Hughes v. StateHughes 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
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 results, and the forensic toxicologist‘s expert opinion regarding the defendants’ breath alcohol at the time they were onboard the aircraft, the State introduced the defendants’ bar tab from the night before, a videotape of them at the bar being served, and the testimony of witnesses. This evidence corroborated the observations and test results regarding the defendants’ consumption of alcohol. The night before this scheduled flight, the defendants shared a bottle of wine with two crew members at dinner, and each of the defendants also drank a martini. From the restaurant, they proceeded to Mr. Moe‘s Restaurant and Bar (“Moe‘s“) where they opened a bar tab at approximately 10:49 p.m. From 10:49 at night until after 5:00 the next morning, they drank at Moe‘s, ordering seven 34-ounce mugs of beer, eight 16-ounce mugs of beer, a martini, and a burger. The two crew members, who were with the defendants, consumed one 16-ounce beer, the martini, and the burger, and left before midnight. The videotape showed the defendants continuously drinking throughout the night, and leaving just after 5:00 a.m., with the remainder of their beers, which they poured into a plastic cup carried by Cloyd. The evidence also established that Cloyd, Hughes, and the crew arrived at the airport late because Hughes had overslept.
Over defense objection, the State elicited testimony regarding the .08 blood alcohol limitation for operating a motor vehicle contained in
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 a jury instruction on “inoperability,” arguing that the evidence established that the aircraft could not be flown while it was attached to the tug. Cloyd, but not Hughes, additionally requested that the court instruct the jury on attempt. Both requests were denied by the trial court. Over the defendants’ objections, the court granted the State‘s request for an instruction on principals.
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 Hughes’ motion to dismiss for lack of jurisdiction. It is Hughes’ 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
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 that
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).
Hughes argues that his prosecution is expressly preempted by
In the alternative, Hughes 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.
Hughes’ 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 obstacle to the federal regulatory scheme. Hughes, 377 F.3d at 1266 n. 11.
CONSTITUTIONAL CHALLENGES
Hughes claims that
Vagueness Challenge
Hughes 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 Hughes 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 Hughes’ conduct is clearly prohibited by
Hughes 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 Hughes 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 Hughes’ constitutional challenge of the statute based upon the failure of the statute to specifically define “operate.”
We likewise reject Hughes’ 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
Hughes 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 at Trial 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 Hughes’ actions, not on federal regulations. The State argued that it had proven its case based upon the following. When Hughes arrived for the 10:38 a.m. flight, he was late, smelled of alcoholic beverages, had bloodshot eyes and a flushed face, but denied that he had been drinking. The evidence established that he had consumed a martini and wine with dinner and continued to drink all night with the copilot. 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 for a commercial flight carrying over 100 passengers. In support of the State‘s claim that Hughes appeared to be under the influence and that he had in fact consumed as much alcohol and as late as the evidence suggested, the State relied on the results of the HGN test, which placed Hughes’ blood alcohol level at, at least, .10; the subsequent breath test results, which placed his blood alcohol level at between .113 and .145 when he was operating the aircraft; Hughes’ admission that he had consumed “many” beers throughout the night; and the expert‘s testimony that Hughes’ ability to operate the critical systems of the aircraft would be impaired at these levels. As the State did not place any emphasis on the improperly admitted evidence, and the evidence establishing that Hughes operated the aircraft under the influence of alcoholic beverages and/or in a careless or reckless manner so as to endanger the lives of those aboard the aircraft was overwhelming, we conclude that the improperly introduced evidence was harmless beyond a reasonable doubt.1
Failure to Admit the .10 Federal Criminal Presumption
While Hughes 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 statutes in question,
Admission of Tharpe‘s Equation
Hughes contends that the trial court erred in permitting Sergeant Leibowitz to rely on the Tharpe‘s Equation after performing the HGN test in estimating Hughes’ 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 administer the test, the results are admissible. Id.; see also Bowen v. State, 745 So.2d 1108 (Fla. 3d DCA 1999).
Use of Beer Mugs as Demonstrative Evidence
Hughes 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 Hughes and Cloyd had consumed that night and was supported by their blood alcohol levels the following morning onboard the aircraft. While there was no witness who actually observed exactly how many mugs of beer each 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.
JURY INSTRUCTIONS
Inoperability
Hughes 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.
Hughes, 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
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 691-92. “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
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 Hughes 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.
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
Based on the particular facts of this case and the wording of
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.