Burnette v. Municipality of Anchorage (12/20/91) ap-1187
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
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THE COURT OF APPEALS OF THE STATE OF ALASKA
DOUGLAS E. BURNETTE, )
)
Appellant, ) Court of
Appeals No. A-3738
) Trial
Court No. 3AN-M90-3495CR
v. )
) O P I N I
O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1187 - December 20, 1991]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, Natalie K. Finn and Glen C.
Anderson, Judges.
Appearances: Michael B. Logue, Gorton &
Oberly, Anchorage, for Appellant. Cesar O.
Velasquez, Assistant Municipal Prosecutor,
James F. Wolf, Municipal Prosecutor, and
Richard McVeigh, Municipal Attorney,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, Mannheimer,
Judge, and Andrews, Superior Court Judge.*
[Coats, Judge, not participating.]
BRYNER, Chief Judge.
Douglas E. Burnette pled no contest and was convicted
of driving while intoxicated (DWI), in violation of Anchorage
Municipal Code (AMC) 09.28.020A. Because he had previously
been convicted of DWI in Oregon in 1987, Burnette was sentenced
as a second-time DWI offender. District Court Judge Glen C.
Anderson imposed a sentence of 90 days with 70 days suspended and
a $1,000 fine with $500 suspended. The 20 days Burnette was
sentenced to serve and the $500 unsuspended portion of the fine
coincide with the mandatory minimum penalties for second-time DWI
offenders set forth in AMC 09.28.020C.
Burnette argues that the court erred in sentencing him
as a second offender based on his Oregon DWI conviction. The
court imposed its sentence pursuant to the authority of AMC
09.28.020C, which provided at the time of Burnette's sentencing:
Upon conviction under this section, the court
shall impose a minimum sentence of:
. . . .
2.Imprisonment not less than 20
consecutive days and a fine of not
less than $500.00 if, within the
preceding 10 years, the person has
been previously convicted once in
this or another jurisdiction of
driving while intoxicated under
this or another law or ordinance
with substantially similar elements
or refusal to submit to a chemical
test under AS 28.35.032, AMC
9.28.022 or another law or
ordinance with substantially
similar elements.1
Burnette argues that his 1987 Oregon DWI should not
have been treated as a previous conviction under AMC
09.28.020C, because the elements set forth in the Oregon DWI
statute are not substantially similar to those set forth in AMC
09.28.020B. We agree, and accordingly reverse Burnette's
sentence.
AMC 09.28.020B provides:
A person commits the crime of driving while
intoxicated if he or she operates, drives or
is in actual physical control of a motor
vehicle or operates an aircraft or a
watercraft:
1. while under the influence
of intoxicating liquor, depressant,
hallucinogenic, stimulant or
narcotic drugs as defined in
AS 11.71.140-.190; or
2. when, as determined by a
chemical test taken within four
hours after the alleged offense was
committed, there is 0.10% or more
by weight of alcohol in the
person's blood or 100 milligrams or
more of alcohol per 100 milliliters
of blood, or when there is 0.10
gram or more of alcohol per 210
liters of the person's breath; or
3. while the person is under
the combined influence of
intoxicating liquor and a drug or
drugs, or intoxicating liquor and
another substance that when
introduced into the body acts as a
central nervous system depressant
or stimulant, to a degree which
renders the person incapable of
driving safely; or
4. while the person is under
the influence of a drug or drugs,
or another substance that when
introduced into the body acts as a
central nervous system depressant
or stimulant, to a degree which
renders the person incapable of
driving safely.
The corresponding Oregon statute, ORS 813.010, provides in
relevant part:
(1)A person commits the offense of
driving while under the influence of
intoxicants if the person drives a
vehicle while the person:
(a)Has .08 percent or
more by weight of alcohol
in the blood of the
person as shown by
chemical analysis of the
breath or blood of the
person made under
ORS 813.100, 813.140 or
813.150;
(b)Is under the influence
of intoxicating liquor or
a controlled substance;
or
(c)Is under the influence
of intoxicating liquor
and a controlled
substance.
The parties' dispute as to the similarity of the elements set
forth in these two provisions centers on the blood alcohol
percentages set forth in AMC 09.28.020(B)(2) and
ORS 813.010(1)(a). The district court, although conceding that
it was "a close question," found that the elements of the two
offenses were substantially similar.
When determining whether a conviction from another
jurisdiction is to be treated as a prior conviction for purposes
of sentencing under Alaska law, the focus is not on the facts
underlying the prior conviction, but rather on the language of
the statute defining the offense. Walsh v. State, 677 P.2d 912,
915 (Alaska App. 1984).2
We have not previously interpreted the statutory phrase
"substantially similar elements," which appears in both
AMC 09.28.020 and the corresponding state DWI statute,
AS 28.35.030. However, we have applied the "substantially
similar elements" standard in the context of Alaska's felony
presumptive sentencing scheme. In Martin v. State, 704 P.2d 1341
(Alaska App. 1985), we upheld the superior court's decision to
treat Martin as a third-time felony offender for purposes of
presumptive sentencing. Martin had argued that the Oklahoma
statute under which he had been convicted for felony escape so
differed from Alaska's felony escape statute that his Oklahoma
conviction should not have been considered for presumptive
sentencing purposes. AS 12.55.145(2) provides:
A conviction in this or another jurisdiction
of an offense having elements similar to
those of a felony defined as such under
Alaska law at the time the offense was
committed is considered a prior felony
conviction[.]
We agreed with the superior court in Martin that the standard to
be applied under this statute was whether the elements of the
prior offense were "substantially similar" to those of an Alaska
felony. Martin, 704 P.2d at 1342. In that case, we rejected
Martin's argument that Alaska's escape statute was more narrowly
drawn than the Oklahoma escape statute. We held:
Although there are differences between the
elements of the Oklahoma and Alaska statutes,
those differences render the Oklahoma statute
more restrictive than the Alaska statute.
Accordingly, while it appears that there may
be some cases where a defendant convicted
under the Alaska statute would not be
convicted under the Oklahoma law, the
converse is not true: any offender who could
be convicted under the Oklahoma law would be
subject to conviction under the elements of
the Alaska statute as well. Under these
circumstances, any differences between the
legislative schemes will not preclude a
finding of substantial similarity.
Id. at 1342.
Here, we are faced with the converse of the situation
presented in Martin. The Oregon DWI statute is less restrictive
than the Anchorage ordinance. Under such circumstances, we have
held that the earlier conviction cannot be treated as a prior
conviction for purposes of enhanced or presumptive sentencing.
See Harlow v. State, _____ P.2d _____, Op. No. 1173 (Alaska App.,
November 8, 1991) (Oregon felony conviction for "unauthorized use
of a vehicle" is not a prior felony conviction for presumptive
sentencing purposes, because unlike Alaska's felony joyriding
statute, Oregon's statute does not require the state to prove
that the defendant has been previously convicted of joyriding);
Garroutte v. State, 683 P.2d 262 (Alaska App. 1984) (prior
conviction under former Alaska statute which penalized receiving
and concealing stolen property as a felony, did not qualify as a
prior felony conviction for presumptive sentencing purposes
because the former statute did not require proof of the value of
the stolen property, whereas the current statute provided for a
$500 jurisdictional minimum for felony theft convictions); Walsh
v. State, 677 P.2d 912 (Alaska App. 1984) (New York felony grand
larceny conviction for theft of property valued at more than $50
but not exceeding $500 could not be used as prior felony
conviction for presumptive sentencing purposes because of
Alaska's $500 jurisdictional minimum for felony theft
convictions); Lee v. State, 673 P.2d 892 (Alaska App. 1983)
(grand larceny conviction under former Alaska statute making
theft of property valued in excess of $100 a felony could not be
considered a prior felony conviction due to current $500 minimum
for felony theft convictions).
All of these cases but Harlow were decided under former
AS 12.55.145(a)(2), which provided in part:
a conviction in this or another jurisdiction
of an offense having elements substantially
identical to those of a felony defined as
such under Alaska law is considered a prior
felony conviction[.]
Although the term "substantially identical" is somewhat narrower
than "substantially similar," this distinction does not dilute
the authority of Garroutte, Walsh, and Lee here. The reasoning
in all three opinions extends beyond the narrow confines of the
term "substantially identical." See Harlow, _____ P.2d _____,
Op. No. 1173 at 5-6, in which we relied on Garroutte, despite the
fact that it had been decided under the former statute.
Burnette's plea of guilty to DWI charges in Oregon
signified only his expectation that the state could meet its
burden to prove that his blood alcohol level at the time he was
driving was .08 percent or more. It would be as unfair under the
"substantially similar" standard as under the "substantially
identical" standard to construe his plea as an admission that he
was guilty of the offense of driving with a blood alcohol level
of .10 percent or more.
The municipality attempts to distinguish this case from
Garroutte, Lee, and Walsh, all of which involve prior convictions
for theft. The municipality argues that, unlike Alaska's felony
theft statutes, the Anchorage DWI ordinance contains no "value
element." The municipality's position appears to be that a .10
percent blood alcohol content is not an element of the offense of
DWI under the Anchorage statute because it is possible to be
convicted of DWI under the statute with a blood alcohol reading
of less than .10 percent. We are not persuaded by this argument.
The .10 percent blood alcohol level specified in AMC
09.28.020(b)(2) is an element of the offense of DWI under that
ordinance. The fact that it is one of several alternative
elements does not mean that it is not an element of the offense.
The same is true of the .08 percent blood alcohol level specified
in ORS 813.010(1)(a).
All the State of Oregon would have had to prove to
obtain a DWI conviction under its statute was that Burnette drove
with a blood alcohol content of .08 percent or greater. From the
record in this case, it appears that it was in anticipation of
the State of Oregon's ability to prove this fact that Burnette
entered his plea of guilty to DWI. The result we reach might be
different if the municipality had established before the district
court that Burnette's Oregon DWI conviction was based on an
"under the influence" theory rather than on his blood alcohol
content.3 However, in this case the record indicates only that
Burnette had a chemical test result of .09 percent blood alcohol
content and pled guilty to DWI. There is no indication that the
State of Oregon presented or would have been able to present any
evidence that Burnette was "under the influence" of intoxicating
liquor or a controlled substance. Under these circumstances, we
cannot conclude that the .08 percent blood alcohol content
specified in ORS 813.010(1)(a) was not an element of the DWI
offense of which Burnette was convicted in Oregon. We hold that
this element is not substantially similar to the corresponding
element in AMC 09.28.020B. Consequently, we REVERSE Burnette's
sentence and remand this case to the district court for
resentencing of Burnette as a first time DWI offender.4
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. This section of the Municipal Code has since been
amended, but there are no substantive changes to the ordinance's
provision for the mandatory minimum sentence for second time DWI
offenders.
2. The record indicates that the chemical test result
underlying Burnette's plea of guilty to DWI charges in Oregon
showed his blood alcohol level at the time of the offense to be
.09 percent. Judge Anderson estimated that the likelihood of a
DWI conviction in Alaska with a .09 blood alcohol test result was
"slim indeed." However, Judge Anderson recognized that the
factual basis for the Oregon conviction was not the proper focus
of his inquiry.
3. Cf. AS 12.55.145(d) ("If the defendant introduces
substantial evidence that . . . a conviction should not be
considered a prior felony conviction under (a)(2) of this
section, then the burden is on the state to prove the contrary
beyond a reasonable doubt.").
4. Although Burnette's Oregon conviction does not make him
a second-time DWI offender in Alaska, that conviction is relevant
to his sentence in this case. Burnette's Oregon conviction may
properly be considered by the court in resentencing Burnette.
See e.g., Harlow v. State, _____ P.2d _____, Op. No. 1173 at 6
n.2; Garroutte v. State, 683 P.2d at 269.
