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Ault v. State (7/18/2003) ap-1888
Ault v. State (7/18/2003) ap-1888
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
MICHAEL D. AULT, )
) Court of Appeals No. A-
8371
Appellant, ) Trial
Court No. 4FA-02-475 CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
CLARA MCDONALD, )
) Court of Appeals No. A-
8409
Appellant, )
Trial Court No. 4FA-02-1305 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1888 - July 18, 2003]
)
Appeal from the District Court, Fourth Judi
cial District, Fairbanks, Joseph W. Miller,
Magistrate.
Appearances: Robert B. Downes, Downes,
MacDonald & Levengood, Fairbanks, for
Appellants. Jason Gazewood, Assistant
District Attorney, Teresa Foster, District
Attorney, Fairbanks, and Barbara J. Ritchie,
Acting Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge
Michael D. Ault and Clara McDonald were each convicted
of misdemeanor driving under the influence of an alcoholic
beverage (DUI).1 Each had prior DUI convictions, so they were
subject to the mandatory minimum sentencing provisions of AS
28.35.030(b). The district court found that under AS 28.35.030,
as amended in 2001, it had to take into account all the
appellants prior DUI convictions, even those that had occurred
more than ten years prior to the appellants current offenses.
Ault and McDonald appeal, claiming that the district court erred
when it considered all their prior DUI convictions. Based on the
legislative history of the 2001 amendment, we agree with the
district court.
Facts and discussion
Ault was arrested for DUI on February 16, 2002. On May
22, 2002, he pleaded no contest to one count of misdemeanor DUI.
His only prior conviction for DUI was in 1984. Magistrate Joseph
W. Miller sentenced Ault to the mandatory minimum term for a
second-time DUI offender. On appeal, Ault claims that he should
have been considered a first-time DUI offender.
McDonald was arrested for DUI on April 30, 2002. On
July 3, 2002, she pleaded no contest to this charge. She had
prior DUI convictions in 2000, 1982, and 1981. Magistrate Miller
sentenced her as a fourth-time DUI offender. On appeal, she
claims that she should have been considered a second-time DUI
offender.
The appellants claim that when the legislature amended
AS 28.35.030 in 2001, it did not intend courts to count DUI
offenses that were more than ten years old in determining
mandatory minimum DUI sentences. But the legislative history of
the 2001 amendment does not support the appellants position; in
fact, the history demonstrates that the legislature intended
mandatory minimum DUI sentences to be based on all of a
defendants prior DUI convictions.
The former version of AS 28.35.030 had two look back
periods: one was five years,2 and the other was ten.3 The five-
year look back was used to determine whether a defendant was
guilty of a felony under this look back, a person who was
convicted of DUI and had been previously convicted two or more
times within the five years preceding the date of the present
offense was guilty of a class C felony.4
The ten-year look back was used to define previously
convicted.5 Under former AS 28.35.030, previously convicted
meant having been convicted of [driving under the influence,
refusal to submit to a chemical test, or operating a commercial
vehicle while intoxicated] in this or another jurisdiction,
within 10 years preceding the date of the present offense.6 This
ten-year look back was used to determine mandatory minimum
sentences for both misdemeanor and felony DUI convictions.7
Under this definition, any DUI conviction that occurred more than
ten years before a defendants present offense was not considered
when determining mandatory minimum misdemeanor or felony DUI
sentences.
Alaskas drunk driving laws, however, were significantly
revised in 2001. During the 2001 session, Representative Norman
Rokeberg sponsored House Bill 4. Among other things, the
legislation amended the name of the offense to driving under the
influence rather than driving while intoxicated, reduced the
legal limit for the statutory breath alcohol content from .10 to
.08 percent, expanded the felony look back period from five years
to ten, and redefined previously convicted by removing the
language that limited consideration of previous convictions to
the prior ten years.
Addressing the proposed changes to the two look back
periods, Representative Rokeberg said that the bill phased in a
ten-year look back period to determine if a person was guilty of
a felony, replacing the then-current five-year look back period.
He said that the bill drafters had initially considered repealing
both look back periods but had rejected that idea because the
fiscal notes went right through the roof.8 That is, it would be
too expensive for the state to treat all third-time DUI offenders
as felons.
In addition, Representative Rokeberg told the House
Transportation Committee that House Bill 4 was based on
recommendations made by the Municipality of Anchorages DUI
Prevention Task Force.9 He reaffirmed this statement two months
later when he told the Senate Judiciary Committee that House Bill
4 was the result of the Task Forces recommendations.10
The Municipality of Anchorage DUI Task Force Final
Report called for making all third and subsequent DUIs felonies
by eliminating look back provisions.11 In the reports discussion
section, the Task Force said:
This recommendation emphasizes the increased
focus on repeat offenders. Present state law
(AS 28.35.030) provides for five-year and ten-
year parameters that exclude consideration of
prior offenses when considering charges and
sentencing for drunken driving convictions.
The consensus of the Task Force is that the
elimination of the previous convictions is
not in the public interest. Repeat offenders
should be held to a level of lifelong
accountability.[12]
Additionally, in a later section of the Task Forces final report,
the Current Laws subcommittee repeated the recommendation that
the State [a]bandon [the] 10 years framework regarding previous
convictions13 and that [a]ll third and subsequent lifetime [DUIs]
be felonies.14
The view that the 2001 amendments to the DUI laws would
bring life-long accountability for DUI convictions was emphasized
by at least one witness who addressed the fiscal costs involved
in imposing a life-long look back. In March 2001 the Department
of Correctionss Program Coordinator/Legislative Liaison, when
explaining the fiscal impact of House Bill 4s life-long look
back, said that:
Under [the] current statute, a person
who commits a second offense within ten years
is considered a second-time offender, but if
that persons first offense had occurred
further back than ten years, he [or] she is
treated as a first-time offender. Section 32
would remove that ten-year look-back; thus
all second offenses would be treated as such,
regardless of how long ago they occurred.[15]
The fact that the amended statute would create a life-
long look back was also made clear when the senate addressed this
new legislation. During Senate Judiciary Committee discussion of
House Bill 4, Committee Chairman Robin Taylor asked whether
removing the ten year language from AS 28.35.030(o)(4) meant that
the look back period would apply forever.16 Assistant Attorney
General Dean Guaneli confirmed that the proposed bill would
remove this ten-year period, thus making defendants responsible
for all their prior DUI convictions.17
Based on this history, we conclude that when the
legislature amended AS 28.35.030 in 2001, it intended to expand
the five-year look back used to determine felony offenses, and to
completely repeal the ten-year look back used to define prior
convictions. By removing the ten-year period from the definition
of previous conviction, the legislature created a life-long look
back for DUI sentencing purposes.
Our conclusion is supported by the fact that had the
legislature not redefined prior conviction to extend back beyond
ten years, a significant section of the current statute would be
superfluous or meaningless.18 Currently, AS 28.35.030 provides
misdemeanor penalties for first-, second-, third-, fourth-, and
more than fourth-time DUI offenders.19 But, under the
interpretation urged by Ault and McDonald, there could not be
third-, fourth-, or more than fourth-time misdemeanor
convictions. If both the misdemeanor and the felony sentencing
relied on the same ten-year look back, all third-time DUI
offenders within this look back would be chargeable as felons.
As written, the current misdemeanor sentencing provisions are
meaningful only if courts are supposed to take into account all
of a defendants prior DUI convictions. By repealing the ten-year
period from the definition of prior convictions, the legislature
ensured that the statutes misdemeanor and felony sentencing
sections were consistent with each other.
Appellants also claim that because the legislative
history demonstrates that even the [legislators] were unsure of
the effect that was made by [the] change in the law, this change
should be strictly construed in their favor. However, the
legislative history shows that the legislature was fully aware
that the amended statute would create a life-long look back for
DUI sentencing purposes.
Accordingly, Magistrate Miller correctly took into
account all of Aults and McDonalds prior DUI convictions when
sentencing each of them to their mandatory minimum terms of
incarceration. Ault was a second-time DUI offender, and McDonald
was a fourth-time DUI offender.
Conclusion
The decisions of the district court are AFFIRMED.
_______________________________
1 AS 28.35.030.
2 Former AS 28.35.030(n) (2000).
3 Former AS 28.35.030(o)(4) (2000).
4 Former AS 28.35.030(n) (2000).
5 Former AS 28.35.030(o)(4) (2000).
6 Id.
7 Former AS 28.35.030(b)(1) and (n)(1) (2000).
8 See Committee Minutes, House Transportation Standing
Committee (February 22, 2001).
9 Id.
10 See Committee Minutes, Senate Judiciary Committee (May
5, 2001).
11 Final Report of the DUI Prevention Task Force,
Municipality of Anchorage, at 5 (October 30, 2000).
12 Id. at 8 (emphasis added).
13 Id. at 37.
14 Id.
15 Committee Minutes, House Judiciary Committee (March
16, 2001) (testimony of Candace Brower) (emphasis added).
16 See Committee Minutes, Senate Judiciary Committee (May
5, 2001).
17 See id.
18 See 2A Norman J. Singer, Sutherland Statutory
Construction 46.06, at 181-90 (6th ed. 2000) (A statute should
be construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void, or
insignificant, and so that one section will not destroy another
unless the provision is the result of obvious mistake or error.).
19 AS 28.35.030(b)(1)(A)-(F).
