State v. Trucott

• Decision Date: 14 December 1984
• Docket Number: No. 83-095,83-095
• Citation: 487 A.2d 149,145 Vt. 274
• Parties: STATE of Vermont v. Alfred TRUCOTT.
• Court: Vermont Supreme Court

Page 149

487 A.2d 149

145 Vt. 274

STATE of Vermont v. Alfred TRUCOTT.

No. 83-095.

Supreme Court of Vermont.

Dec. 14, 1984.

Philip H. White, Orleans County State's Atty., Newport, and Robert M. Butterfield, Deputy State's Atty., St. Johnsbury, for plaintiff-appellee.

Jean A. Swantko, Public Defender, St. Johnsbury, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

PECK, Justice.

This is an appeal by defendant from his conviction, after trial by jury, of being in actual physical control of a motor vehicle upon a public highway while under the influence of intoxicating liquor in violation of 23 V.S.A. § 1201(a)(2). We affirm.

Defendant presents four issues for review, breaking down each issue into subissues. We identify and discuss the several issues and their components below seriatim.

The factual background of the charge is relatively simple. At approximately ten o'clock in the evening of August 10, 1982, a state police officer responded to a call reporting a vehicle stopped at the side of the road with its lights on, "revving its motor." At the scene, the officer discovered a Chevrolet pickup truck parked in a "pull-off" area on Route 5 about a mile and a half south of Orleans Village in the town of Barton. The vehicle's engine was not running, and the lights had been turned off.

The officer parked his cruiser in the pull-off area facing the truck and approached the driver's side on foot. He found defendant, the sole occupant, seated and asleep behind the steering wheel. The window on the driver's side had been rolled down, the vehicle's keys were in place in the ignition; the odor of an alcoholic beverage was noticeable from the interior of the truck cab, and on defendant's breath. A bottle of beer, half full, lay on the seat beside him.

Upon being awakened by the officer, defendant appeared dazed. He first removed the keys from the ignition, and then reinserted them. He had difficulty in locating his driver's license. Subsequently, when he walked to the cruiser at the officer's request, defendant swayed and appeared unable to walk a straight course. At the cruiser, the officer administered the alco-sensor test to defendant; based on the results of the test and his observations, the officer took defendant into custody and drove him to the police barracks for further testing and processing under the alcohol-related motor vehicle laws.

There were other common clinical symptoms of alcohol impairment displayed by defendant, either at the site where the officer first discovered him, later at the police barracks, or both. He was unable to perform satisfactorily a heel-to-toe walking test; his eyes were watery and bloodshot and his speech was slurred. The transcript and the record generally indicate that neither these factual elements, elicited at trial through the testimony of the officer, ¹ nor the State's contention that defendant was under the influence of alcohol, were seriously challenged by the defense. The issues briefed and argued lie in other areas.

Two other incidents, occurring after defendant had been taken into custody by the officer, require mention because they relate directly to issues raised by his appeal. During the drive in the state cruiser to the police barracks, defendant told the officer that he was on his way "back from St. Johnsbury, headed towards Newport." The officer was unable to recall whether the remark was spontaneous and voluntary or made in response to some question or comment. Later, after processing at the barracks, and while waiting for a ride to his home, defendant remarked to the officer: "You know, I wish they never made alcohol. I wish I would have been somewhere else tonight. I could have taken a taxi home." We note here that, when the officer testified about these statements, defendant made no objections or motions to strike, nor did his subsequent cross-examination of the officer address them.

I.

Defendant's first challenge is to the trial court's instruction to the jury on "actual physical control." He breaks down his objection into subissues which we consider in the order presented.

In substance, defendant's first subissue questions the controlling statute, 23 V.S.A. § 1201(a)(2), as much as the instruction based on that statute. The relevant part of § 1201 reads:

(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway while:

....

(2) under the influence of intoxicating liquor .... (emphasis added).

Defendant claims that under the statutory language which prohibits a person who is under the influence of intoxicating liquor from being "in actual physical control" of a vehicle, an ordinary person cannot determine what conduct is prohibited. Therefore, he argues, the statute is unconstitutionally vague (presumably under the due process clause of the Fourteenth Amendment to the United States Constitution, see State v. Stevens, 137 Vt. 473, 475, 408 A.2d 622, 623 (1979)).

We recognize that there is some division of opinion among the various jurisdictions in this country as to the interpretation of the phrase "actual physical control" in motor vehicle cases involving a person under the influence of an intoxicant, particularly if the accused is found asleep or unconscious. Nevertheless, we do not agree that the meaning of the statute is as vague and uncertain as defendant claims. There are many criminal statutes for which opposing interpretations have been urged by the respective parties; however, such differences are not necessarily sufficient to render a challenged statute void for vagueness. In such cases it becomes the responsibility of this Court to determine the legislative intent.

In State v. Storrs, 105 Vt. 180, 163 A. 560 (1933), this Court held that the fact the motor of the vehicle could not be activated because of wet wiring did not preclude prosecution for an attempt to operate. More recently in State v. Godfrey, 137 Vt. 159, 400 A.2d 1026 (1979), a case in which the defendant was found "slumped behind the steering wheel, either sleeping or unconscious," we held: "The element of actual physical control is present, whether or not the defendant is in a position to effectively exercise it." Id. at 161, 400 A.2d at 1026-27. In the same case, Justice Larrow, writing for the Court, quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975), said, " 'an intoxicated person seated behind the steering wheel of a motor vehicle [at rest] 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.' " Id. 137 Vt. at 161, 400 A.2d at 1027. Such a person, who is asleep or "passed out," may recover consciousness and drive off while still under the influence.

We hold, first, that the meaning of 23 V.S.A. § 1201(a) is not vague or uncertain within the constitutional strictures of the due process clause of the Fourteenth Amendment. Its language is sufficient, in our judgment, to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. State v. Stevens, supra, 137 Vt. at 479, 408 A.2d at 626 (citing State v. Giant of St. Albans, Inc., 128 Vt. 539, 547, 268 A.2d 739, 744 (1970), which in turn cites United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954)). Secondly, on the basis of their respective facts, we hold that State v. Godfrey, supra, is dispositive of the instant case on its merits. In doing so, we recognize, as defendant contends, that there are some factual differences between this case and Godfrey. These differences are examined below.

In Godfrey the vehicle in which defendant was discovered slumped behind the wheel asleep or unconscious was stopped in one of the main traveled lanes of the highway, blocking traffic in that direction. The motor was running, the key was in the ignition, the taillights were on, and the shift lever was in "park." In the case at bar, the defendant's vehicle was not on the main traveled portion of the highway but in a pull-off area; the motor was not running and the lights had been extinguished.

The trial court, in its initial instruction, quoting essentially from Godfrey, told the jury that "actual physical control" did not require a showing that the vehicle was in motion or that the motor was running, but "that the defendant had the immediate potential to operate." Defendant objected to this instruction. Thereafter, the jury returned from its deliberations with a request for clarification, primarily of the prior instruction relating to the defendant's "immediate potential" to operate. Once again the court relied on language from Godfrey. He instructed the jury that whether defendant had the immediate potential to operate was a question of fact for its determination.

Defendant's protest is on two grounds. First, that the two instructions were contradictory and confusing. We disagree. Both instructions were proper statements of the law, in and of themselves. Moreover, we are satisfied that the second instruction did precisely what it was meant to do. It carried the initial instruction a step further and served to clarify the issue. Accordingly, we reject defendant's contention that the two instructions were either contradictory or confusing.

Second, defendant requested below, and insists again on appeal, that if the court based its instruction on language appearing in Godfrey, then it must explain the factual situation of that case, and that the court's refusal to do so was prejudicial error.

Again, we disagree. Jury instructions in virtually every case are based, in some measure, on earlier decisions. To require a jury to compare factual situations would be a confusing and misleading task. The only proper question here is not the facts of the two cases, but whether the charge correctly stated the law to be applied to the facts of this case,...