window, the officer opened the door and shook Schwalk until he awoke. The officer conducted field sobriety tests and arrested Schwalk. Schwalk was transported to a local hospital where a nurse drew a blood sample. The arresting officer mailed the sample to the State Toxicologist for testing.

Schwalk was convicted of being in actual physical control of a vehicle while having a blood alcohol content of at least .10 percent. The court rejected his contentions that the actual physical control statute does not apply to a sleeping or unconscious person and that the statute is void for vagueness. The trial court admitted the results of the blood test over Schwalk's objection that the State had failed to lay an adequate foundation for its admission.

Schwalk raises the following issues on appeal:

I. May a person who is asleep or unconscious be convicted of being in "actual physical control" of a vehicle?

II. Is the actual physical control statute, Section 39-08-01(1), N.D.C.C., unconstitutionally vague?

III. Did the trial court err in admitting the blood test results?

I.

Section 39-08-01(1)(a) & (b), N.D.C.C., provides:

"39-08-01. Persons under the influence of intoxicating liquor or any other drugs or substances not to operate vehicle--Penalty.

"1. A person may not 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 any of the following apply:

"a. That person has a blood alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving.

"b. That person is under the influence of intoxicating liquor."

Schwalk asserts that the statute does not apply to a person who is behind the wheel of a vehicle but is asleep or unconscious.

We recently rejected a similar argument in Buck v. North Dakota State Highway Commissioner, 425 N.W.2d 370 (N.D.1988). Our opinion in Buck clearly points out that one may be in "actual physical control" of a vehicle under the statute even though he is asleep or unconscious when found by the officer:

" 'The purpose of the "actual physical control" offense is a preventive measure.' State v. Schuler, 243 N.W.2d 367, 370 (N.D.1976). '[A]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public.' Id., 243 N.W.2d at 370, quoting Hughes v. State, 535 P.2d 1023, 1024 (Okl.Crim.App.1975). An intoxicated person in a motor vehicle poses a threat to public safety because he 'might set out on an inebriated journey at any moment.' Martin v. Commissioner of Public Safety, 358 N.W.2d 734, 737 (Minn.App.1984).

"That Buck may neither have driven his vehicle while intoxicated, nor have intended to drive while still intoxicated, does not vitiate Officer Scherbenske's reasonable grounds to believe that Buck was in actual physical control of a vehicle in violation of Sec. 39-08-01, N.D.C.C. '[T]he real purpose of the statute is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.' State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). An intoxicated individual who gets into his vehicle to sleep poses a threat of immediate operation of the vehicle at any time while still intoxicated." Buck v. North Dakota State Highway Commissioner, supra, 425 N.W.2d at 372-373.

We conclude that the actual physical control statute may be applied to Schwalk under the circumstances presented here. In accordance with Buck, it was appropriate for the trial court to find that Schwalk was in actual physical control of his vehicle while having a blood alcohol concentration in excess of the legal limit.

II.

Schwalk asserts that the actual physical control statute is unconstitutionally vague because an ordinary person would not understand what conduct is proscribed.

The due process clauses of the federal and state constitutions require definiteness of criminal statutes so that the language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for judges and juries to fairly administer the law. State v. Johnson, 417 N.W.2d 365, 368 (N.D.1987). In order to survive a vagueness challenge, a statute must meet two requirements: (1) it must provide adequate warning as to the conduct proscribed, and (2) it must establish minimum guidelines to govern law enforcement. Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); State v. Johnson, supra, 417 N.W.2d at 368.

Schwalk has not cited any case which has held that the phrase "actual physical control" fails to apprise an ordinary person of the conduct proscribed by the statute. Our research, however, reveals a line of cases from other jurisdictions consistently rejecting vagueness challenges to actual physical control statutes. See, e.g., City of Kansas City v. Troutner, 544 S.W.2d 295, 299-300 (Mo.Ct.App.1976); State v. Ruona, 133 Mont. 243, 321 P.2d 615, 618-619 (1958); Parker v. State, 424 P.2d 997, 999-1000 (Okla.Crim.App.1967); State v. Trucott, 145 Vt. 274, 487 A.2d 149, 152-153 (1984); Adams v. State, 697 P.2d 622, 624 (Wyo.1985).

We agree with the reasoning in these cases that the phrase "actual physical control" provides adequate notice of the conduct proscribed and provides the requisite guidance to law enforcement. In particular, we note that prior judicial interpretations of our actual physical control statute, Section 39-08-01(1), N.D.C.C., provided sufficient notice that the type of conduct engaged in here was proscribed by the statute. In this respect we note that judicial interpretations clarifying vague or ambiguous language may be taken into consideration in determining whether the public has been put on notice of the conduct proscribed. See, e.g., Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975); Parker v. Levy, 417 U.S. 733, 752-756, 94 S.Ct. 2547, 2560-2561, 41 L.Ed.2d 439 (1974). As noted in Rose v. Locke, supra:

"It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual 'criminally responsible for conduct which he could not reasonably understand to be proscribed.' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); see Wainwright v. Stone, 414 U.S. 21, 22, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for '[i]n most English words and phrases there lurk uncertainties.' Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); United States v. National Dairy [Products] Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden."

We believe that Section 39-08-01(1), N.D.C.C., when viewed in light of prior judicial interpretations, provided adequate warning that Schwalk's conduct was proscribed. As noted in Buck v. North Dakota State Highway Commissioner, supra, we have long construed Section 39-08-01(1), N.D.C.C., to broadly prohibit any exercise of dominion or control over a vehicle by an intoxicated person. For example, in State v. Schuler, 243 N.W.2d 367 (N.D.1976), we upheld a conviction of a defendant who was seated behind the wheel of her vehicle, which was partially in the ditch and "high-centered," apparently unable to move. We cited with approval Hughes v. State, 535 P.2d 1023 (Okla.Crim.App.1975), specifically noting that Hughes upheld a conviction for actual physical control where the defendant was found slumped and unconscious in the driver's seat. State v. Schuler, supra, 243 N.W.2d at 370. We quoted with approval the following language from Hughes:

" 'It is our opinion that the legislature, in making it a crime to be in "actual physical control of a motor vehicle while under the influence of intoxicating liquor," intended to enable the drunken driver to be apprehended before he strikes.

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" 'We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist.' " State v....