NOTICE: The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DOROTHEA HOOPLE, )
) Court of Appeals No. A-7165
Appellant, ) Trial Court No. 3PA-97-2144 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1639 - July 16, 1999]
__________________)
Appeal from the Superior Court, Third Judicial District,
Palmer, Beverly W. Cutler, Judge.
Appearances: Verne E. Rupright, Wasilla, for Appellant. Eric
A. Johnson, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
MANNHEIMER, Judge.
Under Alaska law, the offense of driving while intoxicated is normally a
misdemeanor.1 But AS 28.35.030(n) declares that this offense is a class C felony if,
within the previous five years, the defendant has been convicted two or more times for
either driving while intoxicated or refusing to submit to a breath test.2
Dorothea Hoople was convicted of felony DWI under this statute. On
appeal, she argues that this statute violates the constitutional guarantee of due process3
because it fails to require proof that the defendant acted with a culpable mental state
regarding the defendant's prior convictions.
Hoople's argument runs counter to our decisions in Bell v. State4, Ortberg
v. State5, and Noblit v. State6. All three of these cases dealt with situations in which an
offense was divided into degrees: one statutory provision defined the basic crime, while
another provision declared that a defendant was guilty of a higher degree of crime if they
committed the basic crime under specified aggravating circumstances.
(In Bell, the class A misdemeanor of promoting prostitution in the third
degree (inducing a person to engage in prostitution) was aggravated to a class B felony
because the victim was under the age of 16.7 In Ortberg, the class B misdemeanor of
fourth-degree criminal mischief (intentionally damaging someone else's property) was
aggravated to a class C felony because the property was worth $500 or more.8 And in
Noblit, the class B misdemeanor of hindering prosecution in the second degree (rendering
assistance to a criminal) was aggravated to a class C felony because the defendant
rendered assistance to a criminal who had committed a felony.9)
In all three of these cases, we held that a defendant could be convicted of
the higher degree of crime without proof that the defendant possessed any culpable
mental state regarding the aggravating circumstance that distinguished the higher degree
of crime from the basic crime. Bell and Noblit are arguably distinguishable from Hoople's
case because, in both Bell and Noblit, the legislative commentary to the statutes in
question expressly indicated that the legislature did not intend for the government to
prove any culpable mental state regarding the aggravating circumstance. But in Ortberg
(the case involving purposeful destruction of property), there was no such commentary.
This court simply relied on the doctrine that, when the defendant's basic underlying
conduct is criminal, no culpable mental state need be proved with respect to an
aggravating circumstance that raises the degree of the crime.
In fact, Hoople's argument is even less compelling than the argument in
Ortberg. This is because Hoople's basic crime - driving while intoxicated - does not
require proof of any culpable mental state regarding the circumstance that makes the
driving illegal (the fact that the driver was intoxicated or that the driver's blood-alcohol
content exceeded .10 percent). In Morgan v. Anchorage10 and Van Brunt v. State11, this
court rejected arguments that the crime of driving while intoxicated would violate the due
process clause unless it was interpreted to require proof of a culpable mental state
regarding the driver's intoxication. As we stated in Morgan,
It ... does not make sense to allow a [driver] to claim that his
intentional consumption of alcohol impaired his ability to
know that he was intoxicated. ... [A] person who drinks and
drives [must] be responsible for not drinking to the point
where he is under the influence[.] He should drive at his
[own] peril rather than only at the public's peril. We find no
due process violation [in defining the offense so as not to
require proof of any culpable mental state vis à vis the driver's
intoxication].12
Thus, Hoople's underlying crime does not
require proof that she acted with a culpable mental state
concerning the circumstance that made her driving criminal in
the first place (her intoxication or blood-alcohol content) .
This being true, it would make little sense to require proof that
Hoople acted with a culpable mental state concerning the
aggravating factor (her prior convictions) that raised her
offense to a felony.13
We also note that, although Hoople's argument
may be intriguing from a theoretical standpoint, it has little
practical effect. Under the due process clauses of the federal
and state constitutions, a person can not be validly convicted
of a crime unless they are personally present at their trial and
sentencing (or unless they knowingly and voluntarily waive
their right to be present).14 Because of this, if a person has
prior convictions for driving while intoxicated or refusing a
breath test, it is all but impossible for that person to commit
DWI without either recklessly or negligently disregarding
those prior convictions. This fact bolsters our conclusion that
Alaska's felony DWI statute passes constitutional muster even
though the government need not prove that the intoxicated
driver acted with a culpable mental state with regard to their
prior convictions.
For these reasons, we hold that Alaska's felony
DWI statute, AS 28.35.030(n), does not require proof that the
defendant acted with any culpable mental state regarding their
prior convictions. We further hold that AS 28.35.030(n)
(construed in this fashion) does not violate the due process
guarantees of the federal and state constitutions.
The judgement of the superior court is
AFFIRMED.
Footnotes
1 See AS 28.35.030(a)-(b).
2 See AS 28.35.030(o)(4), which defines "previously convicted" for purposes of establishing
felony DWI.
3 See the United States Constitution, Fourteenth Amendment, and the Alaska Constitution,
Article I, Section 7.
4 668 P.2d 829 (Alaska App. 1983).
5 751 P.2d 1368 (Alaska App. 1988).
6 808 P.2d 280 (Alaska App. 1991).
7 See AS 11.66.130(a)(2) and AS 11.66.110(a)(2).
8 See AS 11.46.486(a)(2) and AS 11.46.482(a)(1).
9 See AS 11.56.780(a) and AS 11.56.770(a).
10 643 P.2d 691, 692 (Alaska App. 1982).
11 646 P.2d 872, 873 (Alaska App. 1982).
12 643 P.2d at 692.
13 See State v. Goding, 489 A.2d 579, 580 (N.H. 1985) (holding that the enhancement of
driving while intoxicated from a violation to a misdemeanor, based on a prior conviction for the same
offense, did not add a mens rea element to the crime).
14 See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Snyder v.
Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Diaz v. United States, 223 U.S. 442,
32 S.Ct. 250, 56 L.Ed. 500 (1912).
-6- 1639
