Summary of Alaska DUI Laws.
COMMON ACRONYM(S) USED TO DESCRIBE “DRUNK DRIVING”: DUI; DWI.
PROHIBITED VEHICULAR ACTIVITY: “operates or drives” a motor vehicle or “operates” an aircraft or watercraft.
Alaska courts have interpreted the term “operates or drives” broadly. A person “operates or drives” if the person is in “actual physical control”. This means that the person has “the ability to assert dominion, in the sense of movement over the vehicle. Alaska courts have held drivers to be in actual physical control where they were behind the steering column and were either controlling a vehicle while it was in motion or could have put the vehicle in motion.”
“Actual physical control” may also include a person sitting behind the wheel of a motor vehicle with the engine running, even if the vehicle is not capable of moving because it is stuck.
COVERED VEHICLES OR DEVICES: ”a motor vehicle” or “an aircraft or a watercraft”. A “motor vehicle” includes a snowmachine, and includes any vehicle that is designed and constructed to be self-propelled.
COVERED LOCATIONS FOR DRINKING-DRIVING OFFENSES: All locations, including public roads as well as private property. Includes boating while under the influence.
DRINKING-DRIVING OFFENSES: Includes (1) driving, etc., while under the influence of intoxicating liquor; (2) driving, etc., while under the influence of a controlled substance; (3) driving, etc., and within 4 hours thereafter having a BAC of .08 percent or greater as shown by chemical test (per se offense); and (4) driving, etc., while under the combined influence of intoxicating liquor and a controlled substance.
DEGREE OF IMPAIRMENT REQUIRED FOR CONVICTION: None specified in statute. However, a common jury instruction provides that one is “under the influence” of intoxicating liquor or controlled substances when the person’s “mental or physical abilities are impaired so that that the person is no longer able to drive with the caution that a reasonable person would exercise who is not under the influence.”
PENALTIES FOR DRINKING-DRIVING OFFENSES:
- For first conviction: 72-hour to one-year jail term; $1,500 to $10,000 fine; 90-day+ license revocation.
- For second conviction within 15 years: 20-day to one-year jail term; $3,000 to $10,000 fine; one-year+ license revocation.
- For third conviction within 15 years: 60-day to one-year jail term; $4,000 to $10,000 fine; 3-year license revocation; vehicle forfeiture.
- For fourth conviction within 15 years: 120-day+ jail term; $5,000 to $10,000 fine; 10-year license forfeiture; vehicle forfeiture.
- For fifth conviction within 15 years: 240-day+ jail term; $6,000 to $10,000 fine; 10-year license forfeiture; vehicle forfeiture.
- For sixth conviction within 15 years: 360-day jail term; $7,000 to $10,000 fine; permanent license forfeiture; vehicle forfeiture.
- For three or more convictions within 10 years – Guilty of class C felony. Minimum penalty if no prior felony is 120 days jail and $10,000 fine if current offense is 3rd DUI in 15 years. If current offense is 4th DUI in 15 years (but third in 10 years), minimum is 240 days jail. License revocation for felony is lifetime.
STATUTORY DRINKING-DRIVING PRESUMPTIONS:
If the driver’s blood alcohol concentration (BAC) or breath alcohol concentration (BrAC) is .04 percent or less – the person is presumed not under the influence of intoxicating liquor. BAC or BrAC of more than .04 percent but less than .08 percent – no presumption but admissible in evidence. BAC or BrAC of .08 percent or more – The person is presumed under the influence of intoxicating liquor.”
IMPLIED CONSENT LAWS:
- Tests permitted: Breath test for alcohol; blood for alcohol, and blood or urine test for drugs if accident involving death or serious injury; preliminary breath test.
- Type of advisement required: Recent case law suggests that if the refusal evidence is being used as circumstantial evidence of DUI, the following advisements are required as foundational elements for admission of the refusal evidence: 1) that refusal will result in license revocation; 2) that refusal may be used against the motorist in case arising from the arrest; and 3) that refusal is a crime. However, if the refusal evidence is submitted simply as evidence of the crime of refusal, it now appears that the only foundation required for admission is that the motorist was aware, or should have been aware, that he/she was legally obligated to submit to the breath test.
- Penalties for refusal: Refusal of chemical test is Class A misdemeanor, with same minimum and maximum sentences set forth above for DUI. Refusal of preliminary breath test is infraction. If the arrestee has two or more prior convictions for refusal or DUI in the 10 years preceding the commission of current refusal, it is a felony with same penalties as felony DUI above.
- Admissibility of refusal: Admissible in any proceeding arising out of same transaction.
- Administrative Per Se Law: 90-day to 5-year license revocation if BAC is .08% or more, or if refusal. The length of revocation is determined by the number of prior convictions within the 15 years preceding the current arrest.
CHEMICAL TEST LAWS:
- General requirements: Test is presumed valid if performed in accordance with methods approved by Department of Public Safety.
- Administrative rules & regulations: Adopted by Department of Public Safety.
- Disclosure of test information: Full information must be provided to driver or attorney upon request.
BLOOD-DRAWING STATUTE: AS 28.35.031(g) provides that a person consents to blood testing for alcohol, and blood and urine testing for drugs, if the person is involved in an accident causing death or serious injury to another. Similarly, AS 28.35.035 authorizes non-consensual blood test under similar circumstances (DUI arrest resulting in death or serious injury to another).
INDEPENDENT TEST STATUTE: AS 28.35.033(e) provides that the person tested may have a physician or other qualified person of his or her own choosing administer a chemical test in addition to the police test. A failure to obtain such a test does not preclude the admission of the police test. The fact that the person sought such an additional test and was unable to obtain one is admissible in evidence.
The Due Process clause of the Alaska constitution requires that police preserve a sample of the breath tested, or advise, and provide assistance to the arrestee in obtaining an independent chemical test. A violation of this right may result in suppression of the police breath test, or an inference that an independent test would have been favorable to the arrestee in refusal cases.
PLEA BARGAINING STATUTE: There is always the possibility of “charge bargaining”, in which the charge is amended from DUI to a lesser charge. If the defendant pleads to DUI, an agreed sentence may be negotiated. However, the court may not accept a negotiated sentence that is more lenient than the mandatory minimum sentence required by statute.
Trial Court Records: http://www.courtrecords.alaska.gov/eservices/home.page.4
IID limited licencse: http://www.doa.alaska.gov/dmv/reinst/PDFS/FAQ_Alcohol.pdf
DMV IID limited license: http://www.alaska.gov/dmv/reinst/PDFS/Limited_IID.pdf