|
You can of the Alaska Court of Appeals opinions.
|
|
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
| RICARDO MOLINA, | ) |
| ) Court of Appeals No. A-9570 | |
| Appellant, | ) Trial Court No. 3AN-04-7777 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2173 - June 20, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Ricardo Molina was convicted of felony driving under
the influence - that is, driving under the influence when he had
two or more prior convictions for DUI or breath-test refusal
within the preceding ten years.1 To prove the predicate prior
convictions, the State relied on a prior DUI conviction that
Molina had in Arizona.
AS 28.35.030(t)(4)(A) declares that a DUI conviction
from another state counts as a prior conviction for purposes of
Alaska's felony DUI statute if the other state's DUI law has
elements that are "similar" to the elements of DUI under Alaska
law - that is, elements similar to those contained in AS
28.35.030(a). The question presented in this appeal is whether
the definition of DUI under Arizona law is sufficiently similar
to Alaska's definition of DUI so that Molina's Arizona conviction
qualifies as a "prior conviction" in this state.
In Gunderson v. Anchorage, 762 P.2d 104, 114-15 n. 7
(Alaska App. 1988), this Court interpreted AS 28.35.030(a)(1),
the "under the influence" subsection of Alaska's DUI statute, to
require proof of a level of impairment that renders the driver
incapable of operating a motor vehicle "with the caution
characteristic of a person of ordinary prudence who is not under
the influence".
The wording of Arizona's DUI law suggests that Arizona
requires proof of a lesser level of impairment. Under Arizona
Revised Statute 28-1381(A)(1), it is unlawful "for a person to
drive or be in actual physical control of a vehicle ... [w]hile
under the influence of intoxicating liquor [or] any drug ... if
the person is impaired to the slightest degree."
Molina's argument hinges on the final clause of this
definition: "impaired to the slightest degree". Because the
Arizona statute allows a conviction upon proof of impairment "to
the slightest degree", Molina contends that Arizona's definition
of the prohibited level of intoxication is significantly broader
than Alaska's definition - and that, therefore, the Arizona
statute penalizes a significantly greater range of conduct.
Based on this analysis, Molina concludes that the elements of DUI
under Arizona law are not sufficiently "similar" to the elements
of DUI under Alaska law.
We have examined the Arizona Supreme Court decision
that first announced the "impaired to the slightest degree" test,
as well as later Arizona decisions interpreting and applying that
test. As we explain here, these court decisions show that even
though the Arizona test may be worded differently, it is
essentially the same as the Alaska test. We therefore conclude
that Molina's DUI convictions from Arizona qualify as prior
convictions for purposes of the Alaska felony DUI law.
Is the Gundersen definition of "under the influence"
mere dictum?
Before we turn to the Arizona cases
construing that state's DUI statute, we must first
address an argument raised by the State: the claim
that the Gundersen definition of "under the influence"
was not a holding of that case, but rather only dictum.
In Gundersen, the trial judge instructed the
jury that being "under the influence" and having a
blood alcohol level of .10 or greater were simply
alternative ways of committing the same offense - and
that the jurors did not have to be unanimous as to
which of these two theories was proved.2 On appeal,
Gundersen argued that the "under the influence" theory
and the blood alcohol level theory actually described
distinct offenses - and that, therefore, it was
unconstitutional to allow the jury to return a guilty
verdict unless the jurors reached unanimous agreement
as to which of these theories was proved.3
Here is our explanation of why we rejected
this argument:
We are satisfied that the state legislature
and the [Anchorage] municipal assembly have
... determined, as a legislative fact, that a
person with .10 grams of alcohol per 210
liters of breath is driving under the
influence of alcohol because, [with that
level of alcohol in the body, a] person's
physical or mental abilities [are] so
impaired that he or she no longer has the
ability to operate a vehicle with the caution
characteristic of a person of ordinary
prudence who is not under the influence.
In summary, we are satisfied that the
legislature and the municipal assembly
intended that the two approaches to driving
while intoxicated would simply be variant
ways of proving the same thing.
Gundersen, 762 P.2d at 114-15 n. 7.
There are two salient assertions in
this excerpt from Gundersen: first, that the
"under the influence" theory and the blood
alcohol level theory of DUI were simply
"variant ways of proving the same thing", and
second, that this "same thing" to be proved
was "[the impairment of] a person's physical
or mental abilities [to the extent] that he
or she no longer has the ability to operate a
vehicle with the caution characteristic of a
person of ordinary prudence who is not under
the influence".
These two assertions are not dicta.
Rather, they are necessary components of our
holding that the two subsections of the DUI
statute do not define distinct offenses, but
rather only one offense - and our resulting
conclusion that jury unanimity is not
required when a defendant is alternatively
charged with violating (a)(1) of the DUI
statute (the "under the influence"
subsection) and (a)(2) of the DUI statute
(the blood alcohol level subsection).
Why we conclude that the Arizona DUI statute requires
proof of essentially the same level of impairment as
the Gundersen test
As explained above, the Arizona DUI statute
defines the prohibited level of impairment as
"impair[ment] to the slightest degree". This test
comes from an eighty-year-old decision of the Arizona
Supreme Court, Hasten v. State, 280 P. 670 (Ariz.
1929).
At the time of the Hasten decision, Arizona
law defined the offense as "operating a motor vehicle
while under the influence of intoxicating liquor".4
The defendant in Hasten claimed that this language
meant "under the influence of intoxicating liquor to
the extent of impairing to an appreciable degree
[one's] ability to operate [a] car in the manner that
an ordinarily prudent and cautious man, in the full
possession of his faculties and using reasonable care,
would operate a similar vehicle under similar
conditions."5 The government, for its part, contended
that the statute encompassed "any influence of
intoxicating liquor, however slight".6
The Arizona Supreme Court rejected both of
these contentions, declaring that the true meaning of
the statute lay between the parties' competing views.
The court declared that the statute did not prohibit
driving whenever a person was under "any influence" of
intoxicating liquor. Rather, the statute prohibited
driving when the influence of intoxicants rose to a
level at which the person was "to some degree ... less
able, either mentally or physically or both, to
exercise the clear judgment and steady hand necessary
to handle ... [an] automobile". But the court also
held that if a person's ability to control a motor
vehicle was impaired by intoxicants, the statute did
not require proof of an "appreciable [i.e.,
significant] degree" of impairment, but rather only a
"perceptible degree" of impairment. Here is the
court's discussion of this point:
The expression, "under the influence of
intoxicating liquor," covers not only all the
well known and easily recognized conditions
and degrees of intoxication, but any abnormal
mental or physical condition which is the
result of indulging in any degree in
intoxicating liquors, and which tends to
deprive [a person] of that clearness of
intellect and control of himself which he
would otherwise possess. So one driving an
automobile upon a public street while under
the influence of intoxicating liquor
[violates the statute] even though he drives
so slowly and so skillfully and carefully
that the public is not annoyed or endangered.
In State v. Noble, 119 Or. 674, 250 P. 833,
the court distinguished between being "in an
intoxicating condition" [and being] "under
the influence of intoxicating liquor," and
held that [under] the latter phrase the state
was not bound to prove that the defendant was
drunk or intoxicated, but only to show that
he was under the influence of intoxicating
liquor to some perceptible degree.
Hasten, 280 P. at 671.
The court then noted that the
Arizona legislature had recently amended the
statute to allow prosecution of people who
were impaired by alcohol, even though these
people had not yet reached the stage of being
"intoxicated":
The Penal Code of 1913 (section 398)
prohibited any person "who is intoxicated"
from driving a motor vehicle. ... In
1927[,] the language was changed so that it
read "under the influence of intoxicating
liquor." Our Legislature ... evidently
became convinced that many persons who had
not yet arrived at [a] state [of
intoxication] were [nevertheless] a menace to
public safety when driving a motor vehicle[.]
. . .
With the increasing number and speed of
automobiles on our highways, and the
appalling number of accidents resulting
therefrom, it is not strange that the
[legislature] determined that any person, who
of his own free will voluntarily lessened in
the slightest degree his ability to handle
such vehicles by the use of intoxicating
liquor, should, while in such condition, be
debarred from their use.
Id.
The Arizona court then clarified
that the statute required proof of driving
while in a condition of impairment, and not
just proof that a person drove after having
imbibed intoxicating liquor:
Nor will it follow, as [the] appellant
seems to fear, that every man who has taken a
drink falls within the ban of the statute.
If that drink does not cause him to be
"influenced" in the ordinary and well-
understood meaning of the term, he is not
affected by the law. If he is so influenced,
he must bear the consequences of his
voluntary act by refraining from driving an
automobile while that influence lasts.
Id.
Eight years later, in Weston v.
State, 65 P.2d 652 (Ariz. 1937), the Arizona
Supreme Court was asked to revisit its
interpretation of the statute in Hasten. The
defendant in Weston contended that the
phrase, "under the influence of intoxicating
liquor", was unconstitutionally vague because
it encompassed both "imperceptible"
influences as well as perceptible influences.
As described by the court, Weston
argued that "the loose way in which the
statute [was] worded" allowed a person to be
convicted after having "indulged ... to the
extent of one drink only" - because "even
that small quantity [of alcohol] does
influence a person to some degree, ... even
though that one drink does not affect [the
person] perceptibly or cause him to act in
any manner differently from the way he would
have acted had he not taken it." Weston, 65
P.2d at 653-54.
In answer to this contention, the
Arizona Supreme Court reaffirmed that the
statute required proof, not just that a
person was under the influence of
intoxicants, but that this influence rose to
a level where the person's ability to operate
a motor vehicle was perceptibly impaired.
The court declared that the government was
obliged to prove that a defendant was "so
affected by intoxicating liquor" that the
defendant was "to some degree ... less able,
either mentally or physically or both, to
exercise the clear judgment and steady hand
necessary to handle as powerful and dangerous
a mechanism as a modern automobile with
safety to himself and the public." Weston,
65 P.2d at 654. The court then added:
The contention that [the statute]
authorizes the conviction of a person who has
taken only one drink, even though that drink
did not perceptibly affect him or cause him
to act any differently than he would have
acted had he not taken it, is without
basis[.] [W]hether one was under the
influence of intoxicating liquor within the
meaning of this statute depends not upon the
number of drinks he has taken[,] but on
whether those he did take affected him
sufficiently to bring him within its purview.
One drink might have this effect, depending
upon the person, while more than one drink in
the case of another would not [- ] for
intoxicating liquor does not affect all
people alike. ... The important query is,
Was the driver of the vehicle under the
influence of intoxicating liquor to the
extent that he did not have the clearness of
intellect or control of himself that he
otherwise would have had? ... [U]nless it
is made to appear [from the evidence] that he
was under such influence to this extent, the
jury would not be justified in ... finding
[the driver guilty].
Id.
Toward the end of the twentieth
century, the Arizona legislature amended
their DUI statute to define the offense in
words that echo the Hasten test. The statute
now prohibits operating a motor vehicle while
"under the influence of intoxicating liquor
[or] any drug ... if the person is impaired
to the slightest degree."7
It is true that the phrase "to the
slightest degree" could be read to suggest a
very stringent test. But this phrase was
judicially construed in Hasten and Weston
(indeed, the phrase originated in Hasten),
and we must therefore presume that the
Arizona legislature intended this phrase to
be understood as it was defined in Hasten and
Weston.8 This expectation is confirmed by
modern Arizona appellate decisions.
In State v. Morales, 10 P.3d 630,
631 (Ariz. App. 2000), the court noted that
Arizona Criminal Jury Instruction
28.692(A)(1) defines the phrase "impaired to
the slightest degree" as requiring proof that
"[t]he defendant's ability to drive a motor
vehicle was lessened to the slightest degree
by reason of being under the influence of
intoxicating liquor." And in State v.
Secord, 88 P.3d 587 (Ariz. App. 2004), it was
noted that the state's forensic expert
testified that a blood alcohol level of .08
percent "is the first threshold at which
scientists will conclude that a person is
necessarily impaired `to the slightest
degree' [as that phrase is understood in
Arizona law]." Id. at 596 n. 12 (Eckerstrom,
J., dissenting).
In other words, under Arizona law
impairment "to the slightest degree" means
essentially the same thing as the Gundersen
test. Both tests require proof that, because
of the influence of intoxicants, the operator
of a motor vehicle was deprived to a
perceptible degree of their normal mental and
physical capacity to control the vehicle.
For these reasons, we conclude that
the elements of Arizona's DUI statute are
"similar" to the elements of DUI under Alaska
law - and that, therefore, Molina's prior
conviction for violating the Arizona statute
qualified as a prior conviction for the
purpose of assessing whether he was guilty of
felony DUI in this state.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 28.35.030(n).
2 Gundersen, 762 P.2d at 114-15 n. 7.
3 See Gundersen v. State, Court of Appeals File No. A-2112,
Appellant's brief at 22.
4 Hasten, 280 P. at 670.
5 Id. at 670-71.
6 Id. at 671.
7This statute was originally enacted in 1995 as Arizona
Statute 28-2881. See Arizona Laws 1995, Ch. 147,
12. The statute was scheduled to take effect on
October 1, 1997. Before that effective date, the
statute was renumbered as 28-1381 by Arizona Laws
1996, Ch. 76, 3 (which likewise took effect on
October 1, 1997).
8See Patterson v. State, 708 P.2d 712, 716 (Alaska App. 1985)
("[I]t is a well-established principle of statutory
construction that when the legislature re-enacts
language that has previously been judicially construed,
[the legislature] is presumed to be aware of the
previous construction and to [be using] the language in
the sense given it by the court."), citing Hart v.
State, 702 P.2d 651, 655 (Alaska App. 1985). See also
Norman J. Singer, Sutherland on Statutes and Statutory
Construction (6th ed., 2000 revision), 49.09, Vol.
2B, pp. 103-112.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
