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Dunn v. Municipality of Anchorage (11/05/2004) ap-1953
Dunn v. Municipality of Anchorage (11/05/2004) ap-1953
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KIM W. DUNN, )
) Court of Appeals No.
A-8677
Appellant, ) Trial
Court No. 3AN-02-3076 CR
)
v. )
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O
N
)
Appellee. )
[No. 1953 - November 5, 2004]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Gregory J. Motyka
and James N. Wanamaker, Judges.
Appearances: John Marston Richard, Gorton &
Logue, Anchorage, for Appellant. John E.
McConnaughy III, Assistant Municipal
Prosecutor, and Frederick H. Boness,
Municipal Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Kim W. Dunn pleaded no contest to driving under the
influence and was sentenced to 140 days to serve. (His mandatory
minimum sentence was 120 days.) Dunn argues that his rights to
due process and equal protection were violated because AS
28.35.030(b) and (r)(4), which define the penalties for
misdemeanor driving while under the influence, required the
district court to consider all his previous convictions, not just
convictions obtained during the past ten years, in calculating
his mandatory minimum sentence for that offense.
For the reasons discussed below, we affirm Dunns
sentence.
Facts and proceedings
On April 13, 2002, Dunn was arrested for driving under
the influence after his pick-up truck hit two parked cars in the
parking lot of the Chilkoot Charlies bar in Anchorage. Dunn took
a breath test, which revealed a breath alcohol level of .152
percent. Dunn was charged under the Anchorage Municipal Code
with driving under the influence.1 He ultimately pleaded no
contest to that charge. Because he had three previous convictions
for drunk driving offenses two in 1990 and one in 1993 he
faced a mandatory minimum sentence of 120 days to serve.2
Dunn filed a motion to preclude the district court from
counting his 1990 convictions in determining his mandatory
minimum sentence. Dunn challenged the constitutional validity of
those prior convictions, arguing that his right to an independent
chemical test had not been fully honored in those earlier cases.
But Dunns primary challenge was to a 2001 amendment to the
municipalitys drunk driving law. Before that amendment, a
motorist convicted of driving while intoxicated (DWI) faced
increasingly severe mandatory minimum sentences based on the
number of drunk driving offenses the motorist had committed
within the previous ten years.3 In 2001, the Anchorage Assembly,
mirroring changes in state law, eliminated this ten-year look-
back and required sentencing courts to count all a motorists
prior DWI convictions in calculating the motorists mandatory
minimum sentence including convictions more than ten years old.4
Dunn argued that eliminating this ten-year look-back limitation
violated his rights to due process and equal protection of the
laws, and that the district court was thus required to disregard
his two 1990 convictions in calculating his minimum sentence.
On appeal, Dunn challenges the states drunk driving
law. As Dunn acknowledged in his briefing below, he was not
convicted or sentenced under state law. Rather, he was convicted
of violating the parallel municipal ordinance, Anchorage
Municipal Code 9.28.020. However, we have addressed Dunns claims
because for relevant purposes the state and municipal law appear
to be the same.5
District Court Judge Gregory J. Motyka denied Dunns
challenge to his prior drunk driving convictions (together with
similar claims raised in eighteen other cases). Judge Motyka
ruled that Dunn and the other defendants could not collaterally
attack the constitutionality of their prior convictions in their
current cases. Although Judge Motyka noted that the defendants
had also raised due process and equal protection challenges to
the current driving while intoxicated statute, he did not resolve
those constitutional claims.
The defendants filed a joint motion for
reconsideration, asking Judge Motyka to reconsider his decision
that they were barred from collaterally attacking their prior
convictions at or before sentencing in their current cases. But
the defendants did not press Judge Motyka for a ruling on their
constitutional challenges to the legislatures or assemblys
decision to eliminate the ten-year look-back.
Judge Motyka denied the motion for reconsideration.
Following that decision, Dunn pleaded no contest to driving under
the influence.
Dunn appeals his sentence.
Discussion
Dunns constitutional claims were not preserved
On appeal, Dunn claims that AS 28.35.030(r)(4) violates
due process by directing courts to consider convictions more than
ten years old in calculating the minimum sentence for a drunk
driving offense. Dunn argues that the legislature did not have a
compelling interest to eliminate the ten-year look-back
limitation because tougher penalties for drunk driving over the
past several decades had not succeeded in reducing traffic
fatalities. He also argues that the current drunk driving
statute violates equal protection because it treats offenders
with prior convictions that are more than ten years old the same
as offenders with more recent convictions.
These are not the same arguments Dunn advanced in the
district court. Although Dunn claimed below that a life-long
look-back violated due process, he did not argue that eliminating
the ten-year look-back failed to advance the states interest in
reducing traffic fatalities; nor did he present evidence on the
rate of traffic fatalities in Alaska. Instead, Dunn argued that
the life-long look-back violated due process because it did not
give courts discretion to find manifest injustice and step
outside the so-called mandatory minimums.
Dunns equal protection claim has also changed on
appeal. In district court, he did not argue that the legislature
needed a compelling interest to justify eliminating the ten-year
look-back for prior drunk driving convictions. Rather, he argued
that there was no rational basis for classifying persons with
convictions more than ten years old the same as those with more
recent convictions.
Furthermore, it appears that Dunn never obtained a
ruling from the district court on these constitutional
challenges. But even assuming that Dunn preserved the claims he
raises on appeal, we conclude that he has not shown that the
legislature violated the constitution by eliminating the ten-year
limitation in former AS 28.35.030(o)(4).
Why we conclude that Dunns constitutional claims fail
Dunn argues that the legislature infringed on his
fundamental right to liberty by eliminating the ten-year look-
back limitation, and that this amendment to the states drunk
driving law violated due process because it lacked a close and
substantial relationship to the legislatures stated goal of
reducing traffic fatalities.
As Dunn implicitly conceded in his briefing below, this
is the wrong test. [A] person who stands to be sentenced upon
conviction of a crime has no fundamental right to liberty. In
such cases, the individual interest affected ... is the
relatively narrow interest of a convicted offender in minimizing
the punishment for an offense.6 When a legislative enactment
does not infringe on a fundamental right, the enactment violates
substantive due process only if it has no reasonable relationship
to a legitimate government purpose.7 As the Alaska Supreme Court
has explained:
It is not a courts role to decide whether a
particular statute or ordinance is a wise
one; the choice between competing notions of
public policy is to be made by elected
representatives of the people. The
constitutional guarantee of substantive due
process assures only that a legislative bodys
decision is not arbitrary but instead based
upon some rational
policy.
A courts inquiry into arbitrariness
begins with the presumption that the action
of the legislature is proper. The party
claiming a denial of substantive due process
has the burden of demonstrating that no
rational basis for the challenged legislation
exists. This burden is a heavy one, for if
any conceivable legitimate public policy for
the enactment is apparent on its face or is
offered by those defending the enactment, the
opponents of the measure must disprove the
factual basis for such a justification.[8]
Dunn asserts that the states goal in eliminating the
ten-year look-back limitation was reducing traffic fatalities.
As the Municipality points out, Dunn bases this assertion on
findings and intent that were not adopted until several months
after his offense.9 But even if we assume that these findings
accurately reflect the legislatures earlier intent, Dunn has not
shown that the legislatures action had no reasonable basis. Dunn
cites statistics showing no appreciable decrease over the past
several decades in the total number of alcohol-related traffic
fatalities in Alaska, despite increasingly severe penalties for
drunk driving during that period. But, as the Municipality
points out, these statistics prove little. Dunn has not taken
into account increases in population or vehicle miles traveled in
the state; the Municipality points to National Highway Traffic
Safety Administration statistics showing a 51 percent drop
(measured in terms of vehicle miles traveled) in alcohol-related
traffic fatalities in Alaska between 1982 and 2001. Furthermore,
the findings and intent relied on by Dunn indicate that the
legislatures goal was reducing alcohol-related traffic accidents
and alcohol-related fatalities. Dunn provided no statistics on
alcohol-related traffic accidents.
A number of rational inferences can be made linking a
drivers higher number of lifetime drunk driving convictions with
the drivers increased risk of causing traffic accidents and
fatalities. A motorist who has disregarded the law and driven
while intoxicated in the past might be more likely to do so in
the future. In addition, the legislature could have concluded
that offenders with repeated convictions, including those whose
convictions reach over more than a decade, might be particularly
resistant to rehabilitative and deterrent efforts, such that
public safety is best served by isolating those offenders for a
substantial period of time. Because Dunn has not refuted these
rational bases for eliminating the ten-year look-back, we reject
his due process claim.
Dunn also argues that classifying an offender with
convictions that are more than ten years old the same as an
offender with convictions that are less than ten years old
violates the equal protection clauses of the federal and state
constitutions.10 Dunn appears to be arguing that this
classification is over-inclusive that is, that offenders with
convictions more than ten years old are not similarly situated
with (and thus must be sentenced more leniently than) offenders
with more recent convictions.11
But Dunn was sentenced more leniently based on the age
of his convictions. If two of Dunns three prior convictions had
been obtained after 1996, he would have been guilty of a felony
and subject to a mandatory minimum sentence of 240 days to serve.12
Because his convictions were earlier than that two in 1990 and
one in 1993 he was guilty of a misdemeanor and subject to a
minimum sentence of only 120 days to serve.13 Only a motorist
with one previous DWI conviction faces the same minimum sentence
20 days to serve regardless of the date of that prior
conviction.14 Dunn has not addressed this means of classifying
groups for sentencing purposes, much less shown that this
classification has no fair and substantial relation to the
legitimate governmental objective of reducing traffic accidents
and fatalities.15
To the extent that Dunn is arguing that his equal
protection rights were violated because he was not treated more
leniently than other misdemeanor defendants with more recent
prior convictions, his claim has no merit. Under Alaskas three-
part, sliding scale equal protection analysis, there are three
factors this court must balance in resolving Dunns claim: the
significance of the individual right purportedly infringed, the
importance of the regulatory interest asserted by the state, and
the closeness of the fit between the challenged statute and the
states asserted regulatory interest.16
As we have previously noted, the interest affected here
is the relatively narrow interest of a convicted offender in
minimizing the punishment for an offense.17 The government, by
contrast, has a strong and direct interest in establishing
penalties for criminal offenders and in determining how those
penalties should be applied to various classes of convicted
felons.18 Dunn asserts that the legislature is constitutionally
bound to treat drunk driving offenders with convictions more than
ten years old more leniently than offenders with more recent
convictions. But we are not convinced that the constitution
requires this distinction. This is a question of sentencing
policy, and the legislature, not this court, is primarily
responsible for adopting sentencing policies.19 We therefore
reject Dunns equal protection claim.20
Conclusion
Dunns sentence is AFFIRMED.
_______________________________
1 Anchorage Municipal Code (AMC) 9.28.020(A).
2 AMC 9.28.020(C)(1)(d).
3 See Anchorage Ordinance 2001-51 (eff. Feb. 27, 2001).
4 See Anchorage Ordinance 2001-150 (eff. Aug. 28, 2001).
5 See generally AS 28.01.010 (barring municipalities from
enacting traffic laws that are inconsistent with state law);
Simpson v. Anchorage, 635 P.2d 1197 (Alaska App. 1981)
(discussing what constitutes inconsistent with state law for
purposes of AS 28.01.010).
6 Monroe v. State, 847 P.2d 84, 89 (Alaska App. 1993)
(quoting Maeckle v. State, 792 P.2d 686, 689 (Alaska App. 1990)).
7 State v. Niedermeyer, 14 P.3d 264, 267 (Alaska 2000)
(quoting Concerned Citizens of S. Kenai Peninsula v. Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).
8 Concerned Citizens of S. Kenai Peninsula, 527 P.2d at
452.
9 See Ch. 60, 1, 58, SLA 2002.
10 U.S. Const., amend. XIV, 1, cl. 2; Alaska Const., art.
1, 1.
11 See generally Laurence H. Tribe, American Constitutional
Law 16-2, at 1438 (2d ed. 1988) (noting that equality can be
denied when government fails to classify, with the result that
its rules or programs do not distinguish between persons who, for
equal protection purposes, should be regarded as differently
situated) (emphasis in original).
12 AS 28.35.030(n) provides in relevant part: A person is
guilty of a class C felony if the person is convicted under (a)
of this section and has been previously convicted two or more
times since January 1, 1996, and within the 10 years preceding
the date of the present offense.
13 AS 28.35.030(b)(1)(D).
14 AS 28.35.030(n); AS 28.35.030(b)(1)(B).
15 See Svedlund v. Anchorage, 671 P.2d 378, 383 (Alaska App.
1983).
16 Anderson v. State, 904 P.2d 433, 436 (Alaska App. 1995).
17 Maeckle, 792 P.2d at 689.
18 Anderson, 904 P.2d at 436.
19 Id.
20 See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 272
(Alaska 2003) (Since analysis of equal protection claims under
the federal constitution is, if anything, more forgiving than the
approach we use under the Equal Rights Clause of the Alaska
Constitution, it follows from our conclusion that the state Equal
Rights Clause is not violated, that the federal Equal Protection
Clause is also not violated.).
