State v. Bedard

BISTLINE, Justice.

On April 29, 1989, a jury convicted Bedard of reckless driving, eluding a police officer, and operation of a motor vehicle on a suspended license. Bedard appealed from all three convictions to the district court.

On appeal to the district court, appellant Bedard claimed that the State was required to prove, as an element of the offense of eluding a police officer, that the emergency lights or siren used by the police officer complied with the statutory specifications set forth in former Idaho Code § 49-606 [now 49-623]. The district court agreed with Bedard’s contention and reversed his conviction for eluding a police officer. The district court upheld the other two convictions.

The State appeals the reversal of the eluding a police officer conviction, and Bedard cross-appeals from that part of the district court’s order upholding the other two convictions.

On the afternoon of August 6,1988, Deputy Gary Dagastine of the Kootenai County Sheriff’s Department observed Bedard operating a “dirt bike” style motorcycle on Hidden Valley Road in Kootenai County. According to Deputy Dagastine, Hidden Valley Road is a winding and hilly dirt road with blind corners and cresting hills. Dagastine testified at trial that Bedard was operating the bike along Hidden Valley Road at speeds between fifty and sixty miles per hour while consistently riding on the wrong side of the road, turning blind corners, and cresting blind hills. Dagastine stated that, at one point, Bedard passed a pickup truck at a speed of approximately fifty to fifty-five miles per hour while approaching a hill crest.

Deputy Dagastine activated his vehicle’s emergency equipment (wig-wag headlights, overhead blue lights, and siren) and pursued Bedard for approximately three miles. Officer Dagastine testified that during much of the pursuit he was within twenty feet of the bike and that on at least two occasions Bedard looked back at the officer.

Bedard turned onto Idaho Road, which is paved, and traveled about one mile before stopping. On two occasions, Bedard stopped his bike long enough for the officer to approach him, only to ride off as the officer drew near. After a third stop, Deputy Dagastine made contact with Bedard.

At the time of the occurrence, Bedard’s driving privileges had been suspended due to a prior reckless driving conviction. Bedard successfully moved in limine to suppress at trial any evidence of his prior reckless driving conviction.

*871I. ELUDING A POLICE OFFICER

The State’s sole issue on appeal is whether the State must prove, as an element of the offense of eluding a police officer, that the emergency lights or siren used by the police officer complied with the statutory specifications set forth in former Idaho Code § 49-606 [now 49-623]. Those specifications include an audible signal having a decibel rating of at least one hundred at a distance of ten feet, and/or a flashing light visible in a 360 degree arc at a distance of one thousand feet under normal atmospheric conditions.

The State claims that proof of compliance with the signal specifications of I.C. § 49-606 [now 49-623] is not an element of the offense of eluding an officer. Former I.C. § 49-1102 [now 49-1404] defines the offense:

Fleeing or attempting to elude a peace officer — Penalty.— (1) Any driver of a motor vehicle who wilfully flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop shall be guilty of a misdemeanor. The signal given by a peace officer may be emergency lights or siren.

In State v. Monaghan, 116 Idaho 972, 783 P.2d 311 (Ct.App.1989), the Court of Appeals held that before a conviction for failure to yield to an emergency vehicle may stand, the State must prove that the police vehicle’s emergency equipment complied with the requirements set forth in I.C. § 49-606 [now 49-623]. The district court in the present case relied on Monaghan and concluded:

Although Monaghan is factually distinct from the present matter, the analysis of the Court of Appeals is sufficiently broad to gain this Court’s attention in this case. The Court’s review of the record of this matter does not reveal any such proof of compliance by the State at trial. The eluding an officer conviction will be reversed.

R. 77A.

The State claims that the district court’s reliance on Monaghan is misplaced because Monaghan was charged with failure to yield to an emergency vehicle, a violation of former Idaho Code § 49-645 [now 49-625], which specifically incorporates the requirements of I.C. § 49-606 [now 49-623]. Eluding an officer, as charged in the present case and set forth in I.C. § 49-1102 [now 49-1404], does not refer to I.C. § 49-606 [now 49-623] in any manner.

In Monaghan, the Court of Appeals determined that the statute defining failure to yield to an emergency vehicle was clear and unambiguous and must be read literally to incorporate the signal specifications of I.C. § 49-606 [now 49-623]. In the present case, the term used in I.C. § 49-1102 [now 49-1404], “visual or audible signal to bring the vehicle to a stop” which “may be emergency lights or siren,” is vague and indefinite unless it is construed with the § 49-606 [now 49-623] requirements as well. Obviously, the waving of a flashlight or the honking of a horn would not suffice for a visual or audible signal to bring the vehicle to a stop.

For a driver to avoid being charged with either of the offenses of failure to yield to an emergency vehicle or eluding an officer, the driver must bring his or her vehicle to a stop when alerted by an emergency vehicle’s visual or audible signal. In order to comply with these statutes, the driver must actually be able to see or hear the emergency vehicle’s signal. Only by construing the term “visual or audible signal” with the § 49-606 [now 49-623] requirements for emergency lights and sirens can we conclude with a comfortable degree of certainty that a conviction for either of these offenses is just.

The State failed to prove that a proper visual or audible signal to stop was given and therefore the decision of the district court reversing the conviction for eluding an officer is affirmed.

II. DRIVING ON A SUSPENDED LICENSE

Bedard contends that his conviction for driving while suspended must be set aside because the offense was improperly charged. The State charged Bedard with *872driving while suspended under former I.C. § 49-1532(a). That section provides:

Any person whose license or registration or nonresident’s operating privileges has been suspended or revoked under this act and who during such suspension or revocation drives any motor vehicle upon any highway or knowingly permits any motor vehicle owned by such person to be operated by another upon any highway except as permitted by this act, shall be deemed guilty of a misdemeanor and be fined not more than $300 or imprisoned not exceeding 6 months, or both.

Under this section, one of the essential elements of the offense is that the suspension must have been made “under this act.” The term “under this act” referred exclusively to former I.C. §§ 49-1501 through 49-1534.

Bedard contends that because his license was originally suspended for a violation of former I.C. § 49-330, not for a violation of I.C. §§ 49-1501 through 49-1534, the suspension was not made “under this act.” However, the record establishes that Bedard’s license would not have been suspended at the time of the present offense had he not failed to post proof of insurance as required by former I.C. § 49-1517 [now replaced and modified by 49-1208].

Therefore, Bedard’s license was suspended under former I.C. § 49-1517, and the suspension is one that falls “under this act.” The offense was properly charged and the conviction is affirmed.

III. RECKLESS DRIVING

Former I.C. § 49-1103 [now 49-1401] defines the offense of reckless driving:

(a) Reckless Driving. Any person who drives ... carelessly and heedlessly or without due caution and circumspection, and at a speed or in a manner so as to endanger or be likely to endanger any person or property, or who passes when there is a line in his lane indicating a sight distance restriction, shall be guilty of reckless driving.

Bedard contends that the record in the present case does not conclusively establish that his driving speed exceeded the maximum speed limit for the area or that he endangered person or property.

A jury verdict will not be disturbed on appeal where there is substantial and competent evidence to support the verdict. State v. Clayton, 101 Idaho 15, 607 P.2d 1069 (1980). The jury was entitled to consider the officer’s testimony that Bedard was operating his motorcycle at high speeds on the wrong side of the road while turning blind corners and cresting blind hills. The conviction for reckless driving is therefore affirmed.

JOHNSON and McDEVITT, JJ., concur. BAKES, C.J., and BOYLE, J., concur in Parts II and III.