FSM SUPREME COURT APPELLATE DIVISION

Cite as Phillip v. Kosrae, 15 FSM Intrm. 116 (App. 2007)

[15 FSM Intrm. 116]

WICKLON PHILLIP,

Appellant,

vs.

STATE OF KOSRAE,

Appellee.

APPEAL CASE NO. K1-2006

OPINION

Argued:  April 17, 2007

Decided:  June 21, 2007

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
 

APPEARANCES:

For the Appellant:    Harry A. Seymour, Esq.

                                 Office of the Public Defender

                                 P.O. Box 245

                                 Tofol, Kosrae   FM   96944
 

For the Appellee:      J.D. Lee, Esq.

                                 Kosrae Attorney General

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Standard of Review ) Criminal Cases

      When the appellate court is asked to review the trial court’s legal conclusion that the Kosrae DUI statute was constitutional, the appellate court will restate the issue as, whether the trial court correctly concluded that, as a matter of law, Kosrae State Code Section 13.710 is not void for vagueness since "clearly erroneous" is applied on appeal to findings of fact made by the trial court in civil cases. Phillip v. Kosrae, 15 FSM Intrm. 116, 119 (App. 2007).

Appellate Review ) Standard of Review ) Criminal Cases; Constitutional Law ) Due Process ) Vagueness

      Since statutory vagueness is a due process concept and since the wording of the Due Process

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Clauses of the Kosrae Constitution and of the FSM Constitution is identical, these two constitutional provisions may be treated as identical in meaning and in scope. The appellate court will proceed as if the statute is challenged under both. Phillip v. Kosrae, 15 FSM Intrm. 116, 119 (App. 2007).

Appellate Review ) Standard of Review ) Criminal Cases

      On appeal, the appellate court reviews issues of law de novo. Phillip v. Kosrae, 15 FSM Intrm. 116, 119 (App. 2007).

Constitutional Law ) Due Process ) Vagueness

      Whether a challenged statute is unconstitutionally vague is a two-part analysis. The statute must provide fair notice to members of the public, and it must also furnish police and judges with adequate enforcement standards. Fair notice means that the law gives an individual of ordinary intelligence a reasonable opportunity to understand the proscribed activity, and to conform his conduct to the law’s requirements. A law permits arbitrary and discriminatory enforcement if it does not provide explicit enforcement standards, and a vague law’s defect is that it allows law officers and judges to subjectively determine basic policy questions on a case-by-case basis. Phillip v. Kosrae, 15 FSM Intrm. 116, 119 (App. 2007).

Constitutional Law ) Interpretation

      When the appellate court has not had previous occasion to consider the constitutionality of a DUI statute, the court may consider cases from other jurisdictions in the common law tradition. Phillip v. Kosrae, 15 FSM Intrm. 116, 119 (App. 2007).

Constitutional Law ) Due Process ) Vagueness; Criminal Law and Procedure ) Traffic Offenses

      Cases upholding the constitutionality of statutes criminalizing driving "under the influence" reflect the fact that alcohol, its consumption, and effects have long been a part of human experience. DUI statutes enacted with the arrival of the motor vehicle take that experience into account. Phillip v. Kosrae, 15 FSM Intrm. 116, 120 (App. 2007).

Constitutional Law ) Due Process ) Vagueness; Criminal Law and Procedure ) Traffic Offenses

      The Kosrae DUI statute does not violate the vagueness doctrine because it employs the phrase "under the influence." It provides both law enforcement officers and judges with the necessary enforcement standards. "Driving under the influence" is commonly understood to mean driving in a state of intoxication that lessens a person’s normal ability for clarity and control. A police officer will know that he may take enforcement action where he observes an individual exhibiting this commonly understood behavior. That a police officer must exercise his judgment in evaluating this behavior does not render the statute vague. Phillip v. Kosrae, 15 FSM Intrm. 116, 120 (App. 2007).

Constitutional Law ) Due Process ) Vagueness; Criminal Law and Procedure ) Traffic Offenses

      "Driving under the influence" provides a judge with a sufficient enforcement standard. Based upon the evidence that a judge hears and is entitled to consider, he may determine whether a defendant was "under the influence" such that he was driving in a state of intoxication that lessened his normal ability for clarity and control. The statute thus passes constitutional muster. Phillip v. Kosrae, 15 FSM Intrm. 116, 120-21 (App. 2007).

Criminal Law and Procedure ) Traffic Offenses

      In Micronesia, our communities are small, roadways are limited, and on occasion may be in less than optimal condition. Active village life takes place near those roadways. In this setting, drunken driving can have consequences for people in addition to those who may at any given moment be traveling on, or be in the vicinity of, the roads. A DUI statute that prohibits "driving under the influence" is a useful and reasonably effective means of helping to insure the safety of those who travel

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on, are present near, or live near public roadways in our island communities. Phillip v. Kosrae, 15 FSM Intrm. 116, 121 (App. 2007).

Constitutional Law ) Due Process ) Vagueness; Criminal Law and Procedure ) Traffic Offenses

      When the accused either was or was not driving "under the influence," and it was the arresting officer’s job to exercise his judgment to determine whether there was probable cause to believe the accused’s ability for clarity and control had been lessened by his consumption of alcohol, or in other words, whether the accused was driving "under the influence," and when Kosrae’s statute did not require the accused to offer an explanation for his conduct and any such exculpatory explanation would have been immaterial to his objective state of sobriety or lack thereof, the Kosrae DUI statute is not void for vagueness and does not violate the Due Process Clause of either the Kosrae Constitution or the FSM Constitution. Phillip v. Kosrae, 15 FSM Intrm. 116, 121 (App. 2007).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     Wicklon Phillip appeals his January 18, 2006, conviction for violation of Kosrae’s driving under the influence statute, Section 13.710 of the Kosrae State Code.  He was also convicted of violating Kosrae State Code Sections 13.517(2) and 13.702, but those two additional convictions are not appealed.

     For the reasons that follow, we affirm the judgment of the trial court.

I.   Facts

      On September 25, 2004, at approximately 6:00 p.m. in Malem, Kosrae, Kosrae police officers Burdy Talley and Kiobu Luey saw Phillip driving toward them on the roadway in a cargo truck.  He was speeding and weaving, and the officers were forced to pull their vehicle to the side of the road to avoid Phillip’s truck.  After Phillip’s truck had passed them, the officers turned around and gave chase.  They turned on their lights and sounded their horn to indicate to Phillip to stop, but he did not.  The officers continued to follow, and the speedometer in the officers’ car reached 65 miles an hour at one point.  Phillip finally came to a stop when his vehicle overheated.

      When the officers approached the truck, they smelled alcohol on Phillip’s breath, and saw that his eyes were bloodshot.  They also observed cans of Budweiser, one of which was opened, in the passenger compartment.  Phillip had neither a driver’s license nor a drinking permit in his possession.  Officer Kiobu Luey then asked Phillip if he had any physical problems, and Phillip said "no."  Officer Luey administered field sobriety tests (FST’s), and after Phillip failed two of them (the finger-to-nose and one-legged-stand), Phillip was arrested and charged by information filed on September 27, 2004, with driving under the influence, Kos. S.C. § 13.710, possessing or consuming alcohol without being in possession of a valid drinking permit (Kos. S.C. § 13.517(2)), and operating a motor vehicle without a driver’s license in his possession, Kos. S.C. § 13.702.

       On March 7, 2005, Phillip filed a motion for a declaratory judgment that the Kosrae DUI statute, Kos. S. C. § 13.710, is unconstitutionally vague.  That motion was denied by order of June 21, 2005. Kosrae v. Phillip, 13 FSM Intrm. 285 (Kos. S. Ct. Tr. 2005).  Trial occurred on October 12, 2005.  On January 16, 2006, the judge made his findings, found Phillip guilty on all three charges, and pronounced sentence.  On January 18, 2006, the judgment of conviction and sentencing order were

[15 FSM Intrm 119]

entered. Kosrae v. Phillip, 14 FSM Intrm. 42 (Kos. S. Ct. Tr. 2006).  On the DUI charge, Phillip was fined $200, and sentenced to 12 months incarceration, with the jail time suspended on condition of successful completion of probation.  Phillip was sentenced to additional jail time for the other two convictions, but that was also subject to suspension upon successful completion of probation.  On February 2, 2006, Phillip filed his timely notice of appeal.

II.   Issue

      On appeal Phillip frames a single issue as follows:  "Whether the trial court’s finding that the Kosrae State Code Section 13.710 is not unconstitutionally vague is clearly erroneous."  "Clearly erroneous" is applied on appeal to findings of fact made by the trial court in civil cases.  See, e.g., Livaie v. Weilbacher, 13 FSM Intrm. 139, 143 (App. 2005); Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1996).  We are asked to review the trial court’s legal conclusion that the Kosrae DUI statute was constitutional.  Thus we restate the issue as, whether the trial court correctly concluded that, as a matter of law, Kosrae State Code Section 13.710 is not void for vagueness.

       Phillip does not specify whether he mounts his challenge to the constitutionality of the statute under the Kosrae Constitution or FSM Constitution, or both.  Vagueness is a due process concept.  FSM v. Nota, 1 FSM Intrm. 299, 304 (Truk 1983).  The wording of the Due Process Clause of the Kosrae State Constitution and that of the FSM Constitution is identical, and these two constitutional provisions may be treated as identical in meaning and in scope.  Alik v. Kosrae Hotel Corp., 5 FSM Intrm. 294, 297 (Kos. 1992).  We proceed as if Phillip challenged the statute under both.

III.   Standard of Review

     On appeal, we review issues of law de novo.  Sigrah v. Kosrae, 12 FSM Intrm. 320, 324 (App. 2004).

IV.   Discussion

      Phillip challenges his conviction under Section 13.710, which provides as follows:  "Driving under the influence.  Driving under the influence is driving a vehicle under the influence of alcoholic drink or a controlled substance or any other intoxicating substance.  Driving under the influence is a category 1 misdemeanor."  Phillip contends that the statute is unconstitutionally vague because it fails to provide police officers and judges with sufficient guidelines for enforcement by not defining "under the influence," and because it offers no criteria for how that determination is to be made.

      Whether a challenged statute is unconstitutionally vague is a two-part analysis.  FSM v. Anson, 11 FSM Intrm. 69, 75 (Pon. 2002).  The statute must provide fair notice to members of the public, and it must also furnish police and judges with adequate enforcement standards.  Id.  Fair notice means that the law gives an individual of ordinary intelligence a reasonable opportunity to understand the proscribed activity, and to conform his conduct to the law’s requirements.  Id. at 75-76.  A law permits arbitrary and discriminatory enforcement if it does not provide explicit enforcement standards, id. at 76, and a vague law’s defect is that it allows law officers and judges to subjectively determine basic policy questions on a case by case basis. Id.  Phillip focuses his argument on the second part of the inquiry, and urges that the Kosrae DUI statute, by using the term "driving under the influence," does not provide law enforcement with sufficient standards for enforcement.  He argues that the law neither defines "under the influence" nor specifies how that condition is to be determined.

      We have not had previous occasion to consider the constitutionality of a DUI statute.  In such an instance, we may consider cases from other jurisdictions in the common law tradition. 

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Rauzi v. FSM, 2 FSM Intrm. 8, 14-15 (Pon. 1985).

      Cases upholding the constitutionality of statutes criminalizing driving "under the influence" reflect the fact that alcohol, its consumption, and effects have long been a part of human experience.  DUI statutes enacted with the arrival of the motor vehicle take that experience into account.  For example, in Virgin Islands v. Steven, 134 F.3d 526, 528 (3d Cir. 1998) the court noted:

[C]ourts have recognized for over half a century that driving "under the influence" is commonly understood to mean driving in a state of intoxication that lessens a person’s normal ability for clarity and control. This common understanding is consistent with the obvious purpose of drunk driving statutes; i.e. to prevent people from driving unsafely due to an alcohol-induced diminished capacity.

(citation omitted).  In Cargile v. State, 262 S.E.2d 87, 89 (Ga. 1979), the court stated that "the phrase ‘driving under the influence of alcohol’ is universally recognized and understood, and it is not deficient because indefinite or unintelligible."  In State v. Campbell, 681 P.2d 679, 679 (Kan. Ct. App. 1984), the court held that "under the influence of alcohol" is generally understood, and that its use in a drunk driving statute does not render the statute void for vagueness.  Lastly, in Sabo v. State, 732 P.2d 475, (Okla. Crim. App. 1987) the court concluded that "men of common intelligence could not differ" as to the conduct proscribed by driving under the influence statute, and that statute was therefore not unconstitutionally vague.  This common understanding of the phrase underlies the fact that, as Kosrae points out, twenty U.S. states have statutes that criminalize driving "under the influence."  Thus the phrase has withstood the tests of time and extended use.  "Courts have consistently rejected constitutional vagueness challenges to statutes containing the term "under the influence."  Steven, 134 F.3d at 528.

       The Kosrae DUI statute, Kos. S.C. § 13.710, does not violate the vagueness doctrine because it employs the phrase "under the influence."  It provides both law enforcement officers and judges with the necessary enforcement standards.  Like the Steven court, we agree that "driving ‘under the influence’ is commonly understood to mean driving in a state of intoxication that lessens a person’s normal ability for clarity and control."  134 F.3d at 528.  A police officer will know that he may take enforcement action where he observes an individual exhibiting this commonly understood behavior.  That a police officer must exercise his judgment in evaluating this behavior does not render the statute vague.  On this point the court in Steven noted:

Steven further contends that the statute fails to pass constitutional muster because it permits subjective pretextual interpretation by law enforcement officials.  This argument is without merit.  The fact that the officers exercised independent judgment in assessing whether Steven was intoxicated at the time of his arrest does not bear upon the constitutionality of the otherwise clear drunk driving statute.

134 F.3d at 528.

       Similarly, "driving under the influence" provides a judge with a sufficient enforcement standard. Based upon the evidence that a judge hears and is entitled to consider, he may determine whether a defendant was "under the influence" such that he was "driving in a state of intoxication that lessen[ed

[15 FSM Intrm 121]

his] normal ability for clarity and control."  Id.  The statute passes constitutional muster.

      We note that in Micronesia, our communities are small, roadways are limited, and on occasion may be in less than optimal condition.  Active village life takes place near those roadways.  In this setting, drunken driving can have consequences for people in addition to those who may at any given moment be traveling on, or be in the vicinity of, the roads.  A DUI statute that prohibits "driving under the influence" is a useful and reasonably effective means of helping to insure the safety of those who travel on, are present near, or live near public roadways in our island communities.

       Phillip does not direct our attention to a case from any jurisdiction that has held that a statute proscribing driving while intoxicated is unconstitutionally void for vagueness.  He does rely in material part, however, on State v. Bitt, 798 P.2d 43 (Idaho 1990).  Bitt is distinguishable, since at issue there was a Pocatello, Idaho, city ordinance that purported to proscribe "loitering and prowling." Id. at 47.  The court noted that "a reasonably intelligent individual could, if pressed, be able to form some idea of what sort of conduct the ordinance proscribes."  Id. at 48.  Thus the "fatal constitutional flaw" in the ordinance was not that it did not provide notice of the prohibited conduct, but rather that it provided insufficient guidance to those charged with its enforcement.  Id. Enforcement depended on the ability of the suspect to adequately identify himself and to offer an explanation to the police officer that satisfied the officer that the suspect was not engaging in the prohibited activity.  Id. at 49.  The ordinance "vest[ed] complete discretion in the hands of the police officer to determine whether the person has provided a credible and reliable explanation," and in so doing the ordinance "creat[ed] the potential for arbitrary and discriminatory arrests."  Id. Moreover, the ordinance’s requirement that the suspect explain his activities to a police officer implicated the suspect’s right to remain silent.  Id.  These defects in the ordinance led the Idaho Supreme Court to conclude that the ordinance was constitutionally infirm.  Id.

      In contrast to Bitt, Phillip either was or was not driving "under the influence," and it was the arresting officer’s job to exercise his judgment to determine whether there was probable cause to believe Phillip’s ability for clarity and control had been lessened by his consumption of alcohol, or in other words, whether Phillip was driving "under the influence." Kosrae’s statute did not require Phillip to offer an explanation for his conduct.  Indeed, any such exculpatory explanation would have been immaterial to his objective state of sobriety or lack thereof.  More to the point, it would have been impossible for Phillip, or anyone, to "explain away" a state of intoxication.  Thus Bitt does not apply to the facts before us.

      Accordingly, the Kosrae DUI statute, Kos. S.C. § 13.710, is not void for vagueness.   It does not violate the Due Process Clause of either the Kosrae State Constitution or the FSM Constitution.

V.   Conclusion

      Based on the foregoing, we affirm the judgment of conviction and sentencing order entered by the Kosrae State Court on January 18, 2006.

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Footnotes:

1.   Kosrae cites the DUI laws of Alaska, California, Connecticut, Delaware, Idaho, Iowa, Louisiana, Massachusetts, Michigan, Missouri, Nevada, New Hampshire, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Maryland.

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