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State v. Auliye (10/25/2002) ap-1838

State v. Auliye (10/25/2002) ap-1838

                             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


STATE OF ALASKA,              )
                              )              Court of Appeals No.
A-8084
                                             Petitioner,        )
Trial Court No. 2NO-01-427 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
CANDICE AULIYE,               )
                              )
                                             Respondent.        )
[No. 1838    October 25, 2002]
                              )


          Petition for Review from the District  Court,
          Second Judicial District, Nome, Ben J.  Esch,
          Judge.

          Appearances:   John  A.  Scukanec,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for  Petitioner.   Margi A.  Mock  and  Wally
          Tetlow,   Assistant  Public  Defenders,   and
          Barbara K. Brink, Public Defender, Anchorage,
          for Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.


          Candice Auliye is charged with violating AS 4.16.050(a)

consuming  or  possessing alcoholic beverages while younger  than

twenty-one  years.   Superior Court Judge Ben J.  Esch  concluded

that  the  potential  penalty for this  offense  is  sufficiently

severe that Auliye is entitled to a jury trial and to counsel  at

public  expense if she is unable to afford private counsel.   The

State has petitioned us to review this ruling.

          Any  person found guilty of violating AS 4.16.050  must

be  placed on probation until they are twenty-one years  old  (or

for one year, whichever is longer).  Although the legislature has

chosen  a familiar word to describe this penalty, it is different

from  the  probation  traditionally  imposed  under  Alaska  law.

Unlike  ordinary probation, neither the sentencing judge nor  the

defendant has any choice in the matter:  the judge is obliged  to

place  the defendant on this lengthy probation, and the defendant

has  no  right  to  refuse.   In other words,  the  probation  is

automatic.

          Moreover, AS 4.16.050 expressly provides that the terms

of  the  defendants  probation can include  custodial  in-patient

treatment and community work service.  Since the defendant has no

right  to  refuse the probation, the defendant must  comply  with

these  conditions,  and the court can enforce compliance  through

its contempt power.

          In  previous  cases,  we have held that  custodial  in-

patient  treatment and community work service are penalties  that

trigger  the right to trial by jury and the right to  counsel  at

public  expense.   We therefore conclude that the  penalties  for

violating AS 4.16.050 are sufficiently severe that a defendant is

entitled  to trial by jury and, if the defendant is indigent,  to

counsel at public expense.



The  history of AS 4.16.050 in its prior forms, and the
legislatures  initial  attempt to  de-criminalize  this
offense  that is, reduce the penalties to a level where
defendants would no longer have the right to  trial  by
jury  and, if indigent, the right to counsel at  public
expense


          Until  1995, violation of AS 4.16.050  was  a

class  A  misdemeanor.1   This  meant  that  defendants

between the ages of 18 and 21 (that is, youths who were

too  old to be treated under the juvenile system) faced

up   to  1  years  imprisonment  if  convicted.2    The

legislature discovered that, in practice, this  penalty

did  more to deter enforcement of the law than to deter

minors  from  violating the law.  Many law  enforcement

officers  were  reluctant  to  bring  criminal  charges

against a youth for conduct that was often viewed as  a

rite  of  passage,  especially  when  conviction  would

jeopardize  the  youths future military and  employment

opportunities.3

          At  the  same time, the legislature  received

complaints from parents of youths younger than 18  that

is,  youths  who were referred to the juvenile  justice

system  for  underage  drinking.   According  to  these

parents, juvenile authorities had their hands full with

more serious teenage crime, so the authorities gave low

priority to teenage drinking.  Offenders often received

no  greater  punishment  than a scolding  letter  which

arrived months after the offense.4

          In  1994  and 1995, the legislature tried  an

alternate approach.  Instead of relying on prison terms

to deter teenage drinking, the legislature attacked the

problem by requiring the Department of Public Safety to

administratively  revoke the  drivers  license  of  any

minor   (older  than  13)  who  consumed  or  possessed

alcoholic  beverages, regardless of whether the  minors

consumption  or possession of alcoholic  beverages  was

connected to the minors operation or control of a motor

vehicle.5    Having   adopted  this  license-revocation

approach, the legislature amended AS 4.16.050 to reduce

the  offense from a class A misdemeanor to a  violation

whose  sole penalty was a fine of not less than  $100.6

In  another  section  of  the  same  session  law,  the

          legislature amended the juvenile delinquency laws to

exempt  underage drinkers from juvenile  jurisdiction.7

That  is, all such offenders (no matter what their age)

would   be  prosecuted  in  district  court   and,   if

convicted,   they   would  face   only   a   fine   and

administrative  revocation  of  their  drivers  license

(rather  than  the institutionalization or  involuntary

placement   in   a  foster  home  that  were   possible

dispositions in a juvenile delinquency proceeding).8

          One  of  the perceived benefits of  this  new

approach was that the state would not have to spend  so

much  money to prosecute youths for underage  drinking.

The  legislature  anticipated that,  because  of  these

changes  in the penalty structure, youths charged  with

underage drinking would no longer be entitled to court-

appointed counsel or to trial by jury.

          In  a  pair of decisions issued in  1970  and

1971,  Baker  v. Fairbanks and Alexander v.  Anchorage,

the   Alaska  Supreme  Court  ruled  that  the   Alaska

Constitution guarantees defendants the right  to  trial

by  jury and (if indigent) the right to court-appointed

counsel  if  they  are  charged with  an  offense  that

carries  a  potential penalty of (1) imprisonment,  (2)

the loss of valuable license (e.g., a drivers license),

or (3) a fine so large as to connote criminality.9  And

in  R.L.R.  v.  State,  the  supreme  court  held  that

juvenile  offenders  facing similar  consequences  also

have the right to trial by jury.10

          As    just    explained,   the   legislatures

amendments  of  1994 and 1995 removed  the  offense  of

underage  drinking from the juvenile  delinquency  laws

and  reduced the punishment for this offense to a small

fine.    Although  youths  who  consumed  or  possessed

alcoholic  beverages would suffer revocation  of  their

drivers license, the revocation would be imposed by the

          Department of Public Safety in an administrative

proceeding,  not by the district court in a  sentencing

proceeding.   In  fact,  the license  revocation  could

occur  even  though the youth was never prosecuted  for

violating  AS 4.16.050.11  The legislature hoped  that,

with  this new penalty structure, the offense of  minor

consuming  would  not require a jury  trial  or  court-

appointed   counsel  under  the  Baker-Alexander-R.L.R.

test.

          But  in  State  v.  Niedermeyer,  the  Alaska

Supreme  Court  ruled  that the administrative  license

revocation  enacted  by  the legislature  was  in  fact

punitive  (because the statute required  revocation  of

the  minors  license even when there was no proof  that

the minors consumption or possession of alcohol had any

connection  to  the  operation of a  motor  vehicle).12

Because the license revocation was punitive, the  court

ruled,   the   State  could  not  impose  the   license

revocation  unless  it accorded  the  minor  [all]  the

safeguards of criminal process that normally  apply  to

criminal punishment.13

          Baker v. Fairbanks and Alexander v. Anchorage

hold that when a defendant faces the potential loss  of

a   drivers  license,  two  of  the  defendants   prime

procedural  safeguards are the right to trial  by  jury

and the right to counsel.  Thus, after Niedermeyer, the

State was obliged to give minors a jury trial, and give

indigent  minors court-appointed counsel, if the  State

wished to revoke a minors drivers license based on  the

minors   consumption   or   possession   of   alcoholic

beverages.



The   legislatures   response  to   Niedermeyer:    the
rewriting of AS 4.16.050


          After   the   supreme  courts   decision   in

          Niedermeyer, the legislature was faced with a choice.

          One  option  was to continue  the  policy  of

attempting  to deter teenage drinking by  revoking  the

drivers   licenses  of  all  minors  who  consumed   or

possessed alcoholic beverages.  To pursue this  policy,

the   legislature  would  simply  redraw  the   penalty

provisions  of  AS 4.16.050 so that license  revocation

was  again a direct punishment for this offense.   With

this  change  in  the statute, the  threat  of  license

revocation   would  remain  a  deterrent   to   teenage

drinking,  but  the legislature would have  to  abandon

their  other goal of prosecuting minors without  giving

them  the  protections  of trial  by  jury  and  court-

appointed counsel.

          The  legislature chose instead  to  pursue  a

modified  strategy.  They abandoned license  revocation

as  a  punishment  for first offenders  so  that  first

offenders  could be prosecuted without jury trials  and

without court-appointed defense counsel.

          The  amended version of AS 4.16.05014 creates

three  tiers  of  defendants:  first offenders,  repeat

offenders,  and  habitual offenders.   When  the  court

sentences a repeat or habitual offender, the court must

revoke the offenders drivers license and must order the

offender to perform a specified minimum number of hours

of  community  work  service  (i.e.,  forced  labor).15

    The  legislature  was  aware  that  both  of  these

penalties trigger a defendants rights to jury trial and

court-appointed counsel.

          (As  already  explained, the  Alaska  Supreme

Court held in Baker and Alexander that revocation of  a

drivers license is the type of penalty that triggers  a

defendants  rights  to jury trial  and  court-appointed

counsel.   And this Court held in Booth v.  State,  903

P.2d  1079, 1087-88 (Alaska App. 1995), that  community

          work service is also the type of penalty that triggers

these procedural rights.)

          But  the legislature still hoped to allow the

government to prosecute first offenders without  giving

them  a  jury  trial  or  court-appointed  counsel   by

keeping the penalty for a first offense small enough to

escape  Baker, Alexander, and Booth.  The problem  with

this strategy is that, under the Alaska Constitution, a

person  can  not  be  subjected to  increased  criminal

penalties  as  a  repeat  offender  unless  they   were

accorded  the right to counsel in the proceedings  that

led  to their prior conviction.  Pananen v. State,  711

P.2d 528, 531-32 (Alaska App. 1985).

          Thus,  the legislature was apparently  caught

between Scylla and Charybdis:  If they made the penalty

for  a  first offense too severe, first offenders would

be  entitled  to  a  jury trial and to  court-appointed

counsel.   Yet  if they enacted a small penalty  for  a

first  offense, so that first offenders could be  tried

and  convicted without a jury trial and without  court-

appointed  defense  counsel, the  resulting  conviction

could  not be used later to establish the youths status

as a repeat or habitual offender.

          The  drafters  of  AS 4.16.050  attempted  to

solve  this problem by creating a new kind of  criminal

penalty.   Under  the current version of  the  statute,

minors  convicted for the first time  of  consuming  or

possessing alcoholic beverages still face a small  fine

(not  less than $200 and not more than $600).  But,  in

addition,  they face a new penalty that the legislature

labeled probation.



The nature of the probation authorized by AS 4.16.050


          AS   4.16.050(e)  declares  that  all  youths

(including  first  offenders)  who  are  sentenced  for

consuming  or  possessing alcoholic beverages  must  be

placed on probation until they are twenty-one years old

(or  for  one year, whichever is longer).  The  statute

declares  that  the  convicted  youth  may  not  refuse

probation.

          As  part  of  this probation, the  court  may

require  the  [offender] to pay for  and  enroll  in  a

juvenile  alcohol  safety action  program,  if  one  is

available.    Moreover,   the  sentencing   judge   can

authorize  the  officials of the alcohol safety  action

program  to  require the youth to submit to  in-patient

(i.e.,  residential) treatment, so long as the judgment

specifies  the  maximum period of  inpatient  treatment

authorized.16   In  addition  to  the  possibility   of

enforced residential treatment, subsection (e) requires

the sentencing judge to impose the following conditions

of probation:


     (1)   the  person  shall  pay  for   and
successfully   complete  any   education   or
treatment recommended;

     (2) the person may not consume inhalants
or  possess  or consume controlled substances
or   alcoholic   beverages,   except   [those
provided by a parent, guardian, or spouse off
licensed  premises,  or as  part  of  medical
treatment];

     (3) the person shall timely complete any
community work ordered, as provided in (f) of
this section; and

     (4) other conditions the court considers
appropriate.

          There   is  one  other  alternative

available  to  the sentencing  judge.   Under

subsection (b)(1) of the statute, a judge can

grant a first offender a suspended imposition

of  sentence  as  provided in  AS  12.55.085.

          However, any youth who receives a suspended

imposition  of  sentence  must  likewise   be

placed on probation until they are twenty-one

years  old  (or  for one year,  whichever  is

longer).17

          Under AS 12.55.085, any person  who

receives  a suspended imposition of  sentence

is  released to the charge and supervision of

[a]  probation officer, under the  terms  and

conditions  that the court determines.18   In

addition,  AS  4.16.050(b)(1) specifies  that

the   youths   SIS  probation   can   include

treatment  and community work  in  an  amount

determined  by  a  community diversion  panel

(which  the statute defines as a youth  court

or other group selected by the court to serve

as a sentencing option).19

          Thus,   whether  a  first  offender

receives  a  normal sentence or  a  suspended

imposition of sentence, they must  be  placed

on  probation until they are twenty-one years

old.   And,  because they are  on  probation,

they  can  be ordered to submit to  custodial

in-patient   treatment   (i.e.,   residential

treatment which includes constraints  on  the

patients    liberty   equivalent    to    the

constraints of incarceration), and  they  can

also  be  ordered to perform  community  work

service.

          Under  Alaska law, a person  facing

either  of  these penalties has  a  right  to

trial  by  jury and (if indigent) a right  to

defense  counsel  at  public  expense.   This

Court  has ruled that [c]ustodial confinement

in a residential alcohol treatment program is

          the functional equivalent of jail time and

therefore    constitutes   a   sentence    of

imprisonment.20   Thus, a  person  who  faces

custodial in-patient alcohol treatment  as  a

penalty for an offense is entitled to a  jury

trial   and   to   court-appointed   counsel.

Likewise, this Court held in Booth  v.  State

that  a  person  facing  the  possibility  of

community work service is entitled  to  these

same procedural rights.21

          In addition to custodial in-patient

treatment  and community work service,  first

offenders can be ordered to submit  to  [any]

other  conditions  [of probation]  the  court

considers  appropriate.22   This  clause   is

potentially quite expansive.  For example, to

pursue the aim of rehabilitating a youth  who

has    consumed   alcoholic   beverages,    a

sentencing  judge might require  a  youth  to

obey  a  curfew, or remain enrolled in school

past  the legally mandated age of 16, or find

after-school  employment.   The  judge  might

also  forbid the youth from associating  with

friends  who  the judge believes  are  a  bad

influence.

          Perhaps   most   significant,   the

youths   probation  status  would  give   the

sentencing    judge   the   opportunity    to

effectively revoke the youths drivers license

the  very  penalty  that,  according  to  the

supreme  courts decision in Niedermeyer,  can

not be imposed unless a defendant is afforded

the  right to trial by jury and the right  to

court-appointed counsel.

          In Baum v. State, 24 P.3d 577, 581-

          82 (Alaska App. 2001), this Court ruled that

a  sentencing judge can impose a condition of

probation   that  requires  a  defendant   to

refrain  from engaging in a licensed activity

for  a  longer  period  than  the  amount  of

license  suspension or revocation that  could

be  imposed  on  the defendant  as  a  direct

component   of   the   defendants   sentence.

Indeed,  the Alaska Supreme Court  has  ruled

that  a  sentencing judge can, as a condition

of probation, impose a penalty that the judge

could not impose as a direct component of the

defendants sentence.  See Brown v. State, 559

P.2d 107, 109-110 (Alaska 1977) (holding that

a judge can order a probationer to pay a fine

even  when the applicable sentencing  statute

does not authorize imposition of a fine as  a

direct component of the defendants sentence).

          It  is  therefore at least arguable

that,  as  a  condition of a first  offenders

probation,  a  judge could forbid  the  youth

from operating a motor vehicle until the  end

of  their probation  i.e., until they  turned

twenty-one.



Why  the  probation authorized by AS  4.16.050  differs
from  normal  probation, and why we hold that  a  youth
charged  with  violating AS 4.16.050 is entitled  to  a
jury trial and, if indigent, to court-appointed defense
counsel


          Normally,  probation is a  counterpart  to  a

suspended  or partially suspended sentence.   It  is  a

contract  between  the court and  the  defendant:   the

defendant  consents to be supervised and to live  under

the conditions imposed by the court in exchange for the

courts   agreement   to  suspend  imposition   of   the

defendants sentence or to suspend execution of a prison

term and/or a fine.23  Because probation is a contract,

and  because this contract allows a judge to control  a

defendants  life  in ways that the defendant  may  deem

more  burdensome  than  normal  criminal  penalties,  a

defendant is free to refuse probation and to insist  on

a normal sentence.24

          But  the probation mandated by AS 4.16.050(e)

is  not  a contract.  It has no relationship to whether

any  portion  of the defendants sentence is  suspended.

Nor  is  this  probation  the  result  of  a  voluntary

agreement   between  the  sentencing  judge   and   the

offender.    The  sentencing  judge  must   place   the

defendant  on probation until the defendant is  twenty-

one  years old, and the defendant has no discretion  to

refuse.

          In  other  words,  this probation  is  unlike

normal  probation because it is automatic.  And because

all   first   offenders  automatically   receive   this

probation,  a  sentencing judge automatically  has  the

authority  to  order  a  first offender  to  submit  to

custodial  in-patient treatment, to engage in community

work service, and perhaps to surrender the privilege to

operate motor vehicles  all penalties that trigger  the

defendants  right to trial by jury and  the  defendants

right to court-appointed counsel if indigent.

          Seven  centuries ago, the English philosopher

William  of  Occam described a philosophical  principle

that  is still employed to good effect today:  the best

          explanation of a condition or phenomenon is the one

that  is  the  simplest, i.e., the one  that  uses  the

fewest  assumptions or hypotheses to adequately explain

what  is  observed.  This principle,  known  as  Occams

razor25,  is  used to pare away extraneous  labels  and

concepts,  thus  allowing the unadorned  truth  of  the

matter to be seen.  We now use Occams razor on the case

before us.

          All youths convicted of violating AS 4.16.050

for   the  first  time  are  automatically  placed   on

probation.   As  a  consequence,  in  all  such  cases,

sentencing judges are empowered to impose penalties  on

these  youths that are sufficiently severe  to  trigger

the  rights to jury trial and court-appointed  counsel.

Using  Occams  razor, we strip away  the  reference  to

probation, and what is left is the unadorned truth:  In

all  cases,  first offenders convicted of violating  AS

4.16.050  can  be  punished  with  penalties  that  are

sufficiently severe to trigger the rights to jury trial

and court-appointed counsel.

          The statute does not oblige sentencing judges

to impose these penalties on a first offender.  But, as

we  held  in  Booth v. State, it is the possibility  of

these penalties that triggers the defendants procedural

rights.26

          We  therefore hold that all youths (including

first  offenders)  who are charged  with  violating  AS

4.16.050 are entitled to trial by jury and, if they are

indigent, to counsel at public expense.

The States alternative construction of AS 4.16.050, and
why we reject it


          In  its  arguments to this Court,  the  State

acknowledges  that  penalties such  as  community  work

service and custodial in-patient treatment trigger  the

right  to  jury  trial and the right to court-appointed

          counsel.  But the State suggests that AS 4.16.050 does

not   authorize  sentencing  judges  to   force   first

offenders  to  engage  in  community  work  service  or

custodial  in-patient treatment.   This  suggestion  is

based  on the States unusual interpretation of what  AS

4.16.050(e) means by probation.

          The   State   concedes  that  the   probation

described   in  AS  4.16.050(e)  is  not  like   normal

probation,  for there is no suspended sentence  hanging

over the defendant.  But the State takes this fact  and

gives it an unexpected twist:

          Because   the  statute  requires   sentencing

judges  to  place  first offenders  on  probation  even

though,  in  most  cases, there will  be  no  suspended

sentence  to  impose  in the event that  the  defendant

fails  to  honor  the  terms of  probation,  the  State

suggests that the legislature must not have intended to

force  defendants  to comply with the  terms  of  their

probation.   Instead, the State argues, the legislature

crafted  AS  4.16.050(e)  with  the  expectation   that

defendants  would  be free to disregard  the  terms  of

their   probation.   The  only  real  purpose  of   the

probation, according to the State, is to establish  the

defendants status as a second offender if the defendant

is ever convicted again.

          We  find  the  States suggestion far-fetched.

We  can  think of few things that would be more certain

to  undermine  respect for the law than  to  require  a

sentencing  judge  to  impose conditions  of  probation

that, by design, can never be enforced.  AS 4.16.050(e)

requires  judges  to  place  all  first  offenders   on

probation,   and   the  statute  also   specifies   the

conditions  of probation that a judge must impose.   It

seems   improbable  (to  say  the   least)   that   the

legislature would require sentencing judges  to  engage

in  the charade of ordering youths to comply with terms

of probation if the legislature intended these terms of

probation to be unenforceable.



The States request that we strike all provisions of the
statute  that  allow a sentencing judge  to  require  a
first  offender to submit to in-patient  treatment,  to
engage  in community work service, or to give up  their
right to drive


          At  oral  argument,  the State  suggested  an

alternative way to resolve this case:  to strike  those

portions  of AS 4.16.050(e) that authorize a sentencing

judge   to   impose  custodial  in-patient   treatment,

community work service, or any other penalty that would

trigger  the  rights to jury trial and  court-appointed

counsel.  We reject this suggestion for two reasons.

          First,  striking  these  provisions  of   the

statute would leave little of the legislatures intended

result.   The  legislature clearly  wanted  to  subject

underage drinkers to rehabilitative efforts that  might

include  custodial  in-patient  treatment.   They  also

intended  to  punish  and deter  underage  drinkers  by

making  them  perform  community  work  service.    The

importance  of these two sentencing goals  is  apparent

from  the  fact that in-patient treatment and community

work   service   are   listed  separately   among   the

permissible  terms of probation in AS  4.16.050(e)  and

(g).

          Second,  even  if  we  followed  the   States

suggestion  and  struck the provisions of  the  statute

that  authorize a sentencing judge to impose  custodial

in-patient  treatment and community  work  service  for

first offenders, so that first offenders could be tried

and convicted without a jury trial and without counsel,

a  major  constitutional problem  would  remain.   This

problem   would  surface  if  the  offender  was   ever

prosecuted again under AS 4.16.050.

          As  explained  above, we held in  Pananen  v.

State  that a person can not be subjected to  increased

criminal  penalties  as a repeat offender  unless  they

were  accorded the right to counsel in the  proceedings

that  led to their prior conviction.27  If we  were  to

strike   the   major  penalty  provisions   for   first

offenders,  so  that  first offenders  could  be  tried

without   counsel,  Pananen  says  that  the  resulting

conviction could not be used to establish the offenders

status   as   a   repeat  offender  in   a   subsequent

prosecution.  Thus, the States suggestion would  defeat

the  legislatures  scheme  of increased  penalties  for

repeat  and  habitual  offenders (as  these  terms  are

defined in subsections (c) and (d) of AS 4.16.050).



Conclusion


          The   decision  of  the  district  court   is

AFFIRMED.  Auliye is entitled to a jury trial  and,  if

she is indigent, to court-appointed counsel.



_______________________________
1  See AS 4.16.050 & AS 4.16.180 as enacted in SLA 1980, ch.
131,  3, and as amended by SLA 1983, ch. 109,  8.

2 See AS 12.55.135(a).

3  See Minutes of the Senate Finance Committee for March 22,
1995, Minutes of the House Judiciary Committee for April 21,
1995, and Minutes of the House Finance Committee for May  3,
1995, all discussing SB 46.

4  See Minutes of the Senate Finance Committee for March 22,
1995, discussing SB 46.

5 See AS 28.15.183184 (as enacted in SLA 1994, ch. 71,  1).

6 See SLA 1995, ch. 81,  1.

7 See former AS 47.10.010(b)(5) (as enacted in SLA 1995, ch.
81,  5), now recodified as AS 47.12.030(b)(5).

8   See  former  AS  47.10.080(b),  now  recodified  as   AS
47.12.120(b).

9  Alexander v. Anchorage, 490 P.2d 910, 913 (Alaska  1971);
Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).

10   487 P.2d 27, 31-33 (Alaska 1971).

11    This  aspect of AS 28.15.183 was changed in 1999;  see
SLA  1999,  ch.  88,  5.  Under the current version  of  the
statute   specifically, under subsection (i)(2)  the  minors
drivers license must be restored if the government does  not
prosecute  the  minor for consuming or possessing  alcoholic
beverages, or if the charge is dismissed, or if the minor is
acquitted at trial.

12   14 P.3d 264, 269-271 (Alaska 2000).

13   Id. at 272.

14   Enacted in SLA 2001, ch. 65,  1 and 2.

15    See  AS 4.16.050(c) (repeat offenders) and 4.16.050(d)
(habitual offenders).

16   AS 4.16.050(g).

17AS 4.16.050(b)(1).

18See AS 12.55.085(a).

19AS 4.16.050(b)(1).

20Dodge v. Anchorage, 877 P.2d 270, 272 (Alaska App. 1994)
(citing Lock v. State, 609 P.2d 539 (Alaska 1980)); cf.
Hester  v. State, 777 P.2d 217, 219 (Alaska App.  1989)
(the addition of thirty days in-patient treatment as  a
condition  of the defendants probation, when  custodial
treatment  was not specified in the original judgement,
constituted  an  illegal  increase  in  the  defendants
sentence   when   the   in-patient  treatment   program
subjected  the  defendant to restraints  equivalent  to
custody).

21Booth, 903 P.2d at 1087-88.

22AS 4.16.050(e)(4).

23    Alvin  v. State, 42 P.3d 1156, 1159-1160 (Alaska  App.
2002);  Joubert v. State, 926 P.2d 1191, 1193  (Alaska  App.
1996)  (quoting McRae v. State, 909 P.2d 1079, 1083  (Alaska
App. 1996)).

24    See  Brown  v. State, 559 P.2d 107, 111  n.13  (Alaska
1977); Bland v. State, 846 P.2d 815, 818 (Alaska App. 1993);
Alfred v. State, 758 P.2d 130, 131 (Alaska App. 1988).

25    See  Websters New World Dictionary of American English
(Third College Edition, 1988), p. 937.

26   See Booth, 903 P.2d at 1088.

27   711 P.2d 528, 531-32 (Alaska App. 1985).