Cloyd v. StateCloyd v. State
Christopher Scott Hughes (“Hughes“), a pilot for a commercial airline, and Thomas Porter Cloyd (“Cloyd“), a copilot for the same airline, were criminally prosecuted as codefendants and convicted of operating an aircraft while intoxicated or in a careless or reckless manner, in violation of
THE EVIDENCE
A brief review of the evidence is as follows. Hughes and Cloyd were scheduled to fly a commercial aircraft with approximately 125 passengers onboard, from Miami International Airport to Phoenix, Arizona, at 10:38 a.m., on July 1, 2002. Less than forty minutes prior to departure, Cloyd attempted to pass through an airport security checkpoint, carrying a cup of coffee. When security personnel stopped him and informed him that he could not pass through with the coffee, Cloyd became belligerent, demanded to see the regulations which prohibited the conduct, and used profanity. He did eventually dispose of the coffee. Meanwhile, when Hughes passed through the checkpoint, security personnel noticed an odor of an alcoholic beverage coming from Hughes, and asked him if he had been drinking. Hughes denied that he had been drinking. Security personnel allowed the defendants to continue to their gate, but reported their observations to the Transportation Security Administration (“TSA“) and the defendants’ airline. The TSA notified the Miami-Dade Police Department, and a number of police officers who worked at the airport responded. When they arrived, the defendants were in the cockpit of the aircraft, the jet way had been pulled back from the aircraft, and the aircraft was connected to the tug that pushes it out from the gate. The officers stopped the aircraft by ordering the tug driver to return the aircraft to the gate.
Sergeant Steve Leibowitz, who conducted an examination of the defendants, noticed that each had a flushed face, bloodshot eyes, and the odor of an alcoholic beverage on his breath. Based upon his observations, Sergeant Leibowitz performed a horizontal gaze nystagmus test (“HGN test“) on each of the defendants, and testified that the HGN tests indicated that each was impaired, with an estimated breath alcohol level of approximately .10 percent. He, therefore, arranged for the defendants to be transported to the police station for further testing.
Officer Harold Ruffner, who conducted a breath test of the defendants at the station, testified that Cloyd‘s first breath result was .1091 and his second was .09; while Hughes’ readings were .084 and .081. H. Chip Wells, a forensic toxicologist, testified that, based upon the lowest of Cloyd‘s breathalyzer test results, he calculated through retrograde extrapolation that Cloyd‘s breath alcohol content was between .121 and .15; and that, based upon Hughes’ lowest breathalyzer result, Hughes’ breath alcohol content was between .113 and .145, when they were onboard the aircraft.
In addition to the observations of the security personnel and law enforcement, the results of the HGN tests, the breathalyzer
Over defense objection, the State elicited testimony regarding the .08 blood alcohol limitation for operating a motor vehicle contained in
Whether the defendants were operating the aircraft before the police intervened was a matter hotly disputed at trial. The State‘s commercial aviation expert testified that he considered the pilots to be operating the aircraft when they activated and checked systems prior to departure, and he testified as to the extensive preflight inspections and systems checks that the pilots were required to complete. The pilots must enter critical data into the aircraft‘s computer, including the flight plan of the route, performance data, takeoff speeds, fuel load, and radio configurations for the navigation radio. The information entered into the computer is then displayed in the cockpit for the pilots to refer to when flying the aircraft. The aviation expert testified that he would consider it careless and reckless to perform any of these functions while under the influence of alcohol because they are critical for safety. He testified that the captain gives permission to the tug to begin the push back of the aircraft, and that, although the driver of the tug is physically controlling the movement of the aircraft at that point, the captain is in actual control of the aircraft.
The driver of the tug testified that once the aircraft is hooked up to the tug, he has control of the aircraft; to his knowledge the pilot cannot steer the aircraft; and its engines are not on. He did admit, however, on cross-examination, that, when he is operating the tug, he has to wear a headset to communicate with the pilot and copilot, and cannot begin the push back until the pilot instructs him to do so.
The defendants moved for a judgment of acquittal, arguing that the evidence demonstrated that they did not operate or control the aircraft. The trial court denied their motions. The defendants requested
In closing argument, the State argued, over defense objection, that the defendants could be found guilty of violating
PREEMPTION
The first issue we address in this appeal is whether the trial court erred in denying Cloyd‘s motion to dismiss for lack of jurisdiction. It is Cloyd‘s position that the federal government has preempted all state action regarding the physical qualifications and capacity of a federally certified pilot. Prior to trial, the defendants moved to dismiss the charges based upon federal preemption. When the trial court denied the motion, and the defendants sought review with this court by filing a petition for writ of prohibition, this court denied the writ without opinion, and the defendants petitioned the federal court for a writ of habeas corpus. The United States District Court for the Southern District of Florida granted the petition, finding that the state action was preempted. Hughes v. Eleventh Judicial Circuit of Fla., 274 F.Supp.2d 1334 (S.D.Fla.2003). On appeal, the Eleventh Circuit Court of Appeals reversed the district court‘s opinion, and held that the district court should have abstained from hearing the claim because the defendants’ preemption claim was not facially conclusive. Hughes v. Attorney Gen. of Fla., 377 F.3d 1258 (11th Cir.2004), cert. denied, 543 U.S. 1051, 125 S.Ct. 881, 160 L.Ed.2d 772 (2005).
Based upon controlling case law in our district, we conclude that this claim is barred by res judicata. At the time when the defendants filed their petition and we issued our mandate denying the petition on January 9, 2003, a denial of a petition for a writ of prohibition in our district was a ruling on the merits, unless otherwise indicated. See Obanion v. State, 496 So.2d 977, 980 (Fla. 3d DCA 1986), abrogated by Topps v. State, 865 So.2d 1253, 1258 (Fla. 2004). Because the preemption issue was already decided against the defendants on the merits, they are barred by res judicata from relitigating the claim. Denson v. State, 775 So.2d 288, 290 n. 3 (Fla. 2000)(“The doctrine of res judicata provides that a final judgment on the merits is conclusive of the rights of the parties and constitutes a bar to a subsequent action or suit involving the same cause of action or subject matter.“).
While we conclude that the preemption issue is barred by res judicata, had the issue not been barred, we would have found, as did our sister court to the north, that the defendants’ prosecutions were not preempted. Gluhareff v. State, 888 So.2d 733 (Fla. 5th DCA 2004)(determining
In conducting a preemption analysis in areas traditionally regulated by the states, there is a presumption against preemption. California v. ARC Am. Corp., 490 U.S. 93, 101, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989)(“When Congress legislates in a field traditionally occupied by the States, `we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.‘“)(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Thus, because criminal law is an area traditionally regulated by the states, the defendants have the burden of overcoming the presumption against preemption. Id.; Air Line Pilots Ass‘n, Int‘l v. UAL Corp., 874 F.2d 439 (7th Cir.1989); State v. Klinakis, 206 Ga.App. 318, 425 S.E.2d 665, 669 (1992).
Cloyd argues that his prosecution is expressly preempted by
Cloyd also argues that his prosecution is expressly preempted by
In the alternative, Cloyd argues that field preemption bars his prosecution because the federal government, through the Federal Aviation Administration (“FAA“), has issued pervasive regulations that preempt interference in the subject area of the qualifications and capacity of airmen to pilot aircraft in interstate commercial air transportation. We disagree. First, we note that field preemption should not be inferred “simply because [an] agency‘s regulations are comprehensive.” R.J. Reynolds Tobacco Co. v. Durham County, N.C., 479 U.S. 130, 149, 107 S.Ct. 499, 93 L.Ed.2d 449 (1986); Hughes, 377 F.3d at 1267. Secondly, we find, as did the Eleventh Circuit Court of Appeals, that the existence of
(c) A crewmember shall do the following:
(1) On request of a law enforcement officer, submit to a test to indicate the percentage by weight of alcohol in the blood, when —
(i) The law enforcement officer is authorized under State or local law to conduct the test or to have the test conducted; and
(ii) The law enforcement officer is requesting submission to the test to investigate a suspected violation of State or local law governing the same or substantially similar conduct prohibited by paragraph (a)(1) [operating an aircraft within eight hours of consuming alcohol], (a)(2) [operating an aircraft while under the influence of alcohol], or (a)(4) [operating an aircraft while having a .04 percent or more blood alcohol level] of this section.
Cloyd‘s final preemption argument is that his prosecution is barred by conflict preemption. We disagree because a pilot could comply with both the Florida law and the federal law and regulations, and criminalizing the operation of an aircraft while intoxicated does not stand as an
CONSTITUTIONAL CHALLENGES
Cloyd claims that
Vagueness Challenge
Cloyd claims that the statute is unconstitutionally vague as it fails to define “under the influence” and “operate.” He argues that the failure to define these terms denies a man of ordinary understanding the ability to determine what action is proscribed. By way of example, he argues that a person who consumes one alcoholic beverage and operates an emergency door on the aircraft, could be subject to this statute.
We begin our review and analysis with the presumption that the statute is constitutional, see Fla. Dep‘t of Revenue v. City of Gainesville, 918 So.2d 250 (Fla. 2005); Fla. Dep‘t. of Educ. v. Glasser, 622 So.2d 944, 946 (Fla.1993), and that “courts have the judicial obligation to sustain legislative enactments when possible.” State v. Williams, 343 So.2d 35, 37 (Fla.1977).
A constitutional challenge as to vagueness is based upon procedural due process, whether the statute provides fair notice, measured by common practice and understanding, as to the conduct which is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Hermanson v. State, 604 So.2d 775 (Fla.1992). To raise a vagueness challenge, the defendant must demonstrate that the statute in question lacks specificity as to his own actions, as opposed to some hypothetical situation, State v. Normandale Props., 420 N.W.2d 259 (Minn.Ct. App.1988), or “on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)(citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)(“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.“); Sieniarecki v. State, 756 So.2d 68, 75 (Fla.2000)(defendant lacked standing to raise facial vagueness challenge where his conduct fell within the statute‘s proscription); McKenney v. State, 388 So.2d 1232, 1233 (Fla.1980)(“A person whose conduct clearly falls within the statute‘s prohibition cannot reasonably be said to have been denied adequate notice. . . . “).
After reviewing the evidence presented at trial, we conclude that Cloyd lacks the requisite standing to challenge the statute on vagueness grounds since his conduct clearly falls within the conduct proscribed in
We, therefore, agree with the State, that Cloyd‘s conduct is clearly prohibited by
While we conclude that the statute, as applied to Cloyd and under the facts of this case, is not unconstitutionally vague, and that Cloyd, therefore, lacks standing to facially attack the statute on vagueness grounds, we will nevertheless extend our analysis to address the merits of his claim.
Cloyd argues that the statute is unconstitutionally vague as it fails to define the terms “operate” and “under the influence.” We disagree. The plain and ordinary meaning of a word can be ascertained by reference to a dictionary, Sieniarecki, 756 So.2d at 75, or one may look to “`case law or related statutory provisions which define the term.‘” State v. Fuchs, 769 So.2d 1006, 1008 (Fla.2000)(quoting State v. Hagan, 387 So.2d 943, 945 (Fla. 1980)).
In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics.
As the statute itself incorporates the federal regulations and statutes governing aeronautics in determining what constitutes careless or reckless operation of an aircraft, we have reviewed both the dictionary definition of “operate” and the federal definition.
“Operate” is defined as “[t]o run or control the functioning of.” The American Heritage Dictionary of the English Language 1233 (4th ed.2000). The FAA is charged with the responsibility of promoting air safety and has established various regulations regulating the airline industry and the conduct of pilots. The federal regulations governing aeronautics defines “operate” as follows:
Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).
Although Cloyd did not fly the aircraft, the evidence established that he did “control the functioning of” the aircraft, and did “use, cause to use or authorize to use [the] aircraft, for the purpose . . . of air navigation.” He conducted extensive preflight inspections and systems checks, and inputted critical data into the aircraft computer with the intent (“for the purpose . . . of“) to fly the passengers and crew from Miami to Phoenix (“air navigation“). As his onboard preflight activities clearly fall within both the dictionary definition and the definition of “operate” contained in the federal regulations, and the jury was provided with the definition of “operate” contained in the Code of Federal Regulations, we reject Cloyd‘s constitutional challenge of the statute based upon the failure of the statute to specifically define “operate.”
We likewise reject Cloyd‘s constitutional challenge based upon the statute‘s failure to define “under the influence,” as his conduct, which we have previously addressed, is clearly prohibited under the statute. “The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct.” Brown v. State, 629 So.2d 841, 842 (Fla. 1994). “A person whose conduct clearly falls within [a] statute‘s prohibition cannot reasonably be said to have been denied adequate notice. . . .” McKenney v. State, 388 So.2d 1232, 1233 (Fla.1980).
Incorporation Challenge
Cloyd additionally argues that
In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics.
In Carswell, we found that
EVIDENTIARY ISSUES
Admission of Federal Aviation Regulations
Over defense objection, the trial court permitted the State to introduce evidence that, pursuant to federal regulations for the safe operation of an aircraft, a crewmember is prohibited from operating an aircraft within eight hours of consuming any alcoholic beverages, or with a blood alcohol level of .04 or above. As
A review of the record reflects that the State focused on Cloyd‘s actions, not on federal regulations. The State argued that it had proven its case based upon the following. When Cloyd arrived for the 10:38 a.m. flight, he was late, smelled of alcoholic beverages, had bloodshot eyes and a flushed face, and attempted to pass through the airport security gate with a cup of coffee, in violation of security regulations. When told that he could not do so, Cloyd became belligerent and used profanity. The evidence established that he had consumed a martini and wine with dinner and continued to drink all night with the pilot. Together they consumed seven 34-ounce and seven 16-ounce mugs of beer, drinking until at least 5:00 a.m., despite being required to begin preflight operations before 10:00 that morning
Failure to Admit the .10 Federal Criminal Presumption
While Cloyd claims that the trial court erred when it precluded him from introducing evidence that, under the federal law criminalizing the operation of a common carrier under the influence of alcohol, the presumption of intoxication is .10, we reject this argument on the same basis wherein we concluded that the federal regulation prohibiting operation of an aircraft with a blood alcohol level of .04 was inadmissible. The federal statute in question,
Admission of Tharpe‘s Equation
Cloyd contends that the trial court erred in permitting Sergeant Leibowitz to rely on the Tharpe‘s Equation after performing the HGN test in estimating Cloyd‘s blood alcohol level, without conducting a Frye analysis to determine its validity. The HGN test evaluates the ability of the eye to track a moving object smoothly. See Williams v. State, 710 So.2d 24, 29 n. 7 (Fla. 3d DCA 1998). The Tharpe‘s Equation is the formula used to correlate a blood alcohol level based upon the angle of onset of the observed nystagmus, which is when the eye begins to “jerk” while trying to follow an object.
In Williams, we took judicial notice that HGN test results are generally accepted as reliable in the relevant scientific community and therefore, the requirements of Frye were satisfied. Williams, 710 So.2d at 32. Once a proper foundation is laid that the test was correctly administered by an officer properly trained and qualified to
Use of Beer Mugs as Demonstrative Evidence
Cloyd additionally objects to the State‘s use of fourteen beer mugs as demonstrative evidence of the number and size of the beers reflected on Hughes’ and Cloyd‘s bar tab, as none of the witnesses could testify that Hughes and Cloyd drank all of the beer contained on their tab. “`Demonstrative evidence is admissible only when it is relevant to the issues in the case. Such evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved.‘” Harris v. State, 843 So.2d 856, 863 (Fla. 2003) (quoting Alston v. Shiver, 105 So.2d 785, 791 (Fla.1958)). The number and size of the beers reflected on the bar tab was relevant as to the amount of beer Cloyd had consumed that night and was supported by his blood alcohol levels the following morning onboard the aircraft. While there was no witness who actually observed exactly how many mugs of beer Cloyd drank, that fact goes to the weight, not the admissibility of the evidence. As the demonstrative evidence was relevant and supported by competent substantial evidence, we find no abuse of discretion in its use.
Cross-examination
Cloyd asserts that the trial court improperly limited the cross-examination of Sergeant Leibowitz in regard to the field sobriety tests that he conducted. However, the defense was permitted to and did cross-examine the sergeant as to the tests that he did not conduct and the reason why he did not conduct them. The trial court determined that further inquiry into the exact nature of the tests that he performed was not relevant and sustained an objection. This was not an abuse of discretion. Furthermore, the breathalyzer test results clearly corroborated the sergeant‘s testimony.
JURY INSTRUCTIONS
Inoperability
Cloyd argues that, because the aircraft was attached to a tug which controlled the movement of the aircraft, the trial court erred in rejecting his request for a jury instruction on inoperability. Inoperability is a defense to driving a motor vehicle under the influence, pursuant to
1. That the defendant drove or was in actual physical control of a vehicle, and
2. While driving or in actual physical control of the vehicle the defendant
a. was under the influence of [alcoholic beverages][a chemical substance][a controlled substance] to the extent that [his][her] normal faculties were impaired, or
b. had a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood, or a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
“Actual physical control of a vehicle” means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless
of whether he/she is actually operating the vehicle at the time.
Fla. Std. Jury Instr. (Crim.) 28.1.
A defendant, therefore, may be found guilty of this offense if he/she (1) drove or is driving a vehicle while under the influence or (2) is in actual physical control of a vehicle while under the influence. While the State is not required to prove that the vehicle is capable of operation, inoperability may be a defense to whether the defendant was in actual physical control of the vehicle. Jones v. State, 510 So.2d 1147, 1149 (Fla. 1st DCA 1987); see also Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 144-47 (Fla.1998). The defense of inoperability is based upon the premise that:
a person ought not be convicted of having a vehicle under his or her control while intoxicated when in fact the vehicle was inoperable, the intoxicated person did not operate the vehicle prior to its becoming disabled, and the vehicle‘s mechanical problems were such that it could not under any reasonable circumstances have been operated by the person accused.
Jones v. State, 510 So.2d at 1149.
Cloyd, however, was not charged with violating
(1) It shall be unlawful for any person:
(a) To operate an aircraft in the air or on the ground or water while under the influence of:
1. Alcoholic beverages;
2. Any substance controlled under chapter 893;
3. Any chemical substance set forth in s. 877.111; or
(b) To operate an aircraft in the air or on the ground or water in a careless or reckless manner so as to endanger the life or property of another.
(2) In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics.
Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).
As is readily obvious,
“[A] trial court has wide discretion in instructing the jury, and the court‘s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal,” Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001), which will not be disturbed on appeal “unless palpable abuse of this discretion is clearly shown from the record.” Williams v. State, 437 So.2d 133, 136 (Fla.1983). The trial court is not required to provide additional instructions if the instructions given are adequate or when a requested instruction would only serve to confuse the jury. See Carpenter, 785 So.2d at 1200; Doyle v. State, 483 So.2d 89, 90 (Fla. 4th DCA 1986).
Because “operate” is an element of the crime charged and that term was defined, we find that the trial court did not err in failing to instruct the jury on “inoperability.” Additionally, as actual physical control only requires that the vehicle, which in this case is an aircraft, be reasonably capable of being rendered operable, not that the defendant have the immediate ability to operate the vehicle, the trial court did not err by failing to provide the requested instruction.
A review of the case law reveals that the “reasonably capable of being rendered operable standard” is applied when a person is charged with driving under the influence and claims either that the vehicle was not operational or that he was not in actual physical control of the vehicle. For example, if a person is found passed out behind the steering wheel of a vehicle with the keys either in the ignition or on the floor of the vehicle, he may be found guilty of violating this statute because he is in actual physical control of a vehicle which can readily be made operational. See State, Dep‘t of Highway Safety & Motor Vehicles v. Prue, 701 So.2d 637 (Fla. 2d DCA 1997)(conviction upheld for being in actual physical control while under the influence where a defendant was found passed out in a vehicle on the shoulder of a highway, with her face resting on the steering wheel and the keys either in the ignition or on the floor of the vehicle, because she could have used the keys to start the vehicle and drive away); Baltrus v. State, 571 So.2d 75 (Fla. 4th DCA 1990)(upholding the reversal of a motion to dismiss where the defendant was found passed out and slumped over the steering wheel of his car, with the keys to the car in his hands); Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988)(finding that the trial court erred by dismissing a charge of being in actual physical control of a vehicle while under the influence, where the defendant was found lying down, asleep in the front seat of his automobile, with the engine off but with the keys in the ignition, explaining that the presence of the keys in the ignition led to the inference that the defendant could have started the automobile and have driven away at any time); Griffin v. State, 457 So.2d 1070, 1072 (Fla. 2d DCA 1984)(affirming a conviction based
In State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984), a case relied upon by the First District in Jones v. State, 510 So.2d 1147 (Fla. 1st DCA 1987), the court applied the “reasonably capable of being rendered operable standard” to a driving under the influence statute similar to Florida‘s, and concluded that the defendant was in actual physical control and, therefore, guilty of the offense, where he was found intoxicated in his car which was out of gas. The court explained that “control” means more than the ability to stop an automobile. It includes the authority to manage it. Smelter, 674 P.2d at 692. “Actual physical control” is the present ability to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment. Id. (citing State v. Purcell, 336 A.2d 223, 226 (Del.Super.Ct.1975)); see also State v. Starfield, 481 N.W.2d 834 (Minn.1992)(actual physical control proven where car keys were found in defendant‘s jacket pocket and car was stuck in a snow-filled ditch); Abeln v. Comm‘r of Pub. Safety, 413 N.W.2d 546 (Minn.Ct.App.1987)(actual physical control found despite dead battery); State v. Woodward, 408 N.W.2d 927 (Minn.Ct.App.1987)(actual physical control found where vehicle had a flat tire); State v. Duemke, 352 N.W.2d 427 (Minn.Ct.App.1984)(actual physical control where car was stuck in a snow-filled ditch).
In contrast, when a vehicle‘s condition renders it incapable of being operated and it cannot be readily made operable due to the necessity of making substantial mechanical repairs or other factors which reflect that the vehicle‘s disability is not just temporary, then physical control is not established. See Jones, 510 So.2d 1147, 1149 (Fla. 1st DCA 1987)(finding that the defendant could not be convicted of driving under the influence in light of evidence that the vehicle she was found in was inoperable, the defendant did not operate the vehicle prior to it becoming disabled, and the vehicle‘s mechanical problems were such that it could not, under any reasonable circumstances, have been operated where vehicle had to be pushed to an automobile repair shop and electrical problems prevented the car from running); State v. Carter, 889 S.W.2d 231, 233 (Tenn.Crim.App.1994)(finding insufficient evidence to support defendant‘s conviction for driving under the influence because her car was incapable of being operated without substantial mechanical repairs; experienced mechanic testified that the car was “dead,” could not be jump started, and could only be started if the carburetor was replaced or taken apart and thoroughly cleaned).
The rationale for applying the “reasonably capable of being rendered operable standard” is due to the recognition that the law in this area is preventive in nature. Its purpose is to deter intoxicated individuals from getting into their vehicles, except as passengers, and enables law enforcement to apprehend an intoxicated driver before he strikes.
In general, laws prohibiting driving while intoxicated are deemed remedial statutes, to be “liberally interpreted in favor of the public interest and against the private interests of the drivers involved.” [State v. Juncewski, 308 N.W.2d 316, 319 (Minn.1981)]. Specifically, actual physical control statutes have been characterized as “preventive
measure[s],” State v. Schuler, [243 N.W.2d 367, 370 (N.D.1976)], which “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)], and which “enable the drunken driver to be apprehended before he strikes.” State v. Webb, [78 Ariz. 8, 274 P.2d 338, 339 (1954)].
Smelter, 674 P.2d at 693. It is for these reasons that the courts in our state and in the states which have similar driving under the influence statutes have concluded that temporary inoperability does not preclude a finding of physical control, and have held “that physical control is meant to include situations where an intoxicated individual is found in a parked car under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the driver, to others, or to property.” State v. Hendricks, 586 N.W.2d 413, 415 (Minn.Ct.App.1999)(citing Starfield, 481 N.W.2d at 838-39).
In the instant case, there was no evidence introduced which even suggested that the aircraft was experiencing any mechanical difficulties. Although the aircraft was not capable of moving under its own power when it was attached to the tug, the defendants easily could have rendered it capable of moving under its own power at any time by ordering the tug to be detached from the aircraft. But more importantly, whether the defendants could move the aircraft under its own power during the time it was being towed by the tug is irrelevant and, with all due respect to the defense, nothing more than a red herring. The undisputed evidence at trial was that the defendants “operated” the aircraft well before it was attached to the tug and towed away from the gate in preparation for its takeoff. The undisputed evidence was that the defendants, acting as pilot and copilot of this commercial aircraft with over 100 passengers onboard, while sitting in the cockpit of the aircraft and thus in actual physical control of the aircraft, performed extensive preflight duties for the purpose of flying the aircraft.
To “[o]perate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose . . . of air navigation including the piloting of aircraft, with or without the right of legal control. . . .”
The State‘s case, simply put, was that the defendants operated the aircraft under the influence of alcohol or in a careless or reckless manner during these preflight procedures, not that they flew or drove the aircraft while under the influence or in a careless or reckless manner. If the jury was not persuaded by the evidence that these procedures satisfied the “operate” prong, the defendants would have been not guilty.
In summary, since (1) the State was required to prove beyond a reasonable doubt that Cloyd did operate the aircraft (an essential element of the crime charged); (2) the State‘s case was premised on whether the pilot and copilot violated the statute by taking control of the aircraft and performing the preflight functions while under the influence of alcohol; and (3) as there was no evidence of any mechanical or other problem which rendered the aircraft incapable of being operated without substantial mechanical repairs, the trial court did not abuse its discretion by failing to instruct on inoperability.
Attempt
Cloyd claims that the trial court erred in refusing to instruct the jury on attempt, arguing that since he and the pilot only performed preflight duties while the aircraft was attached to the tow vehicle and the aircraft was stopped by law enforcement before the tow vehicle was detached, they had not yet operated the aircraft. We recognize that if there is evidence to support a requested instruction, a defendant has a right to have the jury so instructed. Evans v. State, 831 So.2d 808, 810 (Fla. 4th DCA 2002). However, it is also well-settled law that a trial court may not instruct the jury on attempt if there is no evidence to support the attempt or when the evidence establishes a completed offense.
The definition of operate provided to the jury in accordance with
Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).
The preflight duties of a pilot and copilot are extensive, as described by Captain Chronic, the State‘s expert witness in the field of aircraft operations and flight standardization safety. The flight crew is required to be at the airport at least forty-five minutes before departure to perform all of these preflight activities. Paperwork must be reviewed, the aircraft must be inspected, and the various systems on the
The copilot, which in this case was Cloyd, inspects the flight deck equipment, ensures that all the required books and manuals are present, checks the two circuit breakers, and verifies that the handle of the landing gear is in the down position. He checks the engine control panel, engine master, and mode switches. He checks the radar control panel, ensuring that the switches are in the correct position, and determines which of the three possible sources of power, including the auxiliary power unit (“APU“) located in the tail of the aircraft, is powering the entire electrical system of the aircraft. The APU powers the aircraft when it is pushed away from the gate before the engine starts. If it is not on, the copilot must “start it up and bring it on-line.” He checks that the fire warning systems are operating correctly, that the air-conditioning packets are on-line, verifies that the emergency exit lights are armed, and starts the computer navigational system. The copilot must check the oil quantity of the engines and the level of “hydraulic system surfacing,” and ascertain that the parking brake is set. Captain Chronic testified that in conducting all of the above described activities, the aircraft is being operated, and that these activities are “part and parcel of the overall operation of the aircraft.”
Once the initial cockpit checks are completed, the copilot must exit the aircraft and conduct a walk around inspection of the aircraft. Upon re-entering the cockpit, he must check the emergency escape route and the window latch before taking his seat. The oxygen system is then checked, and he will obtain the latest weather reports and operating field conditions, and finds out which runway will be used for takeoff. He must then enter this information into the “takeoff and landing card.”
Captain Chronic also described the “flow patterns” that the pilots conduct. A “flow pattern” is a checklist of all of the things that must be checked by the pilot and copilot before the aircraft takes off. The flow pattern is done from memory first and then followed by a checklist. The pilot and copilot each have their own flow pattern because each has a critical system on his side of the cockpit.
The captain begins his flow pattern while the copilot is conducting the walk around. He obtains the flight paperwork and reviews it before starting the flow pattern from memory. He starts by checking the three separate navigational systems, checks that there are no fault lights in the air data, checks that the evacuation system scroll is in the proper position, checks the emergency electrical power panel, checks the ground proximity warning control pattern, and activates the cockpit voice recorder. The captain then checks the oxygen system, verifies with the copilot that a fire check was done, and checks the hydraulic system and that the two engine driven pumps are on. He turns on the fuel pumps in both wings and sets the mode select control into automatic. He then checks that the generator switches are on and that the APU is powered. From there, the captain activates the electrical page and brings up the schematic of the electrical system of the aircraft, and makes sure that the batteries are recharging properly. The air conditioning panel is checked next to ensure that the APU is powering the air conditioning system. He then checks that the three anti-ice systems are off, that the window heat and the heat for the pilot flows are on, and that the cabin pressurization switches are in the proper position.
The flight plan of the route, the performance data, the various takeoff speeds, the fuel load, and any special radio configuration for the navigation radio, must all be entered. Captain Chronic testified that the inputting of this data into the computer system is “absolutely” operating the aircraft because of the importance of the data to the flight. The data is used to route the aircraft and is referenced during takeoff. Captain Chronic testified that these flow and systems checks are “part and parcel of operating the aircraft, and preparing for flight.” He testified that it is irrelevant that the aircraft‘s engines are not actually turned on while the flow pattern is being performed because “[t]his is all part of the operating, of preparing the airplane for flight. This is operating the airplane,” and that without the data, there would be no display information for the pilot to refer to when flying the aircraft.
In order to obtain permission for departure, the pilots must call the air traffic controller on an assigned radio frequency. The controller reads off the clearance information, the altitude, and a frequency and transponder code, which the pilots copy down. The copilot enters this information onto the takeoff and landing card, and then into the flight computer. He enters information into the computer such as the flight number, cruising altitude, fuel amount, and the flight plan. He testified that the route of the flight is physically inputted into the computer at the gate before the aircraft is pushed back from the gate, and that the information determines where the automatic flight system will steer the aircraft. He testified that inputting this information is operating the aircraft and that an error in inputting this information could conceivably cause a midair collision.
Captain Chronic explained that the pilots obtain the total weight of the airplane a few minutes before departure. That weight is correlated to a speed from a speed chart. That speed is entered into the flight computer, and the entering of the speed into the computer is operating the aircraft because it is critical in any decision to abort a takeoff. He additionally explained how information is inputted into the computer to obtain the takeoff safety speed, and how the flap setting and the horizontal stabilizer trim are inputted for takeoff, and stated that an improper flap setting could cause an accident because the aircraft simply will not fly.
Captain Chronic testified that after the flows are completed, the pilot who is going to fly the aircraft goes through a final briefing with the copilot. They then run through the challenge and reply check, an actual checklist read by the copilot and responded to by the captain. A document,
Having reviewed the extensive preflight procedures that the pilot and copilot engage in before takeoff, it is clear that a person who conducts these procedures is operating the aircraft in accordance with the definition contained in
THE VERDICT
Pursuant to
In reaching the conclusion that
The reverse was found in State v. Dumas, 700 So.2d 1223 (Fla.1997), regarding
Based upon our review of these cases, we conclude that when a statute sets forth a specific prohibited act and then specifies the various means by which the act can be committed, then, and only then, does it create a single offense. When a statute sets forth various acts, stating that each is prohibited and/or provides for different punishment depending on the act committed, then the statute creates multiple offenses.
The State argues that
MISCELLANEOUS
We have additionally reviewed the remaining arguments on appeal, and conclude that they are without merit.
Affirmed.
SUAREZ, J., concurs.
SCHWARTZ, Senior Judge, concurs in conclusion only.