Court Refuses to Recognize Lesser Offense of Attempted DUI

Whiting v. State of Alaska, 2005 Alas. App. LEXIS 115 (Alaska Ct. App. Oct. 12, 2005).

Stephanie Showalter

Whiting v. State of Alaska will definitely make my Top Ten list of favorite cases for 2005. An Alaskan boater recently sought to overturn his conviction for felony driving under the influence by making the intriguing argument that the jury should have been instructed on the lesser offense of attempted DUI. The Court of Appeals of Alaska wasted no time dismissing this argument.

Background
It all started when Michael Whiting decided to go fishing with his girlfriend and her six-year-old son. Whiting piloted his skiff into the Gastineau Channel and turned the motor off. While the skiff drifted and the three fished, Whiting remained near the rear of the skiff by the motor drinking alcoholic beverages.
Things went rapidly downhill when a Coast Guard vessel approached the skiff to see if the little boy was wearing a life vest. The officers soon realized that Whiting was intoxicated and arrested him for driving under the influence despite Whiting’s pleas that he was sober when he piloted the boat into the Channel. Shocking!

“Attempted” DUI
Relying on public defenders to keep you out of jail can be risky. Whiting, however, won the public defender lottery. His attorneys vigorously argued at trial that a reasonable juror presented with the above facts could conclude that Whiting was not guilty of operating a watercraft under the influence for the simple reason that the motor was off. That’s like arguing a motorist drinking while stuck in a massive traffic jam is not guilty of DUI if the motor is off. Doesn’t seem quite right, does it? Although Whiting’s attorneys conceded that he intended to start the motor when they were done fishing, they insisted he could be found guilty only of attempted DUI since he had not actually driven the boat while intoxicated. The trial judge refused to instruct the jury on such an offense.

The Court of Appeals affirmed the ruling of the trial judge and highlighted the fundamental flaw in Whiting’s argument. Whiting’s defense is based on the assumption that the statutory definition of driving under the influence does not encompass the situation in which an intoxicated person is in control of a watercraft whose engine is off.1 The court disagreed, stating that operating a watercraft includes being in control of a watercraft even when the engine is not running. Since Whiting was in control of the skiff, he was operating the skiff for the purposes of the Alaska DUI statute.

As for Whiting’s attempt argument, to constitute an attempt under Alaskan law, the defendant’s intent to commit a crime must be accompanied by “conduct which constitutes a substantial step toward the commission of that crime.”2 Until the defendant takes that step, there is no punishable attempt. Whiting’s mere willingness or intention to operate the skiff while intoxicated later in the day is not an attempt.

Conclusion
Whiting v. State of Alaska is yet another reminder that fact is often as entertaining as fiction. You simply cannot make this stuff up. And let this be a lesson to all you boaters out there. If you are going to drink while on a fishing trip, move to the front of the boat and sober up before piloting the vessel home. A few extra hours spent fishing might just keep you out of jail.

Endnotes
1. Under Alaska Stat. §28.35.030(a), “a person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft.”
2. Alaska Stat. § 11.31.100(a).