[¶ 1.] Raymond Andrews appeals his conviction for operating a boat with 0.08% or more by weight of alcohol in his blood.
FACTS
[¶2.] In September 2005 Andrews was charged with alternativе counts of operating a boat while under the influence of alcohol or with 0.08% or more by weight of alcohol in his blood. Andrews initially pled not guilty and requested a jury trial. Jury selеction began on January 18, 2006. During voir dire, a question apparently arose over how the trial court intended to instruct the jury on the issue of the “operation” of a boаt. After an in-chambers discussion of the issue between the court and counsel, Andrews elected to enter a guilty plea to the charge of operating a boat with 0.08% оr more by weight of alcohol in his blood. He was sentenced to 90 days in the county jail and a $500 fine. Both the fine and jail time were suspended on various terms and conditions including payment of costs and court appointed attorney’s fees.
[¶ 3.] Andrews was convicted under SDCL 42-8-45(1), which provides:
No person may operate a boat while underway on the public waters of the state whilе:
(1) There is 0.08 percent or more by weight of alcohol in that person’s blood as shown by chemical analysis of that person’s breath, blood, or other bodily substance;
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Any violation of this section is a Class 1 misdemeanor.
(Emphasis added.) The operation of a boat under this statute is defined as “to navigate or otherwise use a boat[.]” SDCL 42-8-2(4)(emphasis added). Andrews argues that these statutes are unconstitutionally overbroad and vague because the emphasized language could be construed to apply to a passenger’s use of, a boat, and no reasonablе person would expect such conduct to constitute a crime.
[¶4.] Before we may address Andrews’ argument, we must first determine the effect of his plea of guilty. It is “ ‘the generаl rule that a voluntary and intelligent plea of guilty waives a defendant’s right to appeal all nonjurisdictional defects in the prior proceedings.’ ”
State v. Hoeft,
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to thе entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea ...
[¶ 5.] There is, however, an exception to this general rule of wаiver. As explained in
Weisberg v. State of Minnesota,
[a]s a general rule, “[a] defendant’s knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutionаl rights that occurred before the entry of the guilty plea.’ ” United States v. Vaughan,13 F.3d 1186 , 1187 (8th Cir.[1994]) (quoting Tollett v. Henderson,411 U.S. 258 , 267,93 S.Ct. 1602 , 1608,36 L.Ed.2d 235 (1973)), cert.denied, Vaughan v. U.S., 511 U.S. 1094 ,114 S.Ct. 1858 ,128 L.Ed.2d 481 (U.S. 1994). There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a сertain type of claim that has been variously defined as a claim that attacks “the State’s power to bring any indictment at all,” United States v. Broce,488 U.S. 563 , 575,109 S.Ct. 757 , 765,102 L.Ed.2d 927 (1989), that protects a defendant’s “right not to be haled into court,” Blackledge v. Perry,417 U.S. 21 , 30,94 S.Ct. 2098 , 2104,40 L.Ed.2d 628 (1974), and that “the charge is one which the State may not constitutionally prosecute,” Menna v. New York,423 U.S. 61 , 62-63 n. 2,96 S.Ct. 241 , 242 n. 2,46 L.Ed.2d 195 (1975) (per curiam).
This exception was further explained in
U.S. v. Morgan,
A claim that a statute is facially unconstitutional falls within the exсeption. See Sodders v. Parratt,693 F.2d 811 , 812 (8th Cir.1982) (holding guilty plea does not foreclose attack on constitutionality of criminal statute under which defendant was charged-defendant claimed statute was vague on its face); United States v. Johnston,199 F.3d 1015 , 1019 n. 3 (9th Cir.1999). [However, n]o court has applied the exception to a claim, like [appellant’s], that a statute is unconstitutional as applied. See Johnston,199 F.3d at 1019 n. 3.
Therefore, under this exception, while a guilty plea waives a claim that a statute is unconstitutional as applied, it does not waive a claim that a statute is fаcially unconstitutional.
[¶ 6.] “A ‘facial’ challenge, in this context, means a claim that the law is ‘invalid
in toto
— and therefore incapable of any valid application.’ ”
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
In examining a facial challenge, [a] court must first “determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Hoffman Estates,455 U.S. at 494 ,102 S.Ct. 1186 ,71 L.Ed.2d 362 . Where the enactment does not reach constitutionally protected conduct, “the overbreadth challenge must fail[,]” id., and the complainant may succeed in a vagueness challеnge “only if the enactment is im-permissibly vague in all of its applications.” Id. at 495,455 U.S. 489 ,102 S.Ct. 1186 ,71 L.Ed.2d 362 . Pursuing this line of analysis, the Supreme Court cautioned courts to “examine the complainant’s cоnduct before analyzing other hypothetical applications of the law[,]” id, because “[a] plaintiff who engages in some conduct that is clearly proscribеd cannot complain of the vagueness of the law as applied to ... others.” Id. Therefore, “vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.” United States v. Nadi996 F.2d 548 , 550 (2d Cir.1993) (citing Chapman v. United States,500 U.S. 453 , 467,111 S.Ct. 1919 ,114 L.Ed.2d 524 (1991)).
Woodis v. Westark Community College,
[¶ 7.] SDCL 42-8-45(1) does not reach constitutionally protected activities such as speech. Moreover, because the statute not only prohibits the use, but also the navigation of a boat, it cannot be said that it is impermissibly vague in all applications. After all, no citation of authority is necessary to sustain the proposition that
[¶ 8.] We also observe that even if Andrews’ “as applied” challenge had not been waived by his plea, he waived it by failing to present an adequate factual record of the conduct at issuе. In analyzing as applied challenges, a court must examine the complainant’s conduct and the specific facts of the case at hand.
See Woodis, supra.
That is not possible here. Because Andrews entered a guilty plea, the record of his conduct and the specific facts of the case would generally be confined to the factual basis entered for his plea.
See McCarthy v. U.S.,
[¶ 9.] This Court has repeatedly instructed that the party claiming error carries the responsibility of ensuring аn adequate record for review.
State v. Cates,
[¶ 10.] Based upon the foregoing, Andrews’ “as applied” challenge was waived by his guilty plea, and even if it was not, his challengе fails for lack of an adequate record for review.
[¶ 11.] Affirmed.
Notes
. The trial court offered Andrews the following alternatives to presеrve his legal argument: "I would reject [Andrews' proposed] instruction and you could protect the record on a plea so that would be appealable. Or we could do a trial before the Court, if you want to do it that way, and stipulated facts.” Andrews apparently declined these opportunities and simply pleaded guilty.
.
See also Balk v. Martin,