Mar 30, 2012 - By Martin Reed, Staff WriterA defense attorney for a Riverton police officer is pushing for the dismissal of a charge that accuses the officer of being a hazard while off-duty and under the influence of alcohol.
Lawyer Vance Countryman is asking Lander Circuit Judge Robert B. Denhardt to dismiss the sole charge against Ron Cunningham because the criminal allegation does not specifically define a hazard.
"What is the hazard? Is it biological? Is it a slip hazard? To be perfectly honest with you, I don't know what that hazard is," Countryman said during a hearing March 13 in Lander.
His references to "biological" and "slip" hazards refer to allegations that Cunningham cut in line at a bathroom and urinated "all over the place" in front of a 10-year-old boy July 3 at Boysen State Park, according to court documents.
Cunningham allegedly was intoxicated at the time of the incident, which upset the boy's family members and others and caused the off-duty officer to flee the area on his boat with his girlfriend.
He faces a charge of violating a Wyoming state parks regulation alleging he was under the influence to the point of becoming a hazard. The charge carries a maximum punishment of a $210 fine.
Cunningham had also been charged with misdemeanor interference with a peace officer, but special prosecutor Greg Blenkinsop in Sweetwater County asked to dismiss that count Dec. 23.
Cunningham's jury trial is set for April 5 and April 6 in Lander's Circuit Court.
Countryman wants the charge dismissed. He contends the regulation is unconstitutional because it does not specify an allegation.
"I would like to argue that the regulation is void on its face," he said. "I think that it is void for vagueness as applied to Mr. Cunningham."
By not identifying the specific criminal act, "the only possible reason for doing that is so the jury can leave it up to its own mind what constitutes a hazard," Countryman said.
"It is impossible to do anything that doesn't have a hazard associated with it," he said.
Countryman has attempted to clarify the issue by requesting a document called a bill of particulars from the special prosecutor in the case. Although he received one that outlines a host of Cunningham's actions alleged to constitute various hazards, the judge has denied Countryman's request for another.
"My client literally has no other means of protection from arbitrary and capricious conduct by the state," Countryman said. "My client should not be put in a position where he has to guess or speculate" what the jury would think is a hazard.
Blenkinsop compared Cunningham's charge to the criminal statute for being a pedestrian under the influence.
"One requires using the state parks while the other requires being on a public highway," Blenkinsop said, noting the hazard is not a specific action.
The statute prohibiting driving under the influence states "the degree of hazard is (being) incapable of safely driving," he said.
"A hazard is a danger," Blenkinsop said. "It's not an occurrence."
The prosecutor argued that with Cunningham being a police officer, he should be aware of laws pertaining to public intoxication.
"If anyone is on notice about public intoxication laws, it is the defendant," he said.
"Was he on notice? Absolutely," Blenkinsop said. "These are powerful facts. These are strong facts."
According to the first bill of particulars, Cunningham's alleged actions enraged family members and others, "causing them to pursue Defendant to his boat and making physical violence imminent had Defendant not climbed into his boat and left the scene."
At about 9 p.m. the same day, three park rangers located Cunningham's boat docked along the shoreline in the park's Birds Eye area and made contact with the off-duty officer and his girlfriend, according to the document.
Cunningham swayed as he walked, had red, watery eyes, slurred speech, and smelled of alcohol, the document states.
"While on the boat, Defendant's wife had to grab hold of him to prevent him from falling. Defendant's intoxication made him a hazard to himself, his wife, and others in the area," according to the document.
The regulation in question, like other criminal laws, intends to prevent more severe actions and consequences from occurring, Blenkinsop said.
"We don't have to show that people were harmed," he said. "We try to stop people from being harmed. This law is in place to essentially stop people from getting so drunk they possibly harm other people."
Although Denhardt did not immediately rule on the matter, his statements sided with the prosecutor. The judge noted elements of the charge that include being under the influence of alcohol to a degree that renders the defendant a hazard.
"Rendered him a hazard," Denhardt said, citing the specific element. "It's not that he created a danger. It's not that he created anything. ... You don't create a hazard. It's just that he is a hazard."
After reading the statute for being a pedestrian under the influence, Denhardt noted the law prohibits someone from walking on a public highway while intoxicated to point of being a hazard. He compared the violation to the one at hand.
"So if you're intoxicated to a degree that renders you a hazard, you cannot use park lands. That's the way the statute is," he said.
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